Maryland Divorce Lawyer Blog
If you have doubts about paternity, it is important to raise them from the start. A 2007 appeal illustrates the danger of waiting until years pass to contest or inquire into paternity in Maryland. In the case, the court considered a challenge to paternity with respect to a child born during a short marriage. The father Patrick Ashley and woman were married in 1980. Before their marriage, the woman had dated Steven Reid. When they got together Ashley asked the woman to take a pregnancy test. She told him that the pregnancy test indicated she wasn’t pregnant. They got married. Eight months later, the woman gave birth to a son.
Shortly after that, the couple separated. The court issued a divorce judgment awarding the woman sole custody of her son, visitation to the man, and requiring the man to pay child support.
Over a decade later, the father began to doubt he was the son’s father based on visual observation, and got DNA testing. It revealed he wasn’t the biological father. Instead, the biological father was Reid, the man that the mother had dated just before getting married. Ashley filed a lawsuit to discontinue child support and request paternity testing. He alleged that the mother was pregnant with the son before they married. He also alleged that in 2004, he told the mother about the DNA test results. The woman asked if they should tell the son and asked if he thought the son would hate her.
The woman filed a motion to dismiss, and Ashley sought to add Reid as a defendant. The motion to dismiss, which was granted. Ashley filed an amended complaint to set aside the judgment. This was dismissed after the woman made a motion. The court filed an order to add Reid. The mother filed a motion to strike that order. The court granted the motion to dismiss and the motion to strike the order, relying on the paternity provision of Maryland law. That provision applies to children born out of wedlock and the son in this case wasn’t born out of wedlock. The court also found that “fraud” didn’t necessarily apply to this context.
Ashley appealed, arguing that a challenge paternity can be brought under Maryland Code § 5-1006 of the Family Law Article at any point before a child’s eighteenth birthday. The appellate court explained that a child born or conceived during marriage is presumed to be the legitimate child of both spouses. The mother argued that even if extrinsic fraud existed, Ashley would not be entitled to relief because the son was born during the marriage.
The appellate court explained that paternity can be established according to the Family Law Article or the Estates and Trusts Article. It also ruled that a lower court has discretion to order testing if it would be in the best interests of the child. In this case, the court had set child support based on an irrebutable presumption of paternity. The appellate court reversed on this point. It explained that if it wouldn’t be in a child’s bests interests to have blood tests reveal a de facto father was not the biological father, the court should consider that.
The appellate court vacated the judgment and called for the lower court to consider whether it was in the child’s best interests to order genetic testing. If you are dealing with sensitive family law issues, contact an experienced Maryland family law attorney for representation.
More Blogs:
Corporal Punishment in Maryland Family Law, Maryland Divorce Lawyer Blog, January 26, 2013
Untimely Objections in Maryland Family Law, Maryland Divorce Lawyer Blog, January 10, 2013