Paternity and Legitimation

• Jurisdiction: Maryland

XIII. PATERNITY AND LEGITIMATION

A. Public Policy

One in 25, or about 4%, of fathers are unknowingly raising a child who is not biologically their own, according to a study in the Journal of Epidemiology and Community Health. They call this phenomenon "paternity discrepancy," and the rate is increasing. It can lead to relationship breakdown, mental health problems for both partners, and even domestic violence, while the children involved can experience low self-esteem and anxiety. What's needed, the researchers said, is clearer guidance on when and how to disclose such information. They believe individual and family support services and counseling should become part of paternity-testing procedures. In the United States, annual paternity tests have increased from 142,000 in 1991 to 310,490 in 2001. Researchers at the John Moores University in Liverpool, England, reached the estimate based on research findings published between 1950 and 2004.

Paternity proceedings were converted from a criminal to a civil proceeding in 1963. Proceedings to determine paternity are governed by Fam. Law §§ 5-1001-5-1048. Fam. Law § 5-1002(b)(1)-(3) outlines the purposes for its enactment:

(1) to promote the general welfare and best interest of children born out of wedlock by securing for them, as nearly as practicable, the same rights to support, care, and education as children born in wedlock;

(2) to impose on the mothers and fathers of children born out of wedlock the basic obligations and responsibilities of parenthood; and

(3) to simplify the procedures for determining paternity, custody, guardianship, and responsibility for the support of children born out of wedlock.

As restated in Dorsey v. English,⁴⁵⁷ "the clear intent of the statute is to impose upon both parents the obligations of parenthood by insuring that illegitimate children will enjoy the same right of support as legitimate children."

B. Gender Equality

In accordance with the Maryiand Equal Rights Amendment, parentage statutes must be construed to permit women the same opportunity to deny parentage as men. Since gender-based laws violate the ERA, paternity statutes must be construed to be gender-neutral as well. The law previously did not provide a woman who was "genetically unlinked" from a child, to deny paternity. In In re Roberto D.B.,⁴⁵⁸ surrogate Mother was contracted by the father of two fetuses to carry them to term. Father, using his sperm, had eggs fertilized from an unrelated third-party donor. Father then hired an unrelated surrogate Mother to carry the two viable eggs to term. Neither father of the children nor the unrelated surrogate wanted the unrelated surrogate to be named as Mother on the twin's birth certificates, as she had no genetic connection to the twins and she did not want to have any parental rights or obligations. However, the hospital typically submits the birth mother as the "mother" of the child for birth certificate purposes, thus birth certificates were prepared with the surrogate's name as "mother." Father and surrogate both petitioned to have her name removed. The court refused the petition, stating there was no law to remove Mother's name from the birth certificate and that to do so would violate the "best interest of the child" standard. The Supreme Court of Maryland found both arguments to be erroneous. The Court cited Health-Gen. § 4-211, which allows a court to issue a birth certificate without listing a mother. The court also construed the parentage statutes in Maryland to permit a woman the same opportunity as a man to deny parentage.

C. Statutory Network

Family Law §§ 5-1001-5-1048 governs paternity.⁴⁵⁹ It should be read in conjunction with Md. Code Ann., Estates and Trusts § 1-208 (2022) (hereinafter Est. & Trusts § ___), which defines "children of unmarried parents." Remember, when a third party attempts to establish paternity of child born to a married couple, Est. & Trusts § 1-208 governs. For example, in Stubbs v. Colandrea,⁴⁶⁰ the court denied a request for a blood test made to determine if the requesting party was the father to a child born in 1998. Under Fam. Law § 5-1029(b), however, when a third party attempts to establish paternity of child born to a married couple, Est. & Trusts § 1-208 governs. The statute presumes legitimacy and does not permit a mandatory blood test.

Nothing in the text of Fam. Law § 5-1002(c) or in its Maryland or federal legislative histories indicates that the General Assembly intended to alter the Turner v. Whisted test for determining whether a blood test should be ordered under the circumstances presented here, or that the federal government intended to require, under the circumstances presented here, a mandatory blood test similar to that provided by Fam. Law § 5-1029.

The court was correct in applying the best interest standard in denying the appellant's paternity request. Turner v. Whisted set out the balancing test a trial judge must use.⁴⁶¹ One of the factors is whether the father is significantly involved in the child's life. Here, the appellant last saw the child in December 1999. The child has no relationship with the appellant.

See also Kamp v. Department of Human Services, Garrett County Department of Social Services,⁴⁶² where the Court reiterated that the trial court must consider the best interest of the child prior to ordering requested testing. In this matter, testing was requested thirteen years after the child's birth.

Est. & Trusts § 1-208:

(a) In general-A child born to parents who have not participated in a marriage ceremony with each other is the child of the child's mother.

(b) Paternity of child-A child born to parents who have not participated in a marriage ceremony with each other is the child of the parent who did not give birth to the child if:

(1) The parent has been judicially determined to be the child's father in an action brought under Title 5, Subtitle 10 of the Family Law Article, and that determination has not been modified or set aside; or

(2) The parent and the child's mother consented to the conception of the child by means of assisted reproduction with the shared express intent to be the parents of the child, subject to the conditions under § 1-205(a)(2) of this subtitle if the child is conceived after the death of the parent.

(c) Rebuttable presumption-There is a rebuttable presumption that a child born to parents who have not participated in a marriage ceremony with each other is the child of an individual who did not give birth to the child if the individual:

(1) Has acknowledged himself or herself, in writing, to be a parent of the child;

(2) Has openly and notoriously recognized the child to be the individual's child; or

(3) Has subsequently married the mother and has acknowledged himself or herself, orally or in writing, to be the parent of the child.

...