Zamani & Scott

Maryland Increases Options for Proving Paternity

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In its decision filed on December 4, 2017 in Faison v. MCOCSE, No. 1486, Sept. Term, 2016, the Maryland Court of Special Appeals clarified the availability of genetic testing to putative fathers doubting their paternity. Pursuant to Maryland law (FL § 5-1028), a signed Affidavit of Parentage establishes a legal finding of paternity. Thus, when a man signs an Affidavit of Parentage when a child is born, it is legally presumed that he is the father of the child. Within 60 days of signing the Affidavit, the individual may rescind and the presumption will vanish. However, if after the 60 days have passed, the man comes to believe he is not the child’s father, he may only challenge the Affidavit in court on the basis of fraud, duress, or material mistake of fact. Separately, FL § 5-1038 provides that a declaration of paternity is final, but can be modified or set aside if properly performed blood or genetic testing shows that an individual is not the child’s father.

Drawing a connection between the two statutes, the Faison court found that a man who had signed an Affidavit of Parentage, and several months later came to believe that he was not the child’s father, was entitled to genetic testing to determine whether he was in fact the child’s father, either to prove a material mistake of fact or to set aside a declaration of parentage. Relying heavily on the dissent’s analysis in Davis v. Wicomico Cty. Bureau, 447 Md. 302 (2016), the court held that the trial court should have granted Mr. Faison’s request for a genetic test:

Without the opportunity for a genetic test, the provisions of the Family Law Article would place [the putative father] in a complicated catch-22: he would be entitled to rescind the Affidavit if he can prove fraud, duress, or material mistake of fact, or to attempt to exclude himself as the Child’s father, but would have no way to obtain the one form of testing most likely to answer these questions.”

Faison at 14.

Bringing to the forefront the true purpose of the relevant statutes, the court found:

The Legislature did not intend to hold nonparents responsible for other people’s children, nor to encourage a court to avoid finding out the truth about a child’s parentage. So, when an alleged father signs an affidavit of parentage on the basis of a genuine but incorrect belief that he is the father of a child, and he later requests a genetic test to show whether he is in fact the father of the child, he is entitled to one.

Id. at 15 (citations and quotations omitted). Baring this recent decision in mind, if a man has doubts as to paternity, regardless of whether an Affidavit of Parentage has been signed, he should request, and receive, genetic testing to make a true determination.