“Marital Presumption” Under Maryland Code Governs Issues of Paternity

Under Maryland law, children born or conceived during a marriage are presumed to be the legitimate children of both spouses. The issue of paternity is important to settle as early in a child’s life as possible, for emotional, financial, and legal reasons. Once a man is determined to be the father, he is under a legal obligation to support the child. In some cases, a person may attempt to dispute paternity and any resulting court order regarding child support or custody issues. This is a matter that courts take very seriously. If you are facing a paternity, child custody, or support matter, it is important to contact an experienced family law attorney who can help to preserve and protect your legal rights.

This law referenced above does not take into account a situation where the spouses cease living together, fail to enter into divorce proceedings, and the wife bears children with another person. Under these circumstances, the marital presumption would kick in and the husband would be presumed to be the father of any children born during their marriage, whether he was living with the mother or not. In a recent case, the couple married in 2000 but stopped living together soon after. Neither spouse sought a divorce. But in the years since their marriage, the mother gave birth to five children, four of them within the time period when the couple was “estranged”

Under the marital presumption law, the husband is the legal father of the children born during the couple’s marriage. Despite the fact that he had no relationship or contact with the children, the Montgomery County Department of Health and Human Services (the “Department”) initiated Child In Need of Assistance Proceedings (“CINA”) and notified the husband as a party. At the conclusion of a “best interests” hearing, the court denied the Department’s request to conduct genetic testing to disestablish paternity with respect to two of the five children. The husband then requested that the court review its decision to deny genetic testing, in order to divest him of legal paternity of the two children in question. The court denied the request, determining that there needed to be another “putative father” for genetic testing in order to satisfy the best interests of the child. The husband appealed.

The court of appeals reviewed the husband’s arguments but ultimately ruled that the lower court’s order was not reviewable by this court. The court pointed out that the lower court’s order denying genetic testing to determine paternity in the CINA action was not a final judgment and did not fall within one of the statutory exceptions under the law.

This case clearly illustrates the complexity of the family code and how it applies to certain cases. The court did not have an opportunity to address the substantive aspects of the case, due to the procedural requirements under the law.  In any family law case, whether it is a divorce proceeding or related matter, parties are encouraged to seek the counsel of an experienced family lawyer. Anthony A. Fatemi is a family law attorney with a great deal of experience representing parties throughout the state of Maryland.  For help with your family law needs, you are encouraged to contact us at (301) 519-2801, or to submit our online contact form.

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