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Child Conceived During Marriage But Born After Divorce Is “Born Out of Wedlock” for Paternity Testing Purposes
(April 2011) By Colleen K. O’Brien
For more information, contact Paul
Farquharson.
Corbett v. Mulligan,
No. 1033 (Court of Special Appeals of Maryland, Mar. 30, 2011) | View pdf
The primary issue in this case was whether a child
conceived during marriage, but born after the couple divorced, was considered to
be “born out of wedlock” for paternity purposes. The Court held that the child
was indeed “born out of wedlock” and consequently, the man who had an affair
with the child’s biological mother while she was separated from her then husband
had a statutory right to a paternity test under the Family Law Article.
The facts indicated that the mother had a brief and stormy
affair with the paramour while she was separated from her husband. After the
affair, she reconciled with her husband, who participated in the birth of the
child. After the brief reconciliation, the husband and wife divorced, and the
paramour sought to establish paternity through a Complaint for Paternity, Child
Support and Visitation. The mother opposed the Complaint and the trial court
denied the request for paternity testing, finding that the former husband was
the legal father of the child. The paramour appealed, and the Court of Special
Appeals reversed.
The Court of Special Appeals explained that there were
two possible, applicable statutes in this case, either: 1) the Estates and
Trusts Article or 2) the Family Law Article. The paramour argued that the
Family Law Article applied and the mother argued that the Estates and Trusts
Article applied. Under Md. Code Ann., Fam. Law § 5-1029(b), a trial court
must order a paternity test on motion by a party. There is no discretion to
deny it. By contrast, under the Estates and Trusts Article, a blood test for
paternity is discretionary. This is because under Md. Code Ann., Est. &
Trusts 1-206(a), a child born or conceived during a marriage is presumed to
be a child of that marriage. The mother argued that because the child was
conceived while she was still married, the former husband was the legal
father. Because he was the legal father, ordering the paternity test was
within the court’s discretion, following the consideration of the best
interest of the child; the privacy right of the husband and wife; and the
petitioner’s interest in the child.
The Court examined both statutes and the applicable
case law. There was prior case law that interpreted the Estates and Trust
Article to only apply where a child was born in wedlock. Because the child
was born out of wedlock, the Family Law Article applied in this case.
Consequently, the appellate court reversed the trial court and ordered a
genetic test to determine the child’s paternity.
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