Evans v. Wilson

856A.2d 679 Brett EVANS Trina WILSON. 123, Sept.Term, 2003.

No. Appeals Maryland. Court

Aug. (Thomas McKeon, Butler, MeKeon & Butler Bonnie J. Baltimore, brief), Associates, P.A., for appellant. on Sakellaris, K. & (Joy Wright, L. Constable Frederick Kobb Skeen, LLP, Baltimore, brief), appellee. on for C.J., RAKER, BELL, WILNER, Argued before CATHELL, HARRELL, GREENE, BATTAGLIA and JJ.

BATTAGLIA, J. Brett appeals judgment Evans Circuit Court for Baltimore for orders of City, dismissing complaints visita- Ja’Far, tion and to determine of Kendi Ateah daughter of Trina Wilson. Evans claims to be the biological Kendi, who was and born conceived while Wilson was man, married to another Askahie Harris. The Circuit Court ruled that the statutorily Evans had not overcome imposed presumption that Kendi legitimate was child Wilson and Harris and that ordering undergo genetic testing Kendi was agree child’s best interests. with the We Circuit and, herein, Court’s conclusion for reasons discussed shall affirm. Background

I.

A. Facts Evans met first Wilson in 1997 he began when for working Wilson’s employer, the Baltimore Prevention Coalition. Ev- dating ans started Wilson after he had worked at the Coalition approximately During two months. the relationship, Wil- son pregnant became and later terminated the pregnancy. Evans and Wilson broke up sometime between 1998 and 1999.

After Evans, her break-up in the fall of Wilson thereafter, Soon introduced Harris. two began serious dating that led to an relationship eventual marriage proposal by Harris. On October Wilson and Harris participated ain Muslim wedding ceremony performed by Muhammed, James a Muslim minister. Although Wilson and Harris acquired had not Maryland license marriage before the ceremony, they entered into “marriage contract.” Un- contract, der the Wilson agreed and Harris to various terms governing their marriage relationship, including they would have at least one and that the child would be raised Muslim. Wilson and Harris lived together after the agree- to a pursuant in mother’s house lease

wedding Wilson’s had in October of 2000. they signed ment that in experiencing problems and Harris Wilson were When the of 2000 and Wilson marriage during new winter their later, weeks a chance encounter with Evans. Several had apartment visited Evans’ February or March of Wilson him. stated that this sexual intercourse with Wilson and had had with Evans while time she intercourse only was however, testified, he Evans and married Harris. occasion, more than one sexual intercourse on Wilson had April occurring last Harris Evans. seeing to live with while

Wilson continued Evans, fact, the time of Wilson’s affair with Wilson In around Then, May baby. to conceive a began trying Harris and pregnant. that she was She estimated Wilson learned that, cycle, the date of was monthly conception on her based 22,2001. April approximately that, after during testified and

Wilson and Harris that Harris the father. Wilson they believed was pregnancy, during pregnancy by that Harris assisted her stated she during day with her because was staying home nauseous, by for the shopping baby, helping with her Although Harris did not attend arrange nursery. he November of because baby shower Wilson’s friends, believing that Harris girl thing,” it “a thought was father, for him to celebrate the organized party was imminent birth. testified, however, that, during pregnancy,

Evans Wilson’s he of Wilson’s child. was led to believe that he Evans, him that According pregnant told she was Wilson spent nights that he his child. Evans stated numerous learning pregnancy after he home Wilson’s setting by painting up birth helped prepare Wilson that, spent he baby’s though room. Evans stated even home, he did not realize that she was Wilson’s nights bought He testified that he during pregnancy. married shower for baby baby clothes and attended Wilson November gave January birth to Kendi on 2002. On that

Wilson business, was in on so he day, Virginia Harris could not attend even planned the birth he had to do so. at the though While birth, hospital following approached Wilson was about that, a birth completing certificate Kendi. She was told only parent only because she was the she fill present, could father, out her portion and the at some later application, time, complete have would an affidavit of to be parentage the father on named as Kendi’s birth certificate. When trip, Harris returned from his he took Wilson and Kendi home from hospital. did not complete Harris affidavit at the was in parentage because he a rush take hospital Wilson and Kendi home and was not aware of the birth procedures. later, certificate Several months on November 28, 2002, Harris completed affidavit Kendi’s parentage; certificate, birth subsequently, issued names Harris Wilson, According father. several weeks after arriving home, prepared she and mailed birth announcements that identified Harris as Kendi’s father.

Evans was also out of town on January 19 and did not however, birth; Kendi’s attend Wilson called parents, Evans’ who visited Kendi in hospital day. that Evans testified days he visited Kendi three Wilson after arrived home from hospital. that, birth,

Evans claimed after the Wilson continued to to Evans suggest instance, that he was father. Kendi’s For Evans received card from Wilson congratulating him and him, wishing “Happy Parenting.” The card stated: we “When met ... never have would that we thought would have a life Now together. created here we are more 5 yrs. than parents Wilson, later the of a baby girl.” beautiful while at hospital, also birth prepared announcement identi- Kendi, but, fied Evans as the Wilson, according family never sent them to and friends. When Kendi was old, one month nearly Wilson sent Evans Valentine’s Day stated, Daddy,” and “For Day, “Happy card Valentine’s A card sent birthday later Daddy your from sunshine.” you and “It’s of Kendi said: pictures to Evans from Wilson showed Ja’Far, you. Happy and I love my daddy Kendi Brina me. Day birthday Both the Valentine’s and Birthday Daddy.” “Brina,” using hybrid Kendi name cards referred to names. of Evans’ and first Wilson’s Wilson, with correspondence this written all of According game” that she part birth was of a “sick Evans after Kendi’s she terminating felt over guilt had devised because Wilson stated dating. she and Evans were pregnancy when this some game that she Evans out” address “played and their lingered break-up. that after the “unresolved issues” the name “Brina” in the cards that she had used Wilson said she Evans created the name that and had because that was Evans testified that during pregnancy. her first She also he was suggested whenever she pretending knew she was Kendi’s father. since was six old.

Evans not seen Kendi she weeks has life, Kendi’s Evans visited Kendi the first few weeks of During mother and father at Wilson’s home. Evans’ several times has Kendi a number of occasions. Evans also have visited on than to Kendi other provided support purchasing baby throughout 2002. supplies worth of approximately $80 Harris, hand, has only other is man Kendi on the him and “Daddy,” partici- as father. She calls he known parenting, tasks such routine involved pates many her helping she is sick and caring pay for Kendi when food, spends Harris testified he daycare, clothes. work, after takes her the movies every day time with her He, Wilson, and television with her. occasionally, and watches and, weekends, they play eat on together games Kendi zoo. that Kendi attached park visit the or Harris believes her, because, him has to leave she often becomes when he cries. very upset History

B. Procedural 2, 2002, On December Evans filed in the Circuit Court for Baltimore aCity Complaint for Order of Visitation in which he alleged that he was Kendi’s father and requested a specific schedule of visitation. Wilson answered the on Complaint January 2003 and denied that Evans was Kendi’s father. Then, 23, 2003, on June Evans a Complaint filed to Determine Paternity, alleging that he had engaged a sexual relation- ship Wilson that lasted until March 2001 and that Wilson had become pregnant that month. Evans also requested that the court order the parties and Kendi to submit to blood or genetic testing for the purpose of establishing Kendi’s paternity. Wilson filed an answer to Evans’ complaint and again denied that Evans was Kendi’s father. She further that, instead, claimed Kendi was the child of Harris to whom Wilson was married “at the time of the conception Child’s birth.” 15, 2003,

On August Judge Marcella A. Holland held a hearing to consider whether to order paternity testing or visitation. After hearing the testimony witnesses, various Evans, Wilson, including Harris, Judge rejected Holland that, Evans’ claims. She reasoned because Kendi was born while Harris, her mother was married to she is presumed by law to be the Therefore, married couple’s child. in Judge view, claim, Holland’s on succeed Evans had to over- come that presumption and demonstrate that a paternity test would be in the best interests of the child. She determined that Evans failed to overcome the presumption because he had not presented sufficient evidence of a bond “strong between him and the child.” Judge Holland stated that there may be a suspicion father, that Evans is Kendi’s but she refused to “destroy family unit based on suspicion.” In the Judge’s view, the degree to which Evans suspicion cast on Kendi’s did not parentage justify ordering genetic testing that would “dismantle” an intact unit family and not serve Kendi’s best interests. Accordingly, Judge Holland issued an order on August 2003 dismissing Evans’ complaints. September On judgment Evans’ post Holland dismissed Judge motion reconsideration. Special timely appeal Appeals,

Evans filed a to the Court court, we a writ of before issued any proceedings but Wilson, certiorari on our own initiative. Evans 379 Md. (2004). following ques- presents 841 A.2d 339 Evans tions for our review: err interests” applying

1. Did the trial court “best estab- analysis request Mr. Evans’ considering when of Ms. marriage lish of a born after Wilson and her husband? err automatically permitting

2. Did the trial court Evans, test of Mr. upon request blood or genetic “putative father?” applies the best

3. standard still Assuming interest[s] a child putative to a father’s for a blood request test trial in its marriage, born did the court err during application of standard? constitutionally Did Mr. Evans’ the trial court violate deny him

protected liberty process interest due complaint paterni- law when it dismissed his establish ty? denying hold trial court no

We that the committed error Kendi, test nor request mandatory paternity Evans’ of interest any constitutionally protected liberty did it violate law, pre- enjoyed by Maryland Evans. Under Kendi is Harris, at the child of Wilson and who were married sumed of her The Circuit considered correctly time birth. Court and, in denying paternity testing Kendi’s best interests before Furthermore, abuse its we doing, so did not discretion. constitutionally no interest protected conclude that Evans has Harris; of Wilson and having relationship in the child of consequently, process no violation due occurred when petition for a test. rejected Circuit Court

623

II. Standard of Review Our review of the Circuit in Court’s order this case legally centers on whether the order was correct. v. Walter Gunter, (2002). 386, 391-92, 609, 367 Md. 788 A.2d 612 If the order reviewed an being interpretation involves or application law, of Maryland statutory or case our de review is novo. 392, If, at hand, 788 A.2d on the other judge trial correctly law interpreted applied and the matter falls court, within the sound ordinarily discretion the trial we judgment, defer the trial court’s “it is recognizing position the best to assess the import particular facts case observe the demeanor credibility 703, 688, witnesses.” Boggs, Beckman v. 337 Md. 655 A.2d (1995) Petrini, 901, 453, 470, 908 Petrini v. (citing 336 Md. 648 (1994)). 1016, Questions A.2d regarding the best inter of a ests child fall within generally the sound discretion of the trial court and will ordinarily not be disturbed absent a clear Walter, abuse discretion. See Md. at 788 A.2d 612; Crane, 133, 144-45, 351 Md. 716 A.2d Giffin (1998); Beckman, 909; 337 Md. at 655 A.2d at Palma, (1992). Voisham v. Md.

III. Discussion Evans contends that the Circuit Court erred in applying best interests of the child standard in determining that Kendi ought have blood test conclusively establish her that, paternity. rather, He submits the court should have then, mandated a test of Kendi and himself and after results, learning the considered the best interests of Kendi determining issues of visitation. argues Evans in the alterna- that, if tive even the “best interests” standard controls the decision of whether to a paternity case, order test in this Circuit Court “erred in application its of that standard” be- it cause failed to balance Evans’ interest him- establishing self as a against Wilson’s interest in preserving her family. intact Evans’ argument final is that has a he “consti- tutionally protected liberty interest opportunity develop a relationship” with Kendi and that the Circuit Court deprived him of that opportunity without due process law. that, holding in position under

Wilson advances (1992), Whisted, A.2d 935 327 Md. Turner v. to use the “best interests” standard Court was correct Circuit Kendi, a mar- during who born determining whether child of legitimate Wilson riage presumed and is Harris, genetic to submit to blood or required should be that Court maintains Circuit testing. Wilson further request Evans’ denying discretion when exercised its properly agrees with the Circuit Court’s paternity for a test. Wilson test in this case would be ordering paternity a assessment test interests because the would “risk contrary to Kendi’s best to Evans’ family.” a As breaking supportive stable apart claim, argues that no constitutional process” Wilson “due and, therefore, has no stake Evans liberty interest is at Kendi’s respect obtaining to due process entitlement test. paternity Applies The “Best Interests” Standard

A. we present controversy, first must To resolve judge concluding trial was correct whether the determine test in this paternity of whether to order decision evaluation of the best interests depended case on an relate Maryland sets of under Code provisions child. Two ascertaining One method for determinations. Code, 1-206 and Maryland can be Section found (1974, Repl.Vol.). Article 1-208 of the Estates Trusts l-206(a), pre purposes, creates testamentary Section born to a married moth “legitimacy” for children sumption er:

(a) during child born or conceived Marriage parents. —A child of both legitimate to be the is marriage presumed at any a child born provided § spouses. Except in marriage have parents participated time after invalid, other, is marriage even if the with each ceremony of both legitimate parents.1 to be the presumed statutory presumption suggesting should not Apparently case, that, when Wilson and Harris were apply in Evans mentions this l-206(a) Code, § of the Estates and Trusts Article Maryland (1974, 2001 Under this the husband is RepLVol.).2 provision, of the child born presumed during father to his wife marriage. hand, parents the other when a child is born have

On to who other, participated not with each marriage ceremony Section 1-208 of the Estates and Trusts Article establishes determining rules for mother child’s and father: (a) parents his mother. —A child born to have Child who of not in a participated marriage ceremony with each other shall to be the of mother. be considered child his (b) born parents Child his child who have father. —A in a other participated marriage ceremony each be shall to be the child of if only considered his father:

(1) judicially Has been determined to be the father in an brought action under the statutes relating proceedings;

(2) himself, Has acknowledged writing, be the fa- ther; married, note, however, they marriage had not obtained a We license. statutory presumption dependent that the is not on whether the man procured marriage and necessary woman license. All that is for the

presumption apply is that the “participated husband and wife have marriage ceremony with each It other.” cannot be denied this case, requirement given has been in this established the uncontradicted testimony participated marriage Wilson Harris in a Muslim ceremony on October Article, 2. Section 1-207 of the Estates and Trusts which is referenced in adopted Section involves children and is not relevant for the purpose present of the discussion. It states: (a) adopted General Rule.—An child shall be treated as a natural adopting parent parents. adoption, child his or On a child no longer shall parent, except considered either natural upon adoption by spouse parent, of a natural the child shall be parent. considered the child of that natural (b) adoption. More than one adopted child who has been more —A than once shall parent be considered to be a child parents or adopted recently who have him most and shall cease to be considered previous parents. a child of his

(3) notoriously recognized the child to be openly Has child; or ac- (4) married the mother and has subsequently Has himself, writing, or in to be father. knowledged orally Article. Code, § 1-208 the Estates Trusts “Paternity Pro statutory provisions governing Other Code, 5-1001 Maryland are located Sections ceedings” (1984, 2001 Repl. Law Article 5-1048 of through Vol.). 5-1002(b) sets forth the those purpose Section subtitled, sections, “Paternity Proceed collectively which are Act”): (hereinafter “Paternity ings” this subtitle is: purpose of (1) and of general to the welfare best interests promote them, out of wedlock for as by securing children born care, rights support, the same to nearly practicable, wedlock; education as children born in and (2) the fathers children born impose to on mothers and of and of obligations responsibilities of wedlock the basic out and parenthood;

(3) procedures determining paternity, to the for simplify custody, support and for guardianship, responsibility children out of wedlock. of born 5-1002(b) Article. Code, Family § of Law Section 5-1029 genetic testing or availability establishes the blood It proceeding Paternity a under Act. parties paternity to in relevant part: states Support motion of the Enforcement Adminis- [Child

On the tration], motion, to the or on its own party proceeding, mother, child, alleged father to court shall order tests whether the genetic to blood or to determine submit being father can be excluded as alleged child. 5-1029(b) this

Code, § of the Law Article. Under no over order a trial court has discretion whether provision, Langston test. 359 Md. genetic Riffe, a blood or See (2000). Instead, motion, the upon any party’s A.2d mother, child, presiding court “shall order alleged undergo paternity testing. father” Whisted, Court, in This Turner v. 327 Md. A.2d 935 (1992), opportunity had the consider whether the determi- governed by nation should the Estates and Paternity Trusts Article or the Act in question when child was born an during marriage, equita- we concluded that ble action under the Estates and Trusts Article the best establishing way such case. Id. at at A.2d 938. Turner had a sexual an relationship with unmar- woman Id. pregnant. ried who became born, however, 936. Before the child was the woman married another man and delivered the child during marriage. Id., birth, 607 A.2d at 936. Six months after the the child’s Id., mother and her separated. husband 607 A.2d at 937. wife, separated While from his the husband continued to visit regular the child on a paid support basis and child’s husband, After leaving care. her the child’s mother again Turner, started seeing who was then able to develop rela- tionship with the Eighteen child. Id. months renewing after relationship, their Turner and up, the child’s mother broke and Turner’s contact with the came an end. Id. sued,

Turner an seeking visitation and order for a blood test paternity. child to determine his Following deci- in sions the Circuit Court and of Special Appeals Court denying Turner’s requests, this Court issued a writ certio- rari to determine whether Section 5-1029 of Family Law Article, the mandating statute that a child submit to a blood test, was appropriate 111, for situations like Id. Turner’s. at 607 A.2d at rejected 937. We that the proposition case necessarily by the provisions controlled of Section 5-1029. 112, Instead, Id. at 607 A.2d at 938. we declared that may actions be under either pursued provisions of the Law or Article in equity under the Estates and Trusts Article. Id.

Nevertheless, we concluded “an action establish paternity is more appropriately under the brought Estates & a during issue has been born Article” when the at

Trusts 113, explained, at As at 607 A.2d 938. we marriage. Id. and “where two men “legitimate” a child is presumed where child, for procedure of that acknowledge paternity” each the Estates and considering the issue of under it the “more is because preferable presents Trusts Article establishing pater- means of satisfactory” and “less traumatic” Solis, 113, A.2d at 938 Thomas v. (citing 327 Md. at nity. (1971); 536, 544, 777, 781 Dawson v. 283 A.2d 263 Md. (1970)). A.2d Eversberg, 257 Md. We and motion for a blood test under Estates a compared examination under physical for a request Trusts Article with ,3 to grant the court has discretion Rule which Maryland 2-423 view, A.2d our at 939. In for cause. Id. at good decision under the discretionary of the court’s aspect of the com- permits Trusts Article consideration Estates and at Id. at 607 A.2d at 939. For peting interests issue. the husband and wife’s the court “must” consider example, interest rela- petitioner’s interest with the privacy along though, we significantly” the child. Id. “Most tionship with discretion, that, may court its recognized applying child.” interests of the consider “the best We further: explained 940. best interests in determining criteria for the child’s of the include consideration disputed paternity cases environment, current home whether stability of the child’s unit, family physical, and the child’s ongoing there is an Maryland 2-423 Rule states: party or or physical the mental or condition characteristic of When legal custody party person or under the control of a is of a may party controversy, order the to submit to a mental or the court by suitably examiner or physical licensed or certified examination custody person in the or under the produce for examination may only legal party. The be entered on motion control of the order person and to good upon and notice to the examined cause conditions, manner, place, specify the parties. all It shall time person persons by whom it scope examination and the or may filing regulate the of a to be The order distribution made. testimony findings and the at trial report of and conclusions examiner, payment expenses, any and other relevant matters. mental, emotional An important and needs. consideration is the child’s with the father. past relationship putative Final- other ly, might factors even include the child’s ability to ascertain for genetic information purpose medical treatment genealogical history. 116-17,

Id. at 607 A.2d at 940. case, Turner, (one In the in present like two men mother’s husband and the other her one time claim paramour) that, be the father of a child during marriage born so Turner, we in provisions made clear of the Estates and set Trusts Article forth the appropriate procedures analyz- ing question of a child’s such case. The application provisions of those to this case straightforward. Under the presumed Section Kendi is child of Wilson Harris, blood or test genetic may be ordered only upon showing good cause presumably of sufficient persua- sive force to overcome the statutory presumption. When making cause, the determination of good the court must weigh and, the various interests of the parties in particular, consider whether or genetic blood would be in best testing interests Court, therefore, of Kendi. The Circuit correctly followed the precedent in Turner and deny made decision to Kendi’s blood or test genetic based on an assessment the child’s best interests. however,

Evans argues, that Turner has lost some of its authoritative value in light of several amendments to the Family Law Article and our more recent opinion Langston (2000). v. Riffe, 359 Md. He alleges that these developments in the represent law an expansion of “the rights putative fathers” to the extent that a “putative has an right absolute to demand blood or genetic testing [of at any Although time.” child] Evans is correct “putative fathers” now greater rights have challenge pater- declarations, nity the expanded rights he which refers do not apply is, position. individuals as we That explain below, greater detail because Kendi not born out of wedlock, Evans is not her “putative father.”

630 decision, the the Turner General

It is true since of changed legal landscape have and this Court Assembly Article. Proceedings” by Family Law governed “Paternity in 1994 when we filed our decision The began transformation (1994), W., Tyrone Md. A.2d 439 Tandra S. 2-535,4 that, a trial judge Rule Maryland where we held under of alter or amend judgment could set or otherwise aside “fraud, mistake, in the of days only event after paternity 315, 648 A.2d at 445. Id. ... or clerical error. irregularity,” men, holding, of who had been As a two consequence paternity judgments separate named fathers two as fraud, mistake, or cleri- irregularity, who had not established error, support, to continue required paying cal were they biological were not despite strong evidence at 448. fathers. 648 A.2d decision, the General Assem- after the Tandra S. year The Article, to Law bly amended 5-1038 Section challenge an father to way adjudged an alternative provide Laws, See ch. 248. Maryland judgment paternity. of 1038(a)(2)(i)(2) language permits of Section amended 5— if aside at time blood or any be set paternity judgment Maryland provides: 4. Rule 2-535 (a) days entry any party Generally. filed within 30 after On motion of power judgment, may revisory and control over of the court exercise and, court, may judgment if take the action was tried before it could have taken under Rule 5-534. action that mistake, (b) Fraud, any any party irregularity. On of filed at motion time, revisory may power and exercise control over the court fraud, mistake,

judgment irregularity. of or in case (c) any party within Newly-discovered On motion of filed evidence. entry may grant a days judgment, of the court new trial on after ground newly-discovered could not have been of evidence that by diligence pursuant a new trial due in time move for discovered Maryland Rule 2-533. orders, (d) judgments, or Clerical mistakes. Clerical mistakes any may by the court at time parts the record be corrected other of initiative, notice, any party after if on motion of such on its own or During appeal, any, pendency of an such as the court orders. appeal may be so before the docketed mistakes corrected court, appellate appellate with leave of the court. thereafter genetic testing establishes that the named father is not the father of child. 5-1038 biological provides: Section now (a) ft:nal; {1) Declaration Ex- paternity modifications. — (2) provided subsection, cept paragraph this in an declaration order is final.

(2) (i) A may declaration of or modified set aside: in the manner and to the order any extent or

decree an equity subject court is the revisory power law, rule, under any court or established principle of in practice procedure equity; or 2. if a blood or test genetic § done in accordance with 5- 1029 of this subtitle establishes the exclusion of the individu- al as the in the' named father order.

(ii) (i) of Notwithstanding subparagraph this paragraph, declaration of may not modified or paternity set aside if the individual named in order acknowledged paternity he was knowing not the father.

(b) orders subject Other to Except for a modification. — declaration of the court set paternity, may modify or aside any order or an part of order this under subtitle as the just court proper considers in of the light circumstances the best interests the child. Code, § 5-1038 of Family Law Article.

In we Langston, had occasion to interpret aspects two Section 5-1038 403, as it was in 1995. amended 359 Md. at 754 A.2d at 392. We separate consolidated three cases in which individuals had unsuccessfully sought genetic blood or to testing overturn Each paternity judgments. judgment had been entered before the 1995 amendment to the statute. Id. 399, at 754 A.2d at We 390. held that the amended statute applied retrospectively paternity judgments to issued before 417-18, law’s effective date on October 1995. Id. at Thus, A.2d at men who had been declared fathers by the court move, before that date could pursuant to Section 5- 1029, to reopen paternity for blood proceedings genetic or at testing. 754 A.2d at 411. or Langston availability further blood

We held any 5-1029 did not on genetic depend under Section testing because, of the child” when an analysis of “the best interests in which he is declaration of challenges individual test, genetic moves a blood named the father and then or Id. at the trial court must 754 A.2d at grant request. holding follows: 410. We summarized this 5-1038(a)(2)(i)2 section of the [pursuant In ... proceedings Article], motion, may, by Law Family putative test, pursuant to genetic a blood or section request which paternity, or is admissible deny order confirm A of that statute. determina- provisions evidence under ordering the interests of the child in tion best paternity, or in the consideration of testing, requested revised, or original inappropriate. whether or today applies only modify holding proceedings Our declaration; or modify aside a an attempt set an paterni- from any resulting original set aside other order 5-1038(b). ty governed declaration is Id. 754 A.2d 411.5 amended the “Paterni- Assembly again

In General Article, Law ty adding subtitle of Proceedings” 5-1002(c), “Nothing may states: this subtitle Section which of a father to file a right putative be construed to limit the a paternity Maryland to establish his of child.” complaint 5-1002(c) (1984, Code, Family Repl. the Law Article 1999 § of 386, Gunter, (2002) v. 367 788 609 5. Evans also cites Walter Md. A.2d rights "putative support argument the of fathers” have been however, Walter, applicable present expanded recently. to the Rather, interests” application of of the "best standard. discussion the Walter, paternity judgment the explored we the effect of a vacated on 392, arrearages. support Id. at 788 A.2d at 612. child named father’s judgment paternity a in that case had vacated The Circuit Court order, the prospectively support related child but court terminated the support obligations the named past the child for which did not excuse court This Court held the trial erred father was arrears. Id. declaration, because, vacating putative "upon paternity a arrearages emanating obligated support child legally from cannot at resulting paternity declaration.” Id. from now-vacated orders 619. 788

633 Vol). this Legislature language The added Section 5-1002 may for the of that a file purpose “clarifying putative father a Laws, ch. paternity Maryland action.” 1997 Langston The coalescence of the 1995 and 1997 amend- ments to the of “Paternity Proceedings” Law Article into whether brings question holding our in Turner has been mandatory invalidated so that genetic blood or testing of 5-1029 is now challenge Section available to an during marriage. of child born intact of Special Appeals recently Court this issue addressed (2004). Colandrea, in Stubbs Md.App. A.2d 361 case, us, In that like in the case before a man that he alleged was the father of a child and born during conceived mother to a marriage child’s different man. Id. whether, question A.2d at 362. The court faced the of motion, or upon genetic a blood test of the petitioner’s 5-1029(b). mandatory child was under Section Id. at court, Judge Rodowsky, writing A.2d at 365. for the first 5-1002(c), explored the effect of which prohibits any Section construction that would limit right statute “putative father” to action file an to “establish of a 5-1002(c) Code, § child.” (citing Maryland of the Family Law RepLVol.). Article As Judge Rodowsky ex- plained, “putative father” is one who has fathered “out of wedlock”:

Although “putative father” is not a defined term Act, Paternity term has quoted legal meaning. a settled Law Black’s defines Dictionary “putative father” mean alleged biological father of a child born “[t]he out wed- (7th ed.1999). lock.” Black’s Dictionary Law meaning That the dictionary “putative father” was intend- ed the General by Assembly using when term in 5-1002(c)] (c) [Section is confirmed construing subsection with the compatibly balance [Section which 5-1002] (c) subsection was added.

Id. at 841 367. support A.2d at As for the dictionary definition “putative Judge of father” Rodowsky quoted Section

634

5-1002(b), the of the purposes pater- which that one of states welfare best interests general to the nity “promote act is wedlock.” Id. 684, at A.2d 367 of children born out of at 5-1002(b) Code, of the Law Article § Maryland (citing added). (1984, (emphasis Spe- The Court RepLVol.)) “ 5- thus that the ‘child’ [Section cial concluded Appeals Id. As 1002(c)] to child born out of wedlock.” further refers a father,” “putative the of the term support reading for court’s extensively history Judge Rodowsky legislative reviewed 5-1002(c), focusing legis- on the federal specifically of Section Id. 684, 841 A.2d at lation that its enactment. at precipitated court 367.6 The held: Rodowsky 5- Judge the court in Stubbs observed Section 636, 1002(c) Assembly Senate Bill was introduced in the General as Responsibility legislature's response to the Personal and Work state Act”). (the Id. Opportunity Act of "Federal at Reconciliation Act, attempt an the Federal 841 A.2d at 367. He noted that pregnancies,” in "out-of wedlock conditioned combat receipt increase certain Id. assistance on federal standards. of continued federal Judge according to at A.2d Senate Bill Rodow- at 368. sky, comply these in an effort to standards was then recommended 666(a)(5), § declares "each State must as well as U.S.C. which procedures ... requiring the use of [certain] have in effect laws support program.” [child enforcement] of the increase the effectiveness 666(a)). (quoting § 42 U.S.C. One such Id. procedure 841 A.2d at 369 by "genetic paternity test- concerned establishment ing”: (i) required in testing certain contested cases. Procedures Genetic required, is in a contested case under which the State law) (unless by require and all otherwise barred State request any genetic upon tests parties ... submit to other by request supported party, if sworn statement such party— (I) establishing paternity, setting facts alleging forth reasonable parties; possibility requisite contact between the or sexual establishing (II) setting denying paternity, and forth facts reason- of sexual contact between the possibility of the nonexistence able parties. 666(a)(5)(B)), Judge (quoting § 42 U.S.C. Id. at 369 Act, quoted Report on Federal which Rodowsky also a Conference " provisions have the Act a number of new stated that ‘contained " (citing Rep. No. parallel no (1996)). current law.' Id. H. 104-725 direct Report unique provision one The Conference described such "Standing Putative Putative fathers must have Fathers. follows: (quoting H. opportunity to initiate a action.” reasonable discussion, (1996)). Rep. on this Court No. 104-725 Based 5-1002(c)], in

Nothing Maryland the text of or in [Section its histories, legislative or that federal indicates the General alter Assembly intended to for Turner Whisted test a determining whether blood test should be under ordered here, the circumstances that the presented or Federal Gov- circumstances require, pre- ernment intended to under here, mandatory sented a blood provided test similar by [Section 5-1029].

Id. at A.2d at 369-70. court distinguished opinion Langston Stubbs also our in it, ground 5-1002(c), on like Section dealt with children born out of at wedlock. Id. at Judge Rodowsky also stated that was Langston inapplicable seeking because it concerned a putative disavow his obligation rather than an support requesting individual establish Id. paternity blood test. Consequently, Turner, following appeals of that “a Special Court held request to establish paternity by a blood test ... to be evaluated under 1-208 of the Estates Trusts [Section Id. Article].” us, well,

Judge Rodowsky’s leads persuasive analysis conclude that the Assembly General intended the of language 5-1002(c) Section to ensure the protection and of support Therefore, children born out wedlock. we agree with the 5-1002(c) Special Court of Appeals the effect of Section us, does not reach the situation before where Evans seeks to paternity establish of a child born during marriage. agree We also with the Stubbs Langston court that does not affect holding our Turner. As the of Special Appeals Court observed, Langston involved cases where the men who had been judgments declared fathers in paternity to ex- sought clude biological themselves as the fathers children born out (he that, context, Special Appeals determined when read federal 5-1002(c)

impetus for providing Section aimed "fathers establishing children born out of an wedlock” avenue for their purpose “honorfing] obligations.” for support their 841 A.2d at 369. Turner, contrast, case in the By present of wedlock. sought, men petitioning born in wedlock and children were legitimacy, of marital to establish presumption to the contrary obtaining rights. hopes visitation Moreover, repre- interests” standard considering “best born evaluating during when child policy sents the best If the paternity testing. to undergo can ordered marriage 5-1029 under Section could mandatory genetic testing blood or paterni- seeks to establish every be time an individual invoked to during marriage, consequences child born the ty of a the regard Without to devastating. intact families could be interests, genetic courts would be forced to order child’s best paternity merely questioned. every tests of child whose if child is cared for and This be the case even the well would want or her life that or she does not to could assert he that, in the enacting “Paternity not believe disturbed. We do Article, in- legislature Law the Proceedings” an effect. tended such

Turner, therefore, for controlling precedent remains the (one this, two of the where men the husband cases such stranger marriage) acknowledge and the other a mother of a born We hold that during marriage. that the best interests judge trial was correct conclude testing order blood or governs genetic of the child whether to of Kendi. Discretion

B. Abuse of Having the “best interests of determined case, in this we turn to Evans’ alterna applies child” standard application tive that the trial erred her argument judge genetic that a blood or test standard. Evans contends preserving family Kendi’s jeopardize would not interests because, view, not and Harris did have unit Evans’ Wilson Furthermore, family. an Evans the trial suggests intact possible consequences too on the emphasis court much placed adequately test did not the results weigh establishing Evans’ himself as the father of interest are unavailing. These arguments Kendi. discretion, appellate

Absent a clear an court abuse ordinarily will disturb a trial court’s assessment Walter, 391-92, best interests of a child. at See Md. 612; 144-45, 1035; at at Giffin, A.2d at 351 Md. 716 A.2d Beckman, 909; Voishan, 337 Md. 655 A.2d at 327 Md. Turner, at 326. In we offered the following standard, guidance for the “best interests” which applying we “paramount stated should be trial court’s concern”: for determining criteria child’s best interests in cases of disputed paternity include consideration of the environment, stability of the child’s home current whether unit, there is an ongoing family physical, and the child’s mental, An important and emotional needs. consideration is relationship putative child’s with the father. Final- past ly might other factors even include the child’s ability genetic ascertain information of medical purpose history. treatment and genealogical 327 Md. at 607 A.2d at 940. In addition these criteria, we that the trial judge stated should “consider the extent of paramour’s] responsibilities commitment to the [the parenthood, and balance his interest in establishing his status as against natural father [the child’s] [married couple’s] in interest protecting integrity of familial relationships already Id. at formed.” 607 A.2d at 940. The trial judge present case this guidance. followed In decision, her rendering Judge emphasized Holland her primary concerns were Kendi’s best interests. Invoking Turner, recognized she unit preserving family was “crucial” to Kendi’s and that it outweighed interests Evans’ in establishing interest his status as Kendi’s father. Judge acknowledged Holland that Evans’ with relationship Wilson “suspicion” created some that he was the father. judge refused, however, to “destroy family unit based on suspi- cion,” was, given especially estimation, what the judge’s an insufficient connection between Evans and Kendi.

The trial analysis here judge’s proper demonstrates a exer- cise of supported soundly discretion by the evidence in Harris she child of because Kendi is presumed

record. Code, § 1-206 See during marriage was born Wilson. Evans Article. Although presented Estates Trusts one with approximately encounter Wilson evidence of sexual wrote ac- and that Wilson letters before Kendi’s birth year father, that does Evans to Kendi’s evidence knowledging law. a matter of overcome that necessarily presumption with ended that her affair Evans testified Significantly, Wilson conceived, and, despite least month before Kendi was one affair, finding amply supports this the record admitted Harris Kendi relationship familial Wilson’s accounts, Kendi, has bonded with by remains all intact. Harris, on to as her father and relies recognizes whom she financial, emotional, Additionally, needs. meet her and health affair, that, she and Harris since Wilson’s evidence shows meals, family, sharing paying have as a together lived week- together recreation on daycare, enjoying Kendi’s evidence, that, the trial say cannot based on this ends. We for a request Evans’ judge denying abused her discretion blood or test Kendi. genetic Due Process

C. that, refusing final Evans claims argument, hisAs Kendi, trial court violated his to order a test of main Evans right process. Specifically, constitutional due interest “constitutionally liberty has a protected tains that he with his develop relationship daughter” in the opportunity without deprived process. and that he of this interest due contention, H. v. As a for this Evans cites Michael basis (1989), D., 105 L.Ed.2d 491 U.S. 109 S.Ct. Gerald reading contradicts the Consti- generally a case that Evans’ H. do not depart tution. The factual circumstances Michael an manner from the case at bar. Michael had any in relevant married affair with while she was to Gerald. adulterous Carol Carol, 113,109 2337, at 100. while at at 105 L.Ed.2d Id. S.Ct. Gerald, Victoria, daughter, birth a gave still married father. Id. at might informed Michael he 2337, a Having developed at 109 at 105 L.Ed.2d 100. S.Ct.

639 with to be her relationship believing Victoria and himself father, natural Michael petitioned rights. visitation The based in on a California courts denied his statuto- request part 115-16, 109 2338, at at ry legitimacy. Id. presumption S.Ct. 105 L.Ed.2d at Supreme

Michael before the Court that Califor- argued nia a creating presumption legitimacy statute was unconsti- that, tutional and under the Process Due Clause of Consti- tution, a “constitutionally protected liberty he interest in had 121, 2341, relationship his with Id. at at Victoria.” 109 S.Ct. Court, 105 at 104-05. in a opinion, L.Ed.2d The divided statutory affirmed the state court’s decision that the presump- 2346, tion was Id. at 105 constitutional. at S.Ct. A L.Ed.2d at 111. of the Court that the plurality concluded Constitution recognize right did the natural father to with relationship his child who was born during marriage mother to man. plurality explained child’s another that the decision rested the absence of constitution- “upon any ally right protected legal part on the of an parentage situation, natural father in adulterous Michael’s as evidenced long tradition.” Id. at 129 n. n. S.Ct. at 2345 L.Ed.2d at 110 n. 7.

Justice dissenting Brennan authored a and noted opinion that, only four although justices believed that Michael had a “liberty relationship Victoria,” interest his Mem- “[f]ive bers of the Court to foreclose the ‘possibility that a refuse[d] might natural father a constitutionally protected ever have interest in his relationship with mother whose to, with, married another cohabitating man at the time of ” conception child’s birth.’ S.Ct. J., (Brennan, L.Ed.2d at dissenting). Arguing that exist, such a liberty interest does Justice Brennan observed Supreme Court’s these opinions sort cases: produced unifying theme: an although unwed father’s not, biological link to his guaran- child does and of itself tee him a constitutional relationship stake with that child, a link parent-child such combined with a substantial will do so. an relationship “When unwed father demon- responsibilities parent- a full to the strates commitment in the rearing forward to by 'comfing] participate hood child,’ with child ... interest in contact his personal his under the Due Process protection substantial acquires Clause.” 2352,

Id. at 105 L.Ed.2d at 118-19 at 109 S.Ct. Robertson, 248, 261, 2985, Lehr v. 103 S.Ct. (quoting 463 U.S. (1983)). 614, 77 L.Ed.2d Turner, In A.2d at we relied on the Md. H., which, according this decision in Michael to majority’s Court, constitutionally protected H. “held Michael had no also of Victoria.” We found right to establish his instructive, although we did opinion Justice Brennan’s be at 940. not it. Id. at 607 A.2d Justice Brennan’s adopt discussion, believed, a cause” why “good analy- we highlighted paterni- whether to order appropriate determining sis was Id.; of a born a see also ty testing during marriage. child A supra Opinion (discussing “good at Section III of this Turner). that, in We reasoned in analysis cause” advanced court an for a requiring permit request a individual’s blood only test child during marriage upon showing of a born cause, good “ought the court able to consider interests were separately recognized balance the different in Michael H.” majority and the dissent A.2d at 940. case, we with Evans’

Turning disagree to the instant him a argument upon protected H. confers Michael diverging expressed interest. views liberty Despite H., Supreme Court nor this Court has Michael neither any constitutionally liberty interest of an recognized protected relationship father in alleged biological developing was born while the mother was married another who Moreover, still case prevail man.7 Evans could this suggests interpretation 7. The dissent that our of the Estates & Trusts Rights Equal Article and Law Article runs afoul Amendment (ERA). Maryland Rights Specifically, to the Declaration the dissent argues requiring courts to consider "best interests” standard greater places situations case on the like the before us burden “male biological parent” biological parent.” than on the “female The dis- misplaced. sent’s the ERA reliance on misrepresents dissent the nature interests at issue. This classifications; gender case is not it is State's about about the interests family preserving unity and the best interests of the child. The State strong protecting integrity has a in the family interest of the marital H., 125, harmony. promoting family unit and in See Michael 491 U.S. at 107; 2343, Turner, 114-16, 109 S.Ct. at 105 L.Ed.2d at 327 atMd. 607 A.2d longstanding policy at 939-40. Related to this the State's is in M., protecting favor of the best interests of the child. In re See Mark 332, 687, 705-06, (2001); Boswell, 365 Md. 782 343 A.2d Boswell v. 218-19, 662, 204, (1998); Adoption 352 Md. 721 669 re A.2d In No. 10941, 99, 201, 113, (1994); Adop- 335 Md. 642 208 A.2d In re A91-71A, 538, 561, 1085, tion/Guardianship No. Md. 334 640 1096 (1994). supra, examining As we in A discussed Part the best interests of ordering genetic the testing child in a case such as this before allows for protection important the of these interests. Pimentel, 206, The dissent Md.App. cites Nevada ex. rel. 108 Toft (1996) position 671 support holding A.2d 99 for the that our in the present distinguishable grounds. case is violates ERA. on two Toft First, holding the dissent mischaracterizes the in The dissent states Toft. receive, that “the ruled court that a mother could blood tests to Toft presumption rebut the legitimacy.” Dissenting op. of at 13. The issue however, Toft, in was not whether the mother could receive blood tests genetic but whether the results testing already obtained —could be — used presumption legitimacy. as evidence to alleged rebut the The order, father in paternity testing pursuant had submitted to to an in Toft case, separately numbered had been year issued almost one before the filed mother the action that was before the court on Toft 211-12, appeal. Toft, Md.App. at Nothing A.2d at 101-02. in opinion explains judge separately how the in that numbered Toft mother, child, case alleged reached the conclusion that the and undergo paternity must testing, Special Appeals and Court of did judge not address whether the in requiring testing. had erred such See 2, Therefore, id. at 211 n. 671 A.2d wrong at 101 n. 2. the dissent is in asserting that the genetic court "ruled” that a mother could obtain Toft testing considering without the court first the best interests of the child. Second, distinguishable on facts. mother The Toft Toft remained to the conception, married husband at time of but their family that, hardly parties agreed unit was during intact. The conceived, period within which the child was the mother had been separated living apart and from her husband for four at least months. 210, 214, Id. at 671 A.2d at 103. separated, While she had a California, Nevada, sexual relationship with two other men and lived in Virginia and at various times while her husband lived in Texas. Id. The husband, mother never reunited they with her were divorced before the child born. Id. at 214 n. 671 A.2d at 103 n. Ordering testing certainly blood in these circumstances would not would, addition, damage any harmony marital be in the best interests the child. Brennan’s view that adopt even if we were Justice parent- with a substantial biological link to child combined relationship father a relationship guarantee natural Kendi not Evans and have Quite simply, with the child. Evans relationship. developed parent-child” a “substantial baby as child supplies support, has worth of provided $80 occasions, has not on seen only visited Kendi several old. conduct not was six weeks This does baby since she “a full com- demonstrate, require, Brennan would as Justice responsibilities parenthood ‘com[ing] mitment ” rearing his child.’ Michael forward to participate H., at 118- 109 S.Ct. L.Ed.2d U.S. (Brennan J., dissenting). protected liberty have a interest Evans does not Because Kendi, Due with Process Clause relationship developing any him guarantee protection does Constitution Court, there- relationship. to that Circuit respect it Evans’ fore, when denied did not violate the Constitution test. request paternity for FOR BALTI- THE CIRCUIT COURT OF

JUDGMENT BE PAID BY AP- AFFIRMED. COSTS TO MORE CITY PELLANT.

RAKER, J., dissenting: for a blood request I dissent. Brett Evans’s respectfully he is the father of Kendi biological test to whether determine the biological If test that he is should be reveals granted. father, of apply the court should the “best interests then above, Nevertheless, family intact unit main- as we made clear very from the broken relation- tained Wilson and Harris is different suggests Wilson’s rela- ship The record sexual described Toft. month Kendi was conceived tionship with Harris concluded one before and, then, together as have lived husband since Wilson and Harris father, birth, Furthermore, Harris has acted as her wife. since Kendi's financially emotionally. providing her bonding her and for distinctions, improperly cited as two clear is Based on these Toft testing paternity should be ordered support the dissent's view that biological of a claims he is the father child bom whenever a man marriage. an intact

643 he what, any, if should be legal rights child” test to determine Kendi. afforded as to a man holds that when claims to be majority man, while the another

of a child born mother married to Article, pursuant may grant to the Estates & Trusts the court upon good for a blood test request only showing cause. Maj. determining exists, In cause op. good whether the court consider must the best interests of the child. Id. First, view, disagree

I for several in my “good reasons. cause,” under Rule be based upon should determined an request assessment whether the is material to some Roberts, issue in the case. See v. Md. Roberts 198 82 (1951). A.2d 120 Consideration the “best interests of the place stage child” has no this and comes proceedings into after the has play only blood test been Sec- performed. ond, an action to determine paternity may brought under (1984, either Code Maryland RepLVol., 1999 2003 Cum.Supp.) §§ 5-1001 through Family 5-1048 of the Law Article or under (1974, Maryland Cum.Supp.) §§ Code 2001 2003 1- RepLVol., 206 and 1-208 the Estates Trusts Article. The Estates & & Trusts Article is not the exclusive determining means for merely but is an alternative pointed means. As out Whisted, 106, 121, by Judge Eldridge Turner v. 327 Md. (1992) J., A.2d (Eldridge, “the dissenting), provisions of the Article Family designed'to Law were better resolve disputes over the identity natural father.” This 5-1002(c) so particularly today, following § the addition of to the Law Article in since Turner was decided. Whisted, (1992),

Until Md. Turner person Maryland a could seek declaration of paternity under the Law Article or the Estates & Trusts Article. Malkus, (1990). See Taxiera v. 320 Md. arbitrarily Turner “when decided that two men each acknowl- edge of the ... paternity same child an action establish paternity brought is more appropriately under the Estates & Article,” Trusts on ground the the & Estates Trusts presents Article the “more satisfactory” and “less traumatic” at at 327 Md. 607 A.2d establishing paternity.1 means Turner, shown, the good a motion for cause upon 939. Under Rule pursuant has the to order a test court discretion blood 2-423, may that a order an examination which court provides the condition or characteristic of physical mental or “[w]hen custody or of a in the or under the control legal party person Id. at at 939. controversy.” is in 607 A.2d party of a Turner cause good held that “the determination of The court the best of the allows the discretion consider interests court added). Id. at In (emphasis 607 A.2d at 940 child.” Turner however, did not allow the reality, simply the court child, best but instead court to consider the interests the court the best interests of mandated that consider before test is ordered. 607 A.2d a blood requires that the be mate- simply request 940. “Good cause” The in this case is request rial to some issue in case. case, is, to the in the undeniably material issue paternity Kendi.2 dissented, McAuliffe, Judge Judge joined by Eldridge,

1. concurred and First, Judge Eldridge disagreed majority's grounds. on two with view that the Estates & Trusts Article was better statute merits, Second, resolving Eldridge Judges and issues. on the putative to blood McAuliffe held the view that father entitled have to that a tests and that he did not establish declaration interests tests be ordered. was in the child's best before blood should J., Whisted, (Eldridge, A.2d at Turner v. 327 Md. at concurring dissenting). pointed out that: and dissent biological parentage automatically fact does not entitle "[t]he pater- natural child. A determination of father to visitation his nity presumption would natural to the that the entitle the Yet, allowing be served child's interests will father visitation. presumption exceptional when some circum- this can rebutted custody the best [or stances render such detrimental visitation] interests of child." agree completely. Id. I with the dissent blithely party This is not where a asserts that he is a case third woman. Evans Wilson had a father of child born to married beginning regularly spent relationship, sexual March 2001. Evans home, baby nights in November at Wilson’s attended shower Wilson, parents from Kendi 2001. Evans received mail visited hospital day prepared at the that she was born. Wilson a birth on father, indicating that Evans was the and on Valentine’s announcement old, Day, when one Wilson Evans a card Kendi was month sent I cannot subscribe to a view that precludes discovery of .3 facts, the true and I undeniably agree ascertainable reliable with fully philosophy El repeatedly expressed by Judge Monroe, dridge, by articulated him in Monroe v. 329 Md. 758, 783, (1993), 621 A.2d that “under majority’s approach, sometimes most relevant facts will not be ascer tained in order to prevent what a court may regard as an unsatisfactory resolution of dispute.” To reiterate his analysis set forth in Turner:

“The has majority procedure formulated a whereby trial result, court must determine the ultimate in order to discov- er whether that result is before it satisfactory, can ascertain the facts. If the court decides that it likes predicted result, ultimate then the finding process fact If continues. the court decides that it predicted does not like the ultimate result, process ends. I cannot subscribe to the proposi- relevant, tion that ascertainable evidence should be excluded may because it lead to a result which the court does not like. The trial conjecture court’s over whether the result will be should not determine satisfactory whether facts relevant to that result are concealed. I simply agree cannot with the courts) majority’s view that a government its (through entitled to particular determine case that one will be identifying "Daddy.” him as bought Evans visited Kendi and her clothes, diapers toys. Nebraska, pointed by Supreme 3. As K.D., out Court of in B.H. v. (N.D.1993): 506 N.W.2d 368 “The universally accepted by distinguished result of the test is scienti- fact, authority. living fic and medical authority There is in no repute, legal, may adversely medical or who be cited ... There is now practically judicial ... willingness give universal and unanimous controlling evidentiary weight decisive and to a blood test exclusion paternity.” Schatkin, (quoting Id. at 382 Proceedings § S. Paternity 5.03 Disputed (1975)). falsity suppres- of a perpetuation

better off relevant, facts.” unprivileged sion A.2d at 944. 327 Md. at bring think it may “preferable” the Court Although Article, the Estates & Trusts action under the paternity to determine an alternate avenue Law Article remains Family stated, Sec- the statute. preferable and as I have paternity, 5-1002(c) Article, added to Law which was Family tion states as Assembly, the General by Act in 1997 Paternity follows: may in this subtitle

“Establishment of Paternity. Nothing — to file a of a father right putative to limit the be construed a child.” to establish his complaint Article, a putative Law Family § 5-1029 of Under paternity. to determine or test genetic entitled to a blood is determining role in no analysis plays interests” The “best Riffe, v. Langston be ordered. See whether the test should (2000). 396, 437, 411 754 A.2d 359 Md. Article, Law father” under the is a “putative

Evans wedlock,” notwith- a child “born out of Kendi is arguably, points Evans out “legitimate.”4 is the fact that she standing Second, First, statutory pre- legitimate. under the all children are though may compet- "legitimate,” there arise sumption, Kendi even i.e., "legitimacy” statutory presumption of versus ing presumptions, biological might proven to be the presumption that arise if Evans is father. cogent district made a Appeal of Florida for second The Court of Daniel, v. legitimacy paternity. See Daniel distinction between 1996). as (Fla.App. The court reasoned follows: So.2d 849 of a failure to has arisen in the law because "We believe confusion legitimacy. presumption of distinguish paternity and The between presumptions known in legitimacy strongest rebuttable is one of the (3d Dictionary Heritage College law ... The American father; ed.1993), being fatherhood 'the state of as defines particular man is the attempting that a ... to establish a woman biological 'Only person father of ... one can be father of her child ed.1993), (3d College Dictionary Heritage American a child. The law; ... ‘being compliance with the lawful legitimate defines Paternity legitimacy are relat- legally parents.' married Born to concepts.” separate and distinct concepts, ed but nonetheless Id. at 851-852. “putative” fathers have far greater rights today they than enjoyed Turner when was considered because addition 5-1002(c) §of the Family Maj. op. Law Article. at 629-30. Although agreeing putative with Evans that fathers have majority expanded rights, argument by dismisses Evans’s “the concluding expanded to which he rights refers do apply position.” individuals majority adopts the of the court set reasoning out Colandrea, (2004) Stubbs Md.App. A.2d 361 dismissing maj. op. Using Evans’ claim. See at 632-34. source, Dictionary Black’s Law as the definitive bolstered purpose stated Act and the Paternity legislative 5-1002(c), history §of the Stubbs court construed the term 5-1002(c) §in “putative father” to mean a who has person fathered a out Md.App. of wedlock. 154 841 A.2d at The court of 367. Stubbs then “a child born out interpreted only wedlock” to refer to a child born to an and unwed mother that denied a man who claims to the father a of child while the mother is married to another has 5- rights § man under 1002(c) to a suit. bring paternity 841 A.2d at 370.

Although the primary impetus § the for enactment of 5- 1002(c) of may the Law Article have to imple- been ment the federal mandate each to in requiring state have effect laws to increase the effectiveness of child support enforcement, is not the purpose that exclusive of the statute. The Bill of Bill Analysis Senate 636 sets out eleven changes effectuated in law the of by Many State bill.5 the are changes Bill Analysis changes of Bill Senate 636 sets out the to law State that are in the included bill as follows: "Making mandatory, voluntary, applicant it rather than for an a marriage give security to party; license the social number of each (cid:127) Expressly authorizing putative a to file father an action to establish child; paternity a of (cid:127) Eliminating alleged right jury paternity an father’s a to trial a action;

(cid:127) Establishing parentage legal finding an affidavit of a constitutes paternity, presumption; rather than a rebuttable (cid:127) Allowing legal finding paternity established set affidavit to be or, only days aside if it is rescinded within expiration after the it making child such as improve support, to obviously designed each security party number of mandatory to the social provide license, temporary sup- to court-ordered requiring a marriage circumstances, the changing pre- certain port orders in expressly affidavit. But findings by sumptions file an action to establish his father to authorizing putative the mandating putative child and blood tests to paternity of a the solely improving not limited to upon request is Paternity pro- enforcement. support effectiveness of child the welfare of the child. designed protect to ceedings are (D.C.App.1985). Since E.R.B. v. child, support is for the provide primary purpose receiving support moment although present Kendi husband, time the future there come a may from Wilson’s child, claiming that perhaps support when he will refuse to Moreover, many there other natural father. are he is party challenging proves 60-day period, it affidavit fact; fraud, duress, or a material mistake was executed because of (CSEA) (cid:127) Authorizing Support Enforcement Administration the Child genetic blood or tests to deter- require any individual to submit to paternity; mine genetic (cid:127) concerning Making of a or statements cost blood written medical and relating to the cost of the mother’s test and records expenses hospital admissible expenses and the child’s neonatal presence paternity action without the of the custodian evidence in a establishing record statement or consti- of the records (sub- expenses prima of the amount of incurred tutes facie evidence subpoena days ject right at least party’s custodian trial); before (cid:127) pass temporary Requiring court in a action to genetic laboratory report a blood test support if the or order probability of least and establishes a statistical 99% ability to putative pay; has the (cid:127) require reporting Amending reporting hire law to the State new required employment for the New information National additional Registry; Hire energy (cid:127) Providing immunity employers, public companies service institutions, comply unions that with providers, financial and labor CSEA; requests from the for information (cid:127) unit for collec- Requiring the CSEA to establish a State disbursement support payments specified cases effec- tion disbursement 1, 1998, requiring report the Executive Director tive October 1, Assembly 1997 on the on or before December to the General unit.” implementation of the State disbursement

649 may reasons that a child benefit from the knowledge of the identity biological father. “putative

The term father” is broader than the definition of court majority and the Stubbs and includes a person to be of child claiming marriage. the father born an extant The Supreme Maryland United States Court and have cases used the term father” to refer a man “putative who claims to be the father of a child born while the mother married to See, D., 110, man. e.g., another H. v. Michael Gerald 491 U.S. 2333, (1989); Sider, 109 v. S.Ct. 105 L.Ed.2d 91 Md. Sider 334 512, (1994); Monroe, 758, 639 A.2d 1076 Monroe v. 329 Md. (1993). 621 A.2d 898

Further, a our review case law from sister states reveals many states use the term in this “putative father” Cataldo, 822, manner. For example, Kelly v. 488 825 N.W.2d (Minn.App.1992), discusses a action under Minneso- Parentage ta’s Act. The appellate intermediate court referred to a asman father” who “putative seeking parental rights who was conceived and born while Cataldo, mother was Kelly another man. v. married 488 828; 196, N.W.2d also see Ban v. 168 Ariz. 812 Quigley, (1990); J.M., P.2d 1014 v. 347 R.N. Ark. 149 S.W.3d (2001); M., In re Jonathan 255 Conn. 764 A.2d 739 (2001); Duclos, v. Weidenbacher 234 Conn. 661 A.2d 988 (1995); Preston v. Cummings, 871 So.2d 1055 (Fla.App.2004); R.S., A.B., (Ind.1996); K.S. v. 669 N.E.2d 399 C.C. v. KH, (1990); Mass. N.E.2d 365 In re 469 Mich. (2004); Ivy N.W.2d 800 Harrington, So.2d (Miss.1994). The restrictive definition formulated by the ma- unwarranted, jority is unsupported, and result-oriented. The definition ascribed to “born out of wedlock” is also important. majority and the Stubbs simply court assume that “out of only wedlock” has one meaning child born to —a an unwed mother. Courts around the country have consid- ered of this meaning language and have interpreted phrase to mean either child born to an unmarried mother or a child born to a married woman but fathered other man

650 See, In re Legitimation husband. e.g., the mother’s

than of (1985). 46, Locklear, In 412, 334 S.E.2d 50-51 314 N.C. Locklear, considered the Supreme Carolina Court North concluded as follows: meaning phrase of ‘born out wed- phrase, research indicates that “Our of of the child lock,’ parents ‘of the status should refer Hisch, 232, Ind.App. v. Pursley other.’ 119 relation each (1949). 270, born to a married 235, 271 A child 85 N.E.2d husband, her woman, one other than is begotten by but Coliton, Id. v. 73 citing ‘born of wedlock’... State out (1945). 582, interpretation This same 546 N.D. 17 N.W.2d taken position also phrase consistent (1979) 1,§ 9A 626 Paternity, Act on U.L.A. the Uniform 1973), states, ‘A out of (act child born withdrawn which aby to a married woman man includes child born wedlock Finally, Illegitimacy the Uniform other than her husband.’ 1960) (1942) (act 1, 391 withdrawn 1922, § 9 U.L.A. Act referring ‘to the status of the term ‘wedlock’ interprets another.’ S. of the child relation one parents 1.01, Schatkin, § at 1-2 Paternity Proceedings Disputed I. Locklear, ed.1984). (rev. parents Stanley alleged mother, in relation to Stanley’s their herein Petitioner Thus, another, of wedlock. acquire did status one wedlock, although out his minor child was ‘born man, not natural fa- another mother was married to ” ther.’ the definition of “out of adopted other courts have Many to an unmarried woman and to mean child born wedlock” but a father other than having to married woman one born See, Palla, v. 94 e.g., County Lake the mother’s husband. (2001); 277 Lewis v. Cal.Rptr.2d 114 Cal.App.4th Schneider, (Colo.App.1994); Mawdsley, 148 Estey 890 P.2d (1966); Georgia 217 493 Wilkins v. 3 Conn.Cir.Ct. Resources, 230, 337 S.E.2d 20 255 Ga. Human Department of (1985); 119 Idaho 812 P.2d v. Studley-Preston, Johnson Hisch, (1991); Ind.App. 85 N.E.2d Pursley v. 735, 434 (1949); 173 Mich.App. v. Wagenmaker, Girard (1988); Lane, N.W.2d Martin v. 57 Misc.2d (N.Y.Fam.Ct.1968), N.Y.S.2d 135 nom. on rev’d sub other Coliton, grounds; (1945); State v. N.D. 17 N.W.2d 546 Munro, (1984). Baker v. Or.App. 692 P.2d Supreme Idaho meaning Court considered the of the phrase, definition, noted the common and adopted broader one. v. Studley-Preston, Johnson 119 Idaho 812 P.2d 1216 (1991). The court stated as follows: Idaho 7-1103

“[The defines ‘child born out of statute] wed- lock’ as ‘a is begotten child who and born outside of lawful matrimony.’ phrase this commonly While has been con- strued to mean a child born only mother, to an unmarried it is susceptible interpretation. jurisdictions to another Many phrase have interpreted the ‘child born out of wedlock’ to mean either a born to an child unmarried mother or a child born to a but by married woman fathered a man other than the mother’s agree husband.... We with the above authori- § ties and hold that which ‘child born defines out of wedlock’ as ‘a who is begotten born outside of lawful refers matrimony,’ to either child born to an unmarried woman or a child born to a married woman but who by conceived man other than the mother’s husband. interpretation This is with the consistent remain- ing sections contained the Idaho Paternity Act.” Id. at 1219.

The term “putative father” in Law Article includes a man who claims to be the father of biological a child where the mother is either unmarried or where the child was conceived a man other than the woman’s husband. This construction only not is mandated because it fair and makes sense, but also it is required because Equal Rights under Maryland Amendment of the Article Constitution. 46 of the Maryland Declaration of Rights, known the Equal Rights as (E.R.A.), Amendment was adopted Maryland in 1972 as provides follows:

“Equality under the rights law shall be abridged or denied because of sex.” Rand, 508, 515-16, 374 A.2d 904-905

In Rand v. Md. (1977), Rights Amend- Equal this Court established and that the people discrimination gender ment forbade based rights men and Maryland fully equal were committed Bainum, Club, Inc. v. Burning reiterated in Tree women. We (1985), 53, 64, that “the E.R.A. 305 Md. 501 A.2d classifications, legis- either under flatly prohibits gender-based enactments, by application or governmental policies, lative benefits, rules, burdens, rights common law the allocation men and women.” responsibilities between if Rights greater Amendment Equal It is violation to rebut biological parent on the male placed burden is par- than on the female legitimacy biological presumption (1980). J.W., 345, P.2d v. 200 Colo. ent. See R.McG. such gender-based classifications employ State statutes as: statutes, mother, allow which the husband

“[e]xclusive ability presumption, deny the but this to rebut marital First, scrutiny. all not withstand this putative to fathers do obvious, gen- such a immediately employ while not statutes classification____Exclusive employ statutes three der-based presumed fa- persons: biological parents, classifications of the biological parent thers and children. classifica- Within tion, on the basis of gender: exclusive statutes discriminate only may presumption.” rebut the women Dallas, Presumption: Marital A Devel- Rebutting Traci the Test, L.Rev. 379-80 Relationship 88 Columbia oped (1988). in the case reasoning the instant majority’s Applying the Law “Paternity Family of Proceedings” causes subtitle the Article within the classification of an exclusive statute to fall to bring the mother to a suit biological because it permits it does whereas not allow legitimacy, rebut the of presumption biological to claiming this to a man be the father. right same paternity a action under Currently, bring a woman can hus- Family presumption Article to her Law rebut Nev. ex band is the father of her child. See State of Toft Pimentel, 107-108 rel. Md.App. (1996). biological man to be father is claiming But a required to bring paternity action under the Estates & Article to presumption Trusts rebut the mother’s Turner, husband the father the child. 327 Md. at See 113, 607 A.2d at 938.

A man claiming biological to be father of a child is more than the if significantly burdened mother he wishes biological 5-1027(c) rebut the presumption Section legitimacy. Law effect Family permits Article the natural mother to seek declaration of in a man who paternity is not her husband, and undo the interest thereby preserving state’s Moreover, family stability. Toft,court ruled that a mother receive could blood tests rebut the presumption legitima- 5-1027(c) § contained in cy Law Article. 108 Md.App. at A.2d at 108. Toft, court did not condition the natural right mother’s to seek declaration of to receive blood tests on consideration of the Yet, child’s best interests. to be non-spouse claiming biological required father is suit under the bring Estates & Trusts Article to establish and to rebut the pre- sumption that the mother’s husband is the father. Tur- See ner, Moreover, 327 Md. at 607 A.2d at 938. under the Article, Estates & Trusts court will allow the man’s request for a blood test unless and until it finds that it is in best interests of the child to conduct the test. This leads the biological mother securing blood tests without any qualifications, whereas the man to be claiming the biological father cannot receive the same unless the court finds that isit in the best interests of the child to grant request for the really test. This result is no different than found by the J.W., in Supreme Colorado Court R.McG. v. 200 Colo. (1980): P.2d 19-6-107(1)

“that Section Colorado’s Uniform [of Parentage exemplifies gender-based Act] predicated classification on an overbroad generalization that a mother has a legitimate interest establishing determination father, non-spousal while such has no interest a determination of establishing himself.” lead to some may decision today’s The ramifications future, in the that sometime Assume results. unfortunate not the father husband, that he is Harris, asserts Wilson’s Harris Kendi nor Neither her. support refuses Kendi and be permitted Would Wilson action.6 to this parties were so, Evans why should Evans? If against an action bring Also, if Kendi should today? action bring the permitted genetic to ascertain or needs transplant marrow need a bone future, have she will in the treatment for medical information information genetic the critical the benefit of denied been this time. What make available seeking to Evans is alive? longer Evans is no arise if these scenarios happens blood tests that the court order require Policy logic Evans. requested by A.2d 703 GLADIS

Slavomir Eva GLADISOVA. Term, 127, Sept. 2003.

No. Maryland. Appeals Court Aug. 2004. issue, should that the action I believe Although has raised no one necessary Harris as join Kendi and failure to have been dismissed parties.

Case Details

Case Name: Evans v. Wilson

Court Name: Court of Appeals of Maryland

Date Published: Aug 24, 2004

Citation: 856 A.2d 679

Docket Number: 123, Sept.Term, 2003

Court Abbreviation: Md.