Lead Opinion
At issue in the instant appeal is the propriety of two rulings made by the Circuit Court for Garret County, the result of which was the entry of judgment in favor of Darren Gerald Kamp, the petitioner, and against the Garrett County Department of Social Services, Bureau of Support Enforcement, the respondent, appearing ex rel. Vicki Jo Duckworth (Ms. Duck-worth).
I.
The petitioner and Ms. Duckworth were married on September 13, 1983. The couple had three children whose paternity is neither questioned nor the subject of the proceedings sub judice. The child whose paternity is at issue in these proceedings, Julie Kamp, was conceived in the early half of 1992, when Ms. Duckworth became pregnant with a fourth child. This is significant because the petitioner had had a vasectomy performed in approximately June, 1987. Also, when. Julie was conceived, the petitioner was employed out of state in Ravenswood, West Virginia. As a result, although the couple engaged in sexual relations when the petitioner was home, the petitioner was home only on an inconsistent basis.
For her part, Ms. Duckworth had the following exchange with the petitioner’s counsel:
“[MR. HANNA]: Following the conception of Julie, did you have any questions in your mind as to who the father was?
“[MS. DUCKWORTH]: No.
“[MR. HANNA]: Okay. Who was the father as far as you know?
“[MS. DUCKWORTH]: James Stanton.
“[MR. HANNA]: At the time you were having sexual relations though, were you not with Darren?
“[MS. DUCKWORTH]: No, not during the time I conceived. No. Darren and I were having marital problems and he was staying with a friend of his in West Virginia and had had sexual relations with another woman. That’s what spawned all of this.
“[MR. HANNA]: Did the two of you have any discussions concerning paternity of Julie?
“[MS. DUCKWORTH]: Yes.
“[MR. HANNA]: And what was the nature of those discussions? The very next day after I had sexual relations with Jamie, I had called Darren and I had told him what had happened. And, we both know it’s very easy for me to get pregnant. It always was. And he told me to wait a week or two and go get a pregnancy test done and we’ll decide what to do from there. I waited a week or two, went and got a pregnancy test done, which, of course, came back positive.”
Later, the petitioner testified at the hearing on the Motion to Modify Child Support and the Motion to Set Aside Paternity. He admitted, in an exchange with Donald Davis, counsel for the State, that he knew that he could not possibly be Julie’s father:
“[MR. DAVIS]: Okay. And isn’t it true that the time leading up to when she became pregnant, you were during one of those periods where you were out of town for a while. And that’s why you would ask her to get the pregnancy test right away because you knew at that point you weren’t the one who could have impregnatedher at that point. Isn’t that why you asked for the test?
“[MR. KAMP]: Yes.”
According to Ms. Duckworth, both she and the petitioner discussed their options, including the possibility of abortion and adoption. Ms. Duckworth testified that family members, including her parents and her sisters, were involved in the discussion. While the petitioner was not certain, he conceded, as the colloquy with the Master reflects, that he was aware that James Stanton, with whom Ms. Duckworth admitted having an affair, could have been Julie’s father.
“[THE MASTER]: So you—were told Mr. Stanton was the father?
“[MR. KAMP]: Well, we assumed because nobody did any other surgery, I guess. I didn’t do anything as far as I checked to see if I was a hundred percent.1 -3 -1
“[THE MASTER]: All right. But, what Ms. Duckworth talked about, you and her talked about the possibility of Mr. Stanton was the father?
“[MR. KAMP]: Yes.”
Ms. Duckworth, on the other hand, testified that she had no doubt of Julie’s paternity, that Mr. Stanton was Julie’s father. Before Julie was born on December 10, 1992, however, the couple decided to raise Julie as the petitioner’s child.
The couple separated in 1998 and were finally divorced in April of 1999. The Judgment of Divorce incorporated, but did not merge,
Julie lived primarily with Ms. Duckworth after the divorce, although she went to live with the petitioner, who had remarried, in June of 2001. After residing with the petitioner and his new wife at their home for approximately one year, Julie resumed living with Ms. Duckworth. During the summer of 2001, when she was eight years old, Julie learned that Mr. Stanton, and not the petitioner, was her biological father. It appears that Mr. Stanton’s daughter informed Julie one day that they were sisters, a fact that was later verified by Ms. Duckworth. Ms. Duckworth maintains that she provided confirmation only after speaking with the petitioner and obtaining his consent to tell Julie. The petitioner denies that he gave permission to Ms. Duckworth to tell Julie that he was not her biological father.
On January 11, 2002, Ms. Duckworth filed a petition in the Circuit Court for Garrett County asking the court to establish fixed visitation and child support. In her petition, Ms. Duck-worth alleged that the petitioner “refused to develop a fixed schedule for visitation with the minor children” and that the petitioner’s new wife had “acted in a manner to interfere in matters involving the children and has on several occasions refused to return one or more of the children with the acquiescence of the [petitioner].” Further Ms. Duckworth pleaded:
“The prior Judgment of this Court and the Agreement of the parties requires [petitioner] to pay child support; however, [petitioner] has failed, refused and/or neglected to pay child support in a consistent and reasonable manner, but rather makes unilateral reductions in the amount to be paid based upon what he perceives to be required by the Judgment and Agreement. [Ms. Duckworth] believes that the Court should establish child support in accordance with the Maryland Guidelines and require [petitioner] to pay the same pursuant to an Earnings Withholding Order.”
In her amended petition, Ms. Duckworth requested that the court:
“a. Pass an Order establishing a fixed visitation schedule;
“b. Determine the arrearage in child support payments to be made by [petitioner];
“c. Enter a judgment in favor of [Ms. Duckworth] in the amount of any child support arrearage of [petitioner];
“d. Pass an Order establishing child support; .
“e. Pass an Order for Earnings Withholdings Order; and
“f. Grant such other relief as the nature of her cause might require.”
The petitioner answered the petition on February 27, 2002 and, in addition, filed a counter-petition to establish custody, visitation, and child support. In his answer, the petitioner requested custody of the
“Four children were born as issue of their now dissolved marriage, of which two have reached the age of majority. There are two remaining minor children, to wit: CASEY, born, February 12, 1998, now age fourteen (14); and JULIE, born December 10, 1992, now age ten (10).”
The parties agreed that Ms. Duckworth would have sole legal custody of the two children and joint physical custody would be shared between the two parties. The petitioner agreed to pay Ms. Duckworth child support in the amount of $100.00 per month. Consistent with the MOU, the court ordered the petitioner to pay child support for Casey and Julie, the- two children born “as issue of their now dissolved marriage,” who remained minors.
On July 28, 2005, the respondent filed, on behalf of Ms. Duckworth, a motion to modify child support. In that motion, the respondent proffered that “the Plaintiff/ Counter-Defendant, DARREN GERARD KAMP, has income with which he can pay an increased amount of child support.” The minor children for whose benefit the increase in support is sought are identified in the motion as Casey Kamp and Julie Kamp. Answering the motion, the petitioner made an assertion and a request:
“[T]he minor child, Julie Kamp, is not his biological daughter. Moreover, he has not adopted the said Julie Kamp, and requests this Honorable Court to order blood test for DNA testing for the purpose of establishing paternity of Julie Kamp. The issue of paternity was recently raised by the said Vicki Jo (Kamp) Duckworth when she began to indicate to Julie Kamp and to others that Darren G. Kamp was not, in fact, the biological father of Julie Kamp.”
After a hearing, the presiding Master recommended that the petitioner’s request for DNA testing be denied. The petitioner’s exceptions to the Master’s recommendations were sustained by the Circuit Court, which, after a hearing, ordered that the testing be done.
When DNA testing ordered by the court determined that the petitioner was not Julie’s biological father, the petitioner filed a motion to terminate or stay payment of the child support attributable to her. The hearing master recommended that the petitioner’s motion be disposed of as follows:
“The mother’s request for an increase in child support is denied.
“The father’s request to terminate support is granted.
“The father’s child support obligation is terminated and any and all arrearage are deemed uncollectible.”
The master reasoned, notwithstanding that the petitioner had always known, as the master found, that he was not Julie’s biological father, yet had treated her as his daughter, the genetic test results rebutted the presumption that Mr. Kamp was Julie’s father.
The respondent’s exceptions to these recommendations were overruled by the Circuit Court. Accordingly, the Circuit Court adopted the Master’s recommendations; it denied the motion to modify child support, granted the petitioner’s motion to terminate both his child support and his
II.
We first must consider whether, where the petitioner had not previously challenged the paternity of the child at issue, either during the marriage or during the divorce and post divorce proceedings, the Court of Special Appeals correctly determined that the trial court erred when it granted the petitioner’s request for DNA paternity testing. As we have seen, the child was born during the petitioner’s marriage to her mother and, therefore, her paternity could have been, but was not, raised either during the marriage or during subsequent divorce proceedings. We hold that the intermediate appellate court ruled correctly.
Determining the propriety of the decision by the intermediate appellate court begins with the Maryland statutes addressing and, therefore, governing, paternity. They are found in the Estates and Trusts Article and in the Family Law Article and represent two viable methods or proceedings for establishing paternity. Taxiera v. Malkus,
Maryland Code (1974, 2001Repl.Vol.) § l-206(a) of the Estates and Trusts Article teaches, concerning the legitimacy of a child, that “a child born at any time after his parents have participated in a marriage ceremony with each other, even if the marriage is invalid, is presumed to be the legitimate child of both parents.”
This is in contrast to a child born to parents who have not participated in a marriage ceremony. Such a child, Estates and Trusts § 1-208 advises, is “considered to be the child of the mother,” in section (a), and is considered, in section (b) to be the child of the father, only when the father:
“(1) Has been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings;
“(2) Has acknowledged himself, in writing, to be the father; “(3) Has openly and notoriously recognized the child to be his child; or
“(4) Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.”
When the child is “born out of wedlock,”
“(b) In general.—On the motion of the Administration, a party to the proceeding, or on its own motion, the court shall order the mother, child, and alleged father to submit to blood or genetic tests to determine whether the alleged father can be excluded as being the father of the child.”
This Court has construed this section to mean that a trial judge has no discretion to deny a blood or genetic test request.
“the provisions of section 5-1029 are mandatory once a party to any paternity proceeding moves for a blood or genetic test. This includes a post-declaration proceeding, subsequent to the initial declaration of paternity, conducted under section 5-1038(a)(2)(i)2, challenging the declaration because the putative father is not, or may not be, the biological father. Given the mandatory statutory language of section 5-1029, and the history of that section, the ‘best interests’ analysis generally may not be conducted in determining whether to grant a motion for testing.”
Langston,
In proceedings brought under the Family Law Article, as we have seen, see infra at § 5-1029, it has been held that the request for blood or genetic testing requires that the blood or genetic testing be ordered, and that there is no discretion to deny the request. On the other hand, no such mechanistic response has been required when the request is made during proceedings, brought under the Estates
“As advanced by this Court in Thomas and Dawson, the Estates & Trusts Article presents the ‘more satisfactory’ and ‘less traumatic’ means of establishing paternity. Thomas [v. Solis], 263 Md. [536], 544, 283 A.2d [777], 781 [ (1971) ]; Dawson [v. Eversberg], 257 Md. [308], 314, 262 A.2d [729], 732 [ (1970) ]. In Turner’s attempt to establish paternity under the Estates & Trusts Article, he had to rebut the presumption that Jeffrey was the legitimate child of Kelly and Danny Whisted.... A motion for blood tests made under the Estates & Trusts Article is best analyzed as a request for a physical examination under Maryland Rule 2-423,[13 ] and the court has discretion to grant or deny the blood tests.”
Id. at 113,
“We believe that a trial court ought to be able to consider and balance the different interests that were separately recognized by the majority and the dissent in Michael H. A discovery request for blood tests allows the court to weigh these competing interests. Most significantly, the determination of good cause allows the court discretion to consider the best interests of the child. Matter of Marriage of Ross,245 Kan. 591 ,783 P.2d 331 , 338 (1989) (Trior to ordering a blood test to determine whether the presumed parent is the biological parent, the district court must consider the best interests of the child----’); McDaniels v. Carlson, 108 Wash.2d 299,738 P.2d 254 , 261 (1987) (where child is presumed legitimate, best interests of the child should be considered before ordering blood tests).”
Turner,
Among the competing interests, toward the balancing of which the exercise of discretion was to be directed, we identified was “the court’s paramount concern of protecting [the child’s] best interests,” id. at 117,
“consideration of the stability of the child’s current home environment, whether there is an ongoing family unit, and the child’s physical, mental, and emotional needs. An important consideration is the child’s past relationship with the putative father.... Finally,other factors might even include the child’s ability to ascertain genetic information for the purpose of medical treatment and genealogical history.”
Id. at 116-17,
Using the identical analysis, in Evans v. Wilson,
“Moreover, considering the ‘best interests” standard represents the best policy for evaluating when a child born during a marriage can be ordered to undergo paternity testing. If the mandatory blood or genetic testing under Section 5-1029 could be invoked every time an individual seeks to establish paternity of a child born during a marriage, the consequences to intact families could be devastating. Without regard to the child’s best interests, courts would be forced to order genetic tests of every child whose paternity is merely questioned. This would be the case even if the child is well cared for and could assert that he or she does not want his or her life to be disturbed. We do not believe that, in enacting the ‘Paternity Proceedings’ of the Family Law Article, the legislature intended such an effect.”
Id. at 636,
That was not the end of our inquiry in Evans, however. The trial judge in that case recognized her obligation to assess the putative father’s request for testing from the perspective of the child’s best interest, and, finding his showing in that regard to be deficient, denied it. Thus, we were required to review that determination for abuse of discretion. Id. at 637,
“emphasized that her primary concerns were [the child’s] best interests. Invoking Turner, she recognized that preserving the family unit was ‘crucial’ to [the child’s] interests and that it outweighed Evans’ interest in establishing his status as [the child’s] father. Judge Holland acknowledged that Evans’ relationshipwith [the mother] created some ‘suspicion’ that he was the father. The judge refused, however, to ‘destroy a family unit based on suspicion,’ especially given what was, in the judge’s estimation, an insufficient connection between Evans and [the child].”
Evans,
Although it was the mother who sought to disestablish paternity in that case, the discussion of “best interest” and “good cause” in Monroe v. Monroe,
Aware of the reason that the mother was requesting the blood test,
“To justify ordering blood tests, at the behest of the mother, under circumstances in which the only effect of results favorable to the mother would be to show that a man who has acted as the child’s father, who the child regards as her father, who has acknowledged the child, and who is married to the child’s mother is, in fact, not the child’s father requires a showing by the mother that to do so is in the best interest of the child. In the Matter of the Marriage of Ross,245 Kan. 591 ,783 P.2d 331 , 338 (1989)(‘Prior to ordering a blood test to determine whether the presumed parent is the biological parent, the district court must consider the best interests of the child, including physical, mental, and emotional needs.’); In the Matter of the Marriage of Zodrow,240 Kan. 65 ,727 P.2d 435 , 440 (1986) (same); Ban v. Quigley,168 Ariz. 196 ,812 P.2d 1014 , 1017 (App.1990)(Strong public policy of preserving the family unit requires consideration of best interest of the child before or during blood tests at the behest of putative father when neithermother nor presumptive father questions the latter’s paternity.). See also Sandy M. v. Timothy J., 138 Misc.2d 338 ,524 N.Y.S.2d 639 , 642-43 (Fam.Ct.1988); Boyles v. Boyles,95 A.D.2d 95 ,466 N.Y.S.2d 762 , 765 (3 Dept.1983). This is especially so when, as here, one means of legitimation was the parties’ marriage, after which they held the child out as being their legitimate issue. Boyles,466 N.Y.S.2d at 765 .”
Id. at 771,
Finally, the fact that there was no identity of relationship between the parties with Turner and Evans was not a basis for conducting a different weighing analysis. Indeed, we opined that the same factors identified in Turner applied with equal force to the analysis to be conducted in that case. Monroe,
This case is, to be sure, different from both Turner and Evans. In both those cases, two men were vying for paternity; the question presented in each was designed to determine which, of two men, was the father. In present case, the man who is the presumed father of the child, who also has acknowledged the child as his own not simply during the marriage, but for over six years after the parties divorced, is the one seeking to rebut the presumption that he is the father and, thereby, to renounce, to rescind, his acknowledgment of paternity. On these facts, the case for conditioning the ordering of a blood test on a finding of good cause, tied to and determined by the best interest of the child, is, at least as, if not more, compelling than it was in Turner and Evans. That is the position this Court took in Monroe, a case with which the case sub judice shares similarities. It certainly appears to be the position taken by the Court of Special Appeals in this case. See Kamp,
Courts from other jurisdictions that have considered the issue agree. Baker v. Baker,
The petitioner and Ms. Duckworth were married at the Allegany County Courthouse in 1983. Julie was born on December 10, 1992. Because the couple was not divorced until April 9, 1999, there can be no question that, pursuant to Estates and Trusts § l-206(a), Julie is presumed to be the child of both the petitioner and Ms. Duckworth.
In his answer to the respondent’s motion to modify child support, despite his prior acknowledgment of parentage, after Julie’s birth, during the marriage, during the divorce proceedings and during a prior post divorce hearings on custody visitation and support, the petitioner denied that he was the Julie’s father and requested a DNA paternity test to confirm that denial, and, thereby rebut the presumption that he was Julie’s father. When the master recommended denial of the petitioner’s request for DNA testing, the petitioner filed exceptions. In those exceptions, the petitioner stated:
“5. That in its evaluation of whether or not to grant the requested blood or genetic testing, the Master disregarded the existing Maryland Law. The cases indicated that in making the determination which was at issue in this case, the Court should consider the interests of the family unit, the interests of the parties seeking the request, and the best interests of the child. The Master did not comment on these factors in making his decision. Therefore, it is the opinion of the excepting party that the Master did not base his Recommendations on Maryland Law.
“6. Moreover, no reason was advanced by the said Vicki Duckworth, or the State, as to why continuing to charge Darren Kamp with child support would be in the best interests of any family unit, Darren Kamp, or the minor child.
“7. That no reason was advanced to show why collecting child support from Darren Kamp, rather than from the true father of the child, would be in the child’s best interests. This is especially true in light of the fact that subsequent to the divorce of the parties, the mother of the minor child unilaterally took it upon herself to declare to the child that Darren Kamp was not her father.”
In the present case, the trial judge did not issue an opinion explaining his reasons for issuing the order requiring the petitioner, Ms. Duckworth and Julie to undergo genetic testing. The trial judge simply granted the petitioner’s exceptions. In a later opinion, terminating the petitioner’s
“In its decision to order the DNA testing, the court considered the various factors involved. The parties were separated and the truth about Julie’s parentage was out. There was no family unit to protect. In this instance, there was no reason not to obtain indisputable medical evidence to confirm the truth about Mr. Kamp’s relation to Julie.”
Kamp,
“It is also clear that he considered the interests of Julie in making his decision. The truth about her parentage was already well known. There was no testimony to indicate that Ms. Duckworth could not get child support from Mr. Stanton. The Master clearly took these things into consideration while properly applying Maryland law when making his recommendations.”
Id. at 189,
The Court of Special Appeals did not agree that ordering the DNA test served Julie’s best interests. It reversed:
“[T]he case sub judice does not contain any evidence to show that a paternity test was in Julie’s best interest. Julie was approximately thirteen years of age by the time the genetic test was ordered. DSS offered evidence that Julie might suffer emotional harm if such a test were ordered at that point. Julie’s therapist, Ms. Barnard, testified that Julie did not want a paternal relationship with Stanton. Moreover, Ms. Duckworth claimed that ‘[i]t would be detrimental’ to Julie for [the petitioner] to undergo a genetic testing to prove he is not Julie’s biological father, because Ms. Duckworth has attempted to make ‘very clear’ to Julie that paternity is not ‘a blood issue’ and [the petitioner] ‘is now making it a blood issue.’ ”
Id. at 200,
We agree with the Court of Special Appeals. To be sure, the trial court considered some factors relevant to a consideration of best interest, namely, that the parties were separated and that Julie knew that the petitioner was not her biological father, “the truth about Julie’s parentage was out,” from which it concluded that “there was no family unit to protect.” It is clear, however, that the court either did not consider, or gave short shrift to, other important factors bearing on Julie’s best interests. The father-daughter relationship existing between Julie and the petitioner was neither a recently developed one nor one lacking in complexity. It has existed, at minimum, some 13 years, and without any legal challenge or hint of challenge, from Julie’s birth in 1992 to 2005, when the petitioner, in court pleadings, withdrew his long-standing acknowledgment. For eight of the years that the relationship existed, Julie had no knowledge of any controversy concerning her parentage. That was true despite the circumstances surrounding her conception, which rendered the petitioner’s parentage ambiguous, to say the least. Whether, or not, the petitioner knew he was not Julie’s father, he agreed to, and, in fact, did, raise her as his child. Indeed, the father-daughter relationship was developed and maintained throughout the parties’ marriage and it continued even after the parties separated and were divorced. As we have seen, the petitioner entered into a Voluntary Separation Agreement with Julie’s mother, in which he represented that Julie was one of the four children born of the marriage. That separation agreement was incorporated, although not merged, in the Judgment of Divorce, and, thereby the
It is undisputed that Julie was told that the petitioner may not be her father, that the person who probably was her father was identified, that the initial source of the information was a girl who believed Julie to be her sister and that the petitioner’s non-paternity was confirmed by Ms. Duckworth. What is disputed is whether the confirmation was authorized by the petitioner. In any event, subsequent to that disclosure, the petitioner continued to acknowledge Julie and, in fact, in a counter-petition to Ms. Duckworth’s petition to establish custody, visitation and child support, the petitioner sought custody of Julie. By subsequently entering into a Memorandum of Understanding, the petitioner settled for joint physical custody. He agreed to pay, as ordered by the court order, child support for Julie. It was more than two years later that the petitioner raised the paternity issue as a defense. That was approximately four years after Julie was told that he was not her father.
Looking at what the trial court said in justification of the DNA testing order, it is, we believe, fair to assume that it believed the critical inquiry into best interest could be distilled to whether Julie was aware of her parentage
In any event, what the Supreme Court of South Dakota said when addressing a similar issue has particular relevance to this case:
“Belated efforts to declare a child illegitimate, for whatever reasons, should seldom prevail. [The presumptive father] has failed to show sufficient cause for paternity testing at this late juncture. The welfare of the child must be considered over the father’s long delayed challenge to the child’s parentage. [The presumptive father] has treated both children as his own since birth. He claims that his request is not made to recover past child support, but merely to find out if he is the father and whether [the children’s mother] perpetuated a fraud upon him. These are not compelling enough reasons to disrupt the life of a child born during their marriage.” (footnotes and citations omitted).
Ctdhane v. Michels,
In this case, the petitioner has treated Julie as his own since her birth. Moreover, his only claim is that “no reason was advanced to show why collecting child support from [the petitioner], rather than the true father of the child, would be in the child’s best interest [, especially since,] subsequent to the divorce of the parties, the mother of the minor child unilaterally took it upon herself to declare to the child that [the petitioner] was not her father.”
The reasons offered by the trial court being insufficient cause, in the interests of the child, to order DNA testing, the trial court abused its discretion in that regard. Moreover, like the Court of Special Appeals, Kamp,
III.
The respondent argues alternatively, and in any event, that the petitioner is barred from denying his obligation to pay child support. Its premise, accepted by the Court of Special Appeals, is that, despite relieving the petitioner of his support obligation, the trial' court did not disturb the petitioner’s parental rights,
This Court most recently defined judicial estoppel in Dashiell v. Meeks,
Equitable estoppel, a doctrine related to judicial estoppel, also would bar the petitioner from terminating his child support obligation, the respondent posits. Equitable estoppel was defined by this Court in Knill v. Knill,
“Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse and who on his part acquires some corresponding right, either of property, of contract, or of remedy.
3 J. Pomeroy, Equity Jurisprudence, § 804 (5th ed.1941), quoted in Leonard v. Sav-A-Stop Services,289 Md. 204 , 211,424 A.2d 336 , 339 (1981).
“Thus, equitable estoppel requires that the party claiming the benefit of the estoppel must have been misled to his injury and changed his position for the worse, having believed and relied on the representations of the party sought to be estopped.” (citations omitted).
Id. at 584,
The Knill court defined “equitable estoppel as being comprised of three basic elements: “ Voluntary conduct’ or representation, reliance, and detriment,” id. at 535,
Although we were satisfied that two of the required elements, representation and reliance, were present in the case, Knill v. Knill,
“The evidence in this case, however, fails to demonstrate any financial detriment incurred by Stephen [18 ] as a result of [Mr. Knill’s] course of conduct during their twelve-year relationship. Indeed, if any detriment was incurred by Stephen, it was emotional and attributable to his mother. It was she who ripped the “cloak of legitimacy” off the boy following a family dispute, when she revealed to him that [Mr. Knill] was not his father, a fact she had not concealed from the rest of the family. [Mr. Knill’s] attempt to console Stephen demonstrates his concern for Stephen’s emotional well-being.”
Id. at 537,
The Court of Special Appeals held in present case that the error committed in ordering DNA testing tainted the trial court’s ruling terminating the petitioner’s child support obligation based on those test results. Nevertheless, it went further, opining that the same conclusion would obtain “even if the circuit court had properly ordered the genetic test.”
Applying the test of judicial estoppel, we conclude that the application of the doctrine in this case is persuasive. As to the first prong, the petitioner acknowledged his paternity of Julie in the Circuit Court on two separate occasions: (1) in the Separation Agreement which he executed with Ms. Duckworth in December of 1998 and presented to the court for incorporation, he represented that Julie was born of the marriage and, thus, that he was her father and (2) in 2002 in his answer to Ms. Duckworth’s petition to establish fixed visitation and child support, he counter-petitioned for custody and, subsequently, in a Memorandum
As to the third prong of the judicial estoppel test, the petitioner knew, or should have known, both at the time of the divorce and custody proceedings and when Ms. Duckworth filed her petition to establish fixed visitation in 2002, that it was highly unlikely that he was Julie’s father; he knew that he had had a vasectomy in 1987 and that Ms. Duckworth was involved in an affair during the time that Julie was conceived in 1992. Despite this knowledge, the petitioner, as we have seen, represented to the court that Julie was born of the marriage, she was his biological child. As a result of these representations the petitioner was awarded, successively and respectively, joint legal and shared physical custody. By claiming Julie as a dependant on his income taxes, moreover, the petitioner was also enabled to receive a tax deduction in 2003.
Nevertheless, we do not decide these issues. Indeed, we suggest that, where there is a belated request for DNA testing to challenge paternity, the success of which requires rebuttal of the presumption of paternity, a decision on these issues in advance of the decision whether to order testing is inappropriate. We have held, consistent with our prior cases, see Turner and Evans, both supra, that DNA testing to rebut the presumption of paternity requires a threshold showing of good cause that it is in the affected child’s best interests to conduct such tests. The facts and considerations informing that preliminary determination are many of the same facts and considerations that inform the judicial estoppel and laches defenses. For example, how long the presumptive father maintained the father-daughter relationship and the manner in which he accepted and acknowledged it militates against rebuttal of the presumption and in favor of estoppel and laches. If the showing of good cause fails, then paternity remains extant, with its concomitant responsibilities; there would be no occasion to address the defenses. Similarly, if good cause is found and the test result favors the challenging presumptive father, it would seem to follow that the presumption will have been rebutted and paternity vacated. Because they will have been considered in the preliminary proceedings, it is difficult to conceive of how they then could be used to, in effect, overrule that result.
JUDGMENT AFFIRMED, WITH COSTS.
HARRELL, MURPHY, and WILNER, JJ., Concur.
Notes
. Although it arose in the context of an action to increase child support, the focus of this appeal is on the issue of paternity. More particularly, the question to be resolved is, when the child that is the subject of the inquiry is born during the marriage, but the issue of paternity was raised for the first time years after the parties divorced and at no time during the marriage or its immediate aftermath, under what circumstances is testing to determine paternity appropriate. The child's paternity necessarily was one of the issues the divorce court had to consider and it necessarily was also the subject of agreement between the petitioner and Ms. Duckworth during divorce and subsequent related proceedings. Nevertheless, it was the Bureau of Support Enforcement (“BOSE”) that initiated the proceedings that resulted in the issue which prompted this appeal.
The BOSE is a unit in the Department of Human Resources, Md. Code Ann., Human Serv. § 2—301(1 )(2007). The Court of Special Appeals noted that, in proceedings below, counsel for the respondent told the trial court " ‘[IJt’s a non-public assistance case' ” and " ‘There’s no state funds being paid out in this casej.]' ” Dep't of Human Resources v. Kamp,
"(b) Initiation of legal proceeding—In any support action in which the Administration is providing child support services under federal law, the Administration may initiate a legal proceeding to establish, modify, or enforce a duty of support.”
. The parties agreed, as Ms. Duckworth testified, that the petitioner worked during the week and came home on the weekends or worked for two-weeks, and was off for a week, and that the petitioner spent his time off at home.
. The petitioner testified that he was not positive that the vasectomy that he had in 1987 was effective and that he was sterile or unable to impregnate someone at the time that Julie was conceived. According to his testimony, the petitioner subsequently had his sperm count tested in 2002 or 2003 and the test revealed that he was sterile.
. In a colloquy with his counsel, the petitioner confirmed this decision:
'[[MR. HANNA]]: When did the issue of paternity-—what did the two of you decide to do with regard to Julie’s fatherhood, if you will?
" '[[MR. KAMP]]: We decided to raise her with the other kids.
“ '[[MR. HANNA]]: And did you make any pact or agreement with regard to telling anyone else in the world as to whether or not there was a possibility that you may not be the father?
“ ‘[[MR. KAMP]]: Did we ever make the agreement?
" ‘[[MR. HANNA]]: Right. What was your agreement?
" ‘[[MR. KAMP]]: Well, we never really made an agreement. We just assumed.
" ‘[[MR. HANNA]]: Assumed what?
" ‘[[MR. KAMP]]: That I wasn't the father.’ ”
Kamp,180 Md.App. at 180-81 ,949 A.2d at 52 .
. The Separation Agreement of the parties read as follows:
“This Agreement was made in express consideration of the means of the respective parties and their station in life and shall be submitted to the Court in the event of a divorce proceeding either on an original Cross-Bill of Complaint to the end that the terms and provisions hereof may be incorporated in any Decree passed by the Court.”
In Johnston v. Johnston,
. When the order was signed, the number of children who were minors had been reduced to two, as one of the children had reached majority.
. Excepted from this presumption were adopted children, pursuant to the rule stated in Maryland Code (1974, 2001 Repl. Vol) § 1-207 of the Estates and Trusts Article, which, in pertinent part, provides:
"(a) General rule.—An adopted child shall be treated as a natural child of his adopting parent or parents. On adoption, a child no longer shall be considered a child of either natural parent, except that upon adoption by the spouse of a natural parent, the child shall still be considered the child of the natural parent.”
. Stating the legislative policy underlying Subtitle 10, Paternity Proceedings, § 5-1002(b) makes unmistakable its intention to benefit "children born out of wedlock”:
"(1) to promote the general welfare and best interests 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."
. Not all courts agree. For example, where "there was some evidence ... that (the presumptive father] knew that the two boys were not biologically his much earlier [and] . . signed an agreed order in 1996, admitting that he was the father of the children,” the Supreme Court of Arkansas held that the principle of res judicata applied and reversed the chancery court for failing to so order. State Office of Child Support Enforcement v. Williams,
. Section 5—103 8(a)(2)(ii) prohibits a declaration of paternity from being modified or set aside "if the individual named in the order acknowledged paternity knowing he was not the father." This is another potential basis for rejecting the petitioner’s argument that his support obligation should be terminated.
. Associate Professor Theresa Glennon has analyzed the role that marital presumptions play in a court's decision to order genetic testing. In her article, Somebody’s Child: Evaluating the Erosion of the Marital Presumption of Paternity, 102 W.Va. L.Rev. 547, 568 (Spring 2000), she observes, in part: ,
“The circumstances in which the marital presumption of paternity can be successfully rebutted varies dramatically from state by slate and by factors such as the identity of the party who brings the action, the timing of the action, the marital status of the mother and the presumed father, and the specific promises made or actions taken by the presumed father or alleged unmarried biological father. Courts with similar statutes have reached dramatically different conclusions about the circumstances in which rebuttal of the marital presumption of paternity is appropriate.
"Central to these differences is the question of the role of genetic testing. In most states, scientific evidence of paternity creates a presumption of paternity. In some states scientific evidence of paternity creates a conclusive presumption. In those states that do not treat the results of genetic testing as a conclusive presumption, courts must determine whether the results of the genetic testing are, by themselves, sufficient to rebut the marital presumption or if other factors, such as equitable estoppel or the best interests of the child, prevent the rebuttal of the marital presumption. These judicial decisions concerning whether genetic test results are sufficient to rebut the marital presumption of paternity appear to be based on assumptions about fatherhood.”
(footnotes omitted).
. In Mattingly v. Shifflett,
. Then, as now. Rule 2-423 provided:
"When the mental or physical condition or characteristic of a party in the custody or under the legal control of a party is in controversy, the court may order the party to submit to a mental or physical examination by a suitably licensed or certified examiner or to produce for examination the person in the custody or under the legal control of the party. The order may be entered only on motion for good cause shown and upon notice to the person to be examined and to all parties. It shall specify the time and place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. The order may regulate the filing and distribution of a report of findings and conclusions and the testimony at trial by the examiner, the payment of expenses, and any other relevant matters.”
. This Court refined the test for good cause in Monroe v. Monroe,
. As to this point, we pointed out:
“From the motion, and the accompanying affidavit, clearly, the only basis for requesting blood tests is the petitioner’s desire to prove that the respondent is not Beth's biological father. Indeed, her motion for blood tests is explicit in that regard. From the motion and affidavits it may also be inferred that the petitioner now believes that Beth's best interest lies in her being in the petitioner's sole custody, which requires the termination of the relationship, as it has developed, between the child and the respondent. As noted earlier, she neither offers, nor intends, to establish substitute paternity. Rather, she intends only that her paramour will adopt Beth.”
Monroe,
. Both Vermont and South Dakota had statutes which, like Maryland's Estates and Trusts § 1-206, create a rebuttable presumption that a child born during the marriage is the child of both the husband and the wife. The current Vermont Statute, 15 Vt. Stat. Ann. § 308(4)(2009), which is the same, if not, identical to the statute in effect at the time Godin was decided, provides:
"A person alleged to be a parent shall be rebuttably presumed to be the natural parent of a child if:
(4) the child is born while the husband and wife are legally married to each other.”
Likewise, the current South Dakota statute, S.D. Codified Laws § 25-5-3, provides:
"The husband and wife are presumed to be the parents of any child born to the wife during the marriage or within ten months after the dissolution of the marriage.”
. There was a dispute among the parties as to whether the disclosure was unilateral by Ms. Duckworth, suggesting an inappropriate motive, or confirmed by the petitioner. The trial court does not resolve the conflict, which does not appear to be relevant to its calculus.
. In Knill, the court focused on the detriment to the child, Stephen, as opposed to any that was possibly suffered by the mother. In present case, counsel for the petitioner focuses the detriment analysis on Ms. Duckworth, noting that she did not suffer any. We will examine if there was a detriment to the child, Julie.
. Maryland Code (1984, 2006 Repl.Vol.) § 5-203 of the Family Law Article, as relevant, provides:
“Natural guardianship; powers and duties of parents; support obligations of grandparents; award of custody to parent.
“(a) Natural guardianship.—
(1) The parents are the joint natural guardians of their minor child.
"(b) Powers and duties of parents.—The “parents of a minor child,” as defined in Article 1, § 24 of the Code:
"(1) are jointly and severally responsible for the child’s support, cáre, nurture, welfare, and education; and
"(2) have the same powers and duties in relation to the child.”
. This case is, as the Court of Special Appeals pointed out, factually dissimilar from Walter v. Gunter,
. This Court addressed the laches defense recently in Liddy v. Lamone,
"Laches is one of the affirmative defenses recognized and expressly listed in Md. Rule 2-323. Generally, it must be pled, but it can be invoked by a court on its own initiative. See, e.g., Ipes v. Board of Fire Comm’rs of Baltimore,224 Md. 180 , 183,167 A.2d 337 , 339 (1961) (recognizing that laches is a proper ground for refusing to issue a writ of mandamus); Baltimore County v. Glendale Corp.,219 Md. 465 , 468,150 A.2d 433 , 435 (1959)(noting that, although it is essential to raise the defense of laches in the pleadings, ‘equity may decline relief for a stale claim after the facts are fully developed'); Warburton v. Davis,123 Md. 225 , 231,91 A. 163 , 165 (1914)(recognizing that a court, in a proper case and on its own motion, may refuse to grant relief to a complainant who on the final hearing appears to have been guilty of laches, although the defense was not interposed by the defendant), citing Syester v. Brewer,27 Md. 288 , 319 (1867). This Court has held that laches defense in equity 'is a defense in equity against stale claims, and is based upon grounds- of sound public policy by discouraging fusty demands for the peace of society.’ Ross, supra,387 Md. at 668 ,876 A.2d at 703 , quoting Parker v. Board of Election Supervisors,230 Md. 126 , 130,186 A.2d 195 , 197 (1962); Buxton v. Buxton,363 Md. 634 , 645,770 A.2d 152 , 158 (2001); Berman v. Leckner,193 Md. 177 , 187,66 A.2d 392 , 396 (1949); Kaufman v. Plitt,191 Md. 24 , 28,59 A.2d 634 , 635 (1948). In its application, ‘[tjhere is no inflexible rule as to what constitutes, or what does not constitute, laches; hence its existence must be determined by the facts and circumstances of each case.’ Ross,387 Md. at 669 ,876 A.2d at 704 , quoting Parker,230 Md. at 130 ,186 A.2d at 197 , citing Brashears v. Collison,207 Md. 339 , 352,115 A.2d 289 , 295 (1955); Bowie v. Ford,269 Md. 111 , 122,304 A.2d 803 , 810 (1973); Day v. Day,237 Md. 229 , 236,205 A.2d 798 , 803 (1965)."
. The Court of Special Appeals did not address equitable estoppel. We believe that, unlike Knill, in the instant case, a strong case exists that the three elements required to raise an equitable estoppel are present. As mentioned earlier, the petitioner represented that he was Julie’s biological father in several filings, including the Separation Agreement and the Memorandum of Understanding between the two parties, that were accepted by the Circuit Court, as evidenced by its incorporation of those agreements into the Judgment oí Divorce and the court order of March, 2003. Julie, as did Stephen in Knill, carried the same last name as the petitioner’s other children. That signaled to the world that Julie was the petitioner’s biological child. It is reasonable to believe that, during the approximately thirteen years before the petitioner requested a paternity test, Julie believed that the petitioner was her father, the incident in 2001 involving Mr. Stanton’s daughter notwithstanding. Throughout Julie’s life, before the paternity test request, she relied on the petitioner for financial support. Moreover, the petitioner was court ordered, albeit for the most part with his consent and agreement, to pay child support for Julie. There is no assurance that, once the petitioner is relieved of that obligation, it will be met from another source, from the biological father, who, as far as the record reflects, has neither volunteered nor been tequested to undertake it. There also is the matter of the child’s emotional response to a ruling that would change her legal status and relationship. That too may be a detriment.
Concurrence Opinion
Concurring Opinion by
which MURPHY and WILNER, JJ., join.
I concur in the affirmance of the judgment of the Court of Special Appeals; however, I write separately only to note that I would reach that conclusion solely upon the judicial estoppel analysis in the Majority opinion (Maj. op. at 672-78,
Judge MURPHY and Judge WILNER authorize me to state that they join this concurrence.