William TURNER v. Kelly A. WHISTED, et al.
No. 52, Sept. Term, 1991
Court of Appeals of Maryland
June 22, 1992
607 A.2d 935
CHASANOW, Judge.
Frederick J. Hatem, Jr., argued and on brief (Dewey Brian Stanley Reed, Feinberg & Hatem, on brief), Bel Air, for respondent.
Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, MCAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.
CHASANOW, Judge.
On March 8, 1986, Kelly Whisted (Kelly) gave birth to a son and named him Jeffrey. Approximately five and a half months prior to Jeffrey‘s birth, Kelly married Danny Whisted (Danny). Before her marriage, Kelly was also involved in a relationship with William Turner (Turner). Jeffrey was conceived during the time Kelly was seeing Turner, and Kelly, on at least two occasions, wrote to Turner that he was her child‘s father. Despite these letters, Jeffrey was given the Whisted name and Danny Whisted was listed as father on Jeffrey‘s birth certificate. Six months after Jeffrey was born, Kelly left her husband and renewed her relationship with Turner. Despite the separation, Danny continued to visit Jeffrey on a regular basis and to pay support for his care and maintenance.
The relationship between Kelly and Turner continued for eighteen months, during which time Turner appears to have developed a relationship with Jeffrey. When Kelly and Turner broke up once again, Turner‘s contact with Jeffrey ended. Turner then filed a “Complaint for Visitation” in the Circuit Court for Harford County, naming Kelly Whisted as defendant and seeking visitation with Jeffrey. Pursu
In addition, Turner filed a “Motion for Blood Test” to establish that he was Jeffrey‘s biological father. The Whisteds, each by separate counsel, filed a Motion to Strike Turner‘s Motion for Blood Test. The circuit court assumed Turner‘s request for blood tests to be pursuant to
Thereafter, Danny Whisted filed a Motion for Summary Judgment on the ground of laches, in which Kelly Whisted joined. The circuit court granted the motion and Turner appealed to the Court of Special Appeals. The intermediate appellate court, in an unreported opinion, disagreed with the circuit court‘s dismissal of the action by summary judgment, finding that the issue of “whether [Turner had] delayed too long in seeking visitation was very much in dispute.” Accordingly, that court remanded the case to the circuit court for a resolution of the conflicting evidence related to the extent of Turner‘s delay in bringing his action.
The Court of Special Appeals then looked to the remaining issue of whether Turner was entitled to have all of the parties submit to a blood test. Viewing the Motion for Blood Test in the same posture as did the circuit court, the intermediate appellate court agreed that Turner “may not initially use the blood test provisions of the paternity stat
“Whether a male individual who claims to be the father of a child born to a married couple is entitled to petition a circuit court for a blood test to determine paternity for the purpose of determining whether said male individual is the biological father of the child when the child was conceived prior to the marriage of said married couple.”
Initially we note that neither Turner‘s Complaint for Visitation nor his Motion for Blood Test contains a single reference to the paternity statute. Indeed, as a result of the State‘s Attorney‘s refusal to consent to Turner‘s action under the paternity statute, Turner invoked the equitable powers of the court to grant visitation. As grounds for his Motion for Blood Test, Turner cites
“(b) Child of his father.—A child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the child of his father only if the father
(1) Has been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings; or
(2) Has acknowledged himself, in writing, to be the father; or
(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.”
In Thomas, an unwed father, wishing to protect his visitation rights and to assure entitlement to notice of any attempted adoption of the child, sought a declaratory judgment that he was the child‘s natural father. This Court
Referring to
“indicated that a ‘liberal interpretation’ of our legitimation statute was essential; that it was ‘not limited in its scope and application to matters of inheritance only’ but was legally sufficient ‘to establish other rights, ... arising from the relationship existing between parent and legitimate issue,’ ... and that the status sought by the father was afforded to him by compliance with the legitimation statute.”
Bridges v. Nicely, 304 Md. 1, 7-8, 497 A.2d 142, 145 (1985), quoting Thomas, 263 Md. at 542, 283 A.2d at 780. See also Dawson v. Eversberg, 257 Md. 308, 262 A.2d 729 (1970). Consequently, we believe that Turner, alleging that Jeffrey was a child “born to parents who have not participated in a marriage ceremony with each other,” quite properly cited
Most recently in Taxiera v. Malkus, 320 Md. 471, 578 A.2d 761 (1990), this Court implicitly recognized that paternity could be established by a statutory action in a paternity proceeding under the Family Law Article or in an equitable action under the Estates & Trusts Article. In Taxiera, we noted the reciprocal references in the two articles.
“see no reason why the child‘s rights to inherit from M should in any respect depend on whether M‘s paternity was established in a paternity proceeding pursuant to [the paternity statute] or in an equity proceeding like the case at bar. And if that be so then the rules of evidence controlling the proof of paternity ought to be the same in either case.” (Emphasis added).
Id. at 630, 241 A.2d at 688. See also Staley v. Staley, 25 Md.App. 99, 103-04, 335 A.2d 114, 118, cert. denied, 275 Md. 755 (1975). Consequently, we believe that
For the reasons set forth below, in those cases where two men each acknowledge paternity of the same child, we believe that an action to establish paternity is more appropriately brought under the Estates & Trusts Article. 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, 263 Md. at 544, 283 A.2d at 781; Dawson, 257 Md. at 314, 262 A.2d at 732. 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. See
As a discovery request, the court may order the blood tests on motion for good cause shown. The Whisteds’ legitimate interests in privacy must be considered along with Turner‘s relationship with Jeffrey. In Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91, reh‘g denied, 492 U.S. 937, 110 S.Ct. 22, 106 L.Ed.2d 634 (1989), the Supreme Court was presented with a factual situation analogous to the instant case. While married to Gerald D., Carol D. had an adulterous affair with Michael H. and sometime later a child, Victoria, was born. Michael H. and Carol D., without Gerald‘s knowledge, had blood tests performed which conclusively established that Michael H. was Victoria‘s biological father. Michael H. filed an action to establish paternity and for visitation. A California statute created a conclusive presumption that a child born to a married woman living with her husband is a child of the marriage, and the statute denied Michael H. the right to prove he was Victoria‘s father. Michael H. contended the California statute violated his due process rights by denying him the opportunity to rebut the presumption of legitimacy. A majority of the Supreme Court upheld the California presumption and held Michael H. had no constitutionally protected right to establish his paternity of Victoria. In a plurality opinion authored by Justice Scalia and joined by Chief Justice Rehnquist, and in part by Justice O‘Connor and Justice Kennedy, the Court noted that there was a common law presumption of legitimacy and that society has historically protected the integrity of the marital family unit
Justice Brennan in a dissenting opinion noted that “[f]ive Members of the Court refuse to foreclose ‘the possibility that a natural father might ever have a constitutionally protected interest in his relationship with a child whose mother was married to and cohabiting with another man at the time of the child‘s conception and birth.‘” 491 U.S. at 136, 109 S.Ct. at 2349, 105 L.Ed.2d at 114 (dissenting opinion). Justice Brennan pointed out that on four prior occasions, the Supreme Court had considered whether unwed fathers have a constitutionally protected interest in a relationship with their children. See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). Justice Brennan observed that these cases
“produced a unifying theme: although an unwed father‘s biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so. ‘When an unwed father demonstrates a full commitment to the responsibilities of parenthood by “com[ing] forward to participate in
... the rearing of his child,” ... his interest in personal contact with his child acquires substantial protection under the Due Process Clause.‘” (Citations and footnote omitted.)
Michael H., 491 U.S. at 142-43, 109 S.Ct. at 2352, 105 L.Ed.2d at 118-19, quoting Lehr, 463 U.S. at 261, 103 S.Ct. at 2993, 77 L.Ed. 2d at 626, in turn quoting Caban, 441 U.S. at 392, 99 S.Ct. at 1768, 60 L.Ed.2d at 307.
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) (“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....“); 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).
While Jeffrey is not a party to the action,
The criteria for determining the child‘s best interests in cases of disputed paternity include 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. Ross, 245 Kan. 591, 783 P.2d at 338; McDaniels, 738 P.2d at 262.
On remand, the trial court should consider the extent of Turner‘s commitment to the responsibilities of parenthood, and balance his interest in establishing his status as Jeffrey‘s natural father against the Whisteds’ interest in protecting the integrity of the familial relationships already formed. This balance of interests should be considered in connection with the court‘s paramount concern of protecting Jeffrey‘s best interests.
Turner‘s motion for blood tests of all parties is impeded, but not absolutely precluded, by the presumption that Jeffrey is the legitimate child of Danny Whisted. Not being prohibited from granting the motion solely because of the presumption of legitimacy, the trial court could have, and should have, held a hearing to determine whether ordering the blood tests would be contrary to Jeffrey‘s best interests. See Traci Dallas, Rebutting the Marital Presumption: A Developed Relationship Test, 88 Colum.L.Rev. 369, 383 (1988) (“All putative fathers should be afforded a preliminary hearing to determine whether [a developed] relationship exists.“) Accordingly, the Court of Special Appeals was in error in its determination that blood tests could not be used to rebut the legitimacy presumption. The issue of laches is not before us.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR HARFORD COUNTY AND TO REMAND THE CASE TO THE CIRCUIT COURT FOR HARFORD COUNTY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO BE PAID ONE-HALF BY THE PETITIONER AND ONE-HALF BY THE RESPONDENT.
ELDRIDGE, J., concurs in part and dissents in part, in which MCAULIFFE, J., joins.
I concur with the Court‘s judgment remanding this case for a determination of whether Mr. Turner is entitled to blood tests in order to establish his paternity. I do not agree, however, with the majority‘s statement that when two men claim paternity of a child, their dispute is more appropriately resolved under the
I.
The majority states (at 113):
“in those cases where two men each acknowledge paternity of the same child, we believe that an action to establish paternity is more appropriately brought under the Estates & Trusts Article. As advanced by this Court in Thomas [v. Solis, 263 Md. 536, 544, 283 A.2d 777, 781 (1971)] and Dawson [v. Eversberg, 257 Md. 308, 314, 262 A.2d 729, 732 (1970)], the Estates & Trusts Article presents the ‘more satisfactory and less traumatic’ means of establishing paternity.”
In
”Child of his father. A child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the child of his father only if the father
(1) Has been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings; or
(2) Has acknowledged himself, in writing, to be the father; or
(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.”
This portion of the statute presumes that the child being legitimated is in fact “[a] child born to parents who have not participated in a marriage ceremony with each other.” That is, the child‘s natural parents are the mother and the man seeking to legitimate the child. It does not contemplate or provide a mechanism for the resolution of a dispute over who the natural parents are.
In prior cases, this Court has held that the legitimation statute, now codified in the Estates and Trusts Article, can provide a means for a man to establish legally a parent/child relationship. Nevertheless, each of the cases relied upon by the majority for the proposition that the legitimation statute is capable of securing rights other than inheritance, involve situations in which there was no dispute as to who was the natural father of the child, and in which the natural father sought to legitimate his children who were born out of wedlock.
For example, in Thomas v. Solis, supra, Thomas fathered three children out of wedlock. He sought to legitimate the children after their mother married another man in order to protect his visitation rights and to prevent the mother‘s husband from adopting Thomas’ children without his consent. 263 Md. at 538, 283 A.2d at 778. At no point did anyone suggest that Thomas was not the children‘s natural father. It was in this context that the Court held that the legitimation statute “should certainly be of sufficient legal validity to establish other rights ... arising from the relationship existing between parent and legitimate issue.” 263 Md. at 542, 283 A.2d at 780.
None of these cases involved a dispute between two men, each of whom claimed to be the natural father. Cases of disputed paternity are more appropriately resolved under the Family Law Article. Cf. Taxiera v. Malkus, 320 Md. 471, 578 A.2d 761 (1990) (putative father‘s estate disputed paternity for purposes of inheritance, and the paternity action proceeded under the Family Law Article instead of the Estates and Trusts Article).
In this case, Mr. Turner and Mr. Whisted each has a basis under the Estates and Trusts Article for asserting that he is the child‘s father. Mr. Turner claims that the child, Jeffrey, was “born to parents who have not participated in a marriage ceremony with each other,” i.e., Mr. Turner and Mrs. Whisted, and that he acknowledged the child as his own in compliance with
On the other hand, Mr. Whisted claims that Jeffrey was “born or conceived during the marriage” and, therefore, under
Because the Estates and Trusts Article presumes knowledge of the identity of the natural father before its legitimation procedures become meaningful, I cannot agree that the legitimation provisions of the Estates and Trusts Article are better suited to resolve a dispute between two men each claiming to be the natural father. It seems to me that the paternity provisions of the Family Law Article were better designed to resolve disputes over the identity of the natural father. Nonetheless, because the General Assembly clearly intended that there be a judicial mechanism for resolving disputes over paternity, and as no action was brought under the Family Law Article in this case, I do not dissent from the remand to afford Mr. Turner an opportunity to establish his paternity under the Estates and Trusts Article.
II.
According to the majority, in order to resolve this dispute between a man presumed to be the father and a man who
In all other cases, blood tests, like other mental or physical examinations, are available upon a showing of “good cause.”
The majority opinion, however, imposes a significant burden on a man who has acknowledged paternity as required by the Estates and Trusts Article, before blood tests can be performed. According to the majority, in order to prove “good cause” for blood tests, the alleged father must demonstrate, not that the results of the tests are material to a
The majority has simply changed the law in a particular class of cases. The motivation for this departure apparently is the desire to avoid a result which the majority perceives as an evil, to be rectified by judicial fiat, namely the declaration that a man, other than a married woman‘s husband, is the father of her child. Because the determination of the identity of the natural father of this child could lead to the natural father having some rights with respect to that child, and because such rights may impinge upon the “integrity of familial relationships already formed,” the majority has reconstructed the principles which govern the resolution of disputes.2 Normally a dispute is resolved after the relevant facts are ascertained and the pertinent law is applied. Under the majority‘s construction, in this limited class of cases, sometimes the most relevant facts will not be ascertained in order to prevent an unsatisfactory resolution of the dispute. The father may bring an action to determine paternity but, in some cases, may not have access to the most germane evidence available to resolve this dispute, namely the results of the blood tests.
Nevertheless, according to the majority, if the man can prove that it is in the best interests of the child for him to be declared the father, blood tests will be provided. The majority has formulated a procedure whereby the trial court must determine the ultimate result, in order to discover whether that result is satisfactory, before it can ascertain the facts. If the court decides that it likes the
I cannot subscribe to the proposition that relevant, ascertainable evidence should be excluded because it may lead to a result which the court does not like. The trial court‘s conjecture over whether the result will be satisfactory should not determine whether facts relevant to that result are concealed. I simply cannot agree with the majority‘s view that the government (through its courts) is entitled to determine in a particular case that one will be better off by the perpetuation of a falsity and the suppression of relevant, unprivileged facts.
The notion that people‘s best interests are served by ignorance of the facts, enforced by a governmental entity, is reminiscent of the society portrayed in George Orwell‘s 1984. In that society, one of the slogans of the governing “Party,” engraved on the “Ministry of Truth” building, was “IGNORANCE IS STRENGTH.”3 While concealment of the truth is a fundamental tenet of totalitarian regimes,4 it should not be an operative principle in a free society.
I am aware of no other type of action where relevant and admissible evidence, unprotected by a recognized privilege against non-disclosure, is excluded. The majority‘s reasoning could lead to the exclusion of relevant admissible evidence in a number of cases. For example, in an incident recently publicized in the newspapers, two mothers gave birth to two girls in a Florida hospital. Either hospital negligence or unexplained circumstances led to the mothers returning to their homes with the wrong child. Under the majority‘s reasoning, in order to examine the hospital records to determine whether a switch had even occurred, the couples would have to prove that it was in the children‘s
Another example could arise in the surrogacy area.5 It is possible with current scientific advances that an egg from one woman can, by in vitro procedures, be fertilized by the sperm of a man and then implanted into the uterus of another woman who promises to act as surrogate. Although the question of which woman is the “mother” may be a controversial one, the majority‘s holding would prevent the genetic background of the child from being considered in a dispute over the identity of the “mother” unless it was in the child‘s best interests for the court to make that determination. See John Lawrence Hill, What does it means to be a “Parent“? The Claims of Biology as the Basis for Parental Rights, 66 N.Y.U.L.Rev. 353, 363 (1991).
The suppression of relevant, admissible evidence promoted by the majority in this case is unprecedented. In certain situations, the General Assembly, after balancing the privacy interests involved, has provided for records to be sealed. For example, juvenile delinquency records are confidential so that the juvenile will not be stigmatized by a criminal record.
Even if the majority‘s concern over the consequences of a paternity adjudication were justified, the majority‘s “big brother” approach would be indefensible. Nevertheless, the majority‘s concern over the consequences is overstated. The admission of the blood test results would do no more than establish the true paternity of the child.7 The best interests standard would still control the determination of visitation and custody. See McCready v. McCready, 323 Md. 476, 481, 593 A.2d 1128, 1130 (1991); Domingues v. Johnson, 323 Md. 486, 498, 593 A.2d 1133, 1139 (1991).
The ultimate determination of visitation or custody, however, should only come after careful consideration of all relevant evidence, including biological parentage. The fact of biological parentage does not automatically entitle the natural father to visitation with his child. A determination of paternity would entitle the natural father to the presumption that the child‘s interests will best be served by allowing the father visitation. Yet, this presumption can be
One commentator explained the illogic of the majority‘s position as follows:
“The question of the child‘s best interests, however, does not arise until the putative father has first been accorded his procedural right to standing to establish his paternity. This is not to say that the best interests of the child are unimportant, but only that they are irrelevant to the preliminary and essential factual determination of paternity. A successful paternity action by a putative father does not automatically entitle him to custody, for example, nor even to visitation with his child.” (Emphasis added).
Jean E. McEwen, R. McG. & C.W. v. J.W. & W.W.: The Putative Father‘s Right to Standing to Rebut the Marital Presumption of Paternity, 76 N.W.U.L.Rev. 669, 688 (1981). See Anonymous v. Anonymous, 472 So.2d 640, 642 (Ala.Civ.App.1984), cert. quashed, 472 So.2d 643 (Ala.1985) (putative father entitled to blood tests upon showing of good cause, and it is not necessary for him to prove his entire case prior to the ordering of blood tests).
The approach taken by the majority disregards the reality of the modern world in which blood tests are a reliable source of information for the determination of a fact that is relevant to the attempt by Mr. Turner to establish a relationship with Jeffrey. Justice Brennan criticized a similar head-in-the-sand approach while sitting on the New Jersey Superior Court stating (Cortese v. Cortese, 10 N.J.Super. 152, 156, 76 A.2d 717, 719 (1950)):
“In the field of contested paternity ... the truth is so often obscured because social pressures create a conspiracy of silence or, worse, induce deliberate falsity.”
Judge MCAULIFFE has authorized me to state that he concurs with the views expressed herein.