The Marriage Presumption Again: When DNA Might Not Matter

There’s a new and rather complicated opinion from Maryland that offers yet one more opportunity to consider the marital presumption.    It’s going to take a while even to describe the case, but I think it is worth it.

Remember that the idea behind the marital presumption is that when a married woman gives birth her spouse (and in some states that means male or female spouse) is presumed to be the parent of the child.   This is an old presumption and the details of it vary a lot from place to place these days.  You can read a number of posts about different questions raised in different cases if you poke around the blog.

One question that arises with some regularity now is whether a man can rebut the presumption and claim parentage by producing DNA evidence that shows that he (and not the spouse) is the gamete provider.    The Maryland case arises in this type of situation.  

Amy Mulligan is the mother of Gracleyn Mulligan.   Gracyeln was born on January 23, 2010, which means she is just over two years old now.

Amy had married Thomas Mulligan in 1999.   They had three children before 2009, but the marriage was apparently troubled and in 2009 they separated.   There’s an agreement that says that they’d been living apart since 2008 but they did actually live in the same house in March and April 2009 and they did engage in sex.

At about the same time (March 2009) Amy began a relationship with William Corbett.  They also engaged in sex.   They wanted to conceive a child and so timed their sexual encounters around Amy’s fertility cycle.

In May 2009 Amy told William she was pregnant.   In August Amy and her three children moved in with William, but this didn’t last very long.   He told her to leave after a month or so.   She moved back in with her soon-to-be-ex-husband, Thomas.   Their divorce became final in September 2009.    (It seems that Amy may have lied to the court about details of her relationship with Thomas, but it isn’t clear to me this matters for our purposes here.)

When Gracelyn was born in January 2010, Thomas encouraged Amy to tell William.   She called William that evening and he visited the following day.   Amy asked William to sign an affidavit of parentage.   I think if William had done so it would have changed the remainder of the story, but he refused to sign.

 [He] refused to sign because, he later testified, he was upset that he “wasn’t being treated as the father” and “needed to be 100 percent sure” that he was the father. After a further angry exchange, William left the hospital, and, according to Amy, “that was the last that we heard from him or saw him or had any contact with him.”

Page 13.   After this

[Thomas] informed [Amy] that he “would love to be the baby’s father. The baby needs insurance. Baby needs to be taken care of and put my name down.” Mr. Mulligan did not testify explicitly that he signed the affidavit of parentage and no such affidavit was entered into evidence.  Since September 2009, when [Amy] returned to the family home, [Thomas] has taken on the role of Gracelyn’s father.


In February 2010 William told Amy he wanted to be recognized as the legal father of Gracelyn and asked that genetic testing be done.   This is the request that lead to the litigation.

As far as I can tell, the testing has not been done.  However, it does seem that it is extremely unlikely that Thomas (the ex-husband) is the genetic parent of Gracelyn.   He had a vasectomy some years earlier and there is no indication that this surgery was ineffective.

I’m obviously not going to get very much further in this post, because as I said the facts are complicated.   Gracelyn was conceived during a period of time that Amy and Thomas were married, even thought they were essentially separated.   By the time she was born, they were no longer married, although it appears their relationships was on a better footing than it had been.  William was offered a chance to claim parentage (by signing the affidavit) but didn’t take it.   Should the court order testing under these circumstances?   Does it depend on what is best for Gracelyn?  If it does, what do we know about that?

I’ll turn to the legal analysis (which is also quite complicated) tomorrow.  For now I want to point out one thing that really strikes me.   Thomas was and is willing to offer his love and support to Gracelyn unconditionally–whether he is genetically related or not.   William wasn’t willing to do that.  He needed to know that the newborn was “his” before he would take responsiblity.

I can just hear some of you saying that William behaved perfectly reasonable–he shouldn’t have to raise another man’s child.   But it strikes me that Thomas’ unconditional commitment is an indicator that he might be the better parent for Gracelyn.   There’s something almost mythic about the facts here and I can see why it took the court a while to work around to its decision.    Certainly there’s much to think about.



13 responses to “The Marriage Presumption Again: When DNA Might Not Matter

  1. I wonder if the genetic testing should be done because Gracelyn should know who her bio father is. Clearly there is reasonable doubt that Thomas is the dad even if he’s behaving like a good father – if William is effectively acting as a sperm donor then we’d say she has the right to know.

    • This is an interesting an important point that raises great questions. Perhaps the best reason to do the testing is so that Gracelyn knows her genetic heritage. But that’s not why William is seeking it, nor is it why Thomas (who isn’t actually a party to the case) and Amy are resisting it. If the testing were done it would be used to establish legal parentage.

      This makes me wonder–if what is most important is Gracelyn’s right to know her genetic origins, maybe we would be better served by crafting legal doctrine around that idea and moving away from the idea that DNA helps us pick who gets to be a legal parent. That might make the resistance here dissolve. After all, I suspect that the parties pretty well do know what the DNA test would show.

  2. I wouldn’t turn this case on the marital presumption but on the fact that William had a chance to be recognized earlier and refused. You can’t change your mind back and forth and disrupt everyone’s life. You live with your decisions.

    • Right–that’s an interesting factor to add in. It sounds like he was given a right of first refusal, as it were. But of course, his refusal was based on his desire to be sure about the genetics before he accepted. If we thought that was a reasonable grounds for refusing–or a reasonable condition to impose before accepting–then maybe his refusal shouldn’t be held against him?

      To be clear, I’m with you on this one, I think. I think he could have claimed parentage and chose not to and that’s pretty well that. But that sits easier with me because I don’t think his insistence on clearing up the genetics first is something we ought to reward.

      • “I don’t think his insistence on clearing up the genetics first is something we ought to reward.”
        This is mindboggling. A man has a brief, doomed relationship with a woman and you think he should be faulted for not wanting to be her child’s father forever, if it isn’t his?
        Of course if Amy tried to prevent genetic testing, it’s her fault.

      • Doesn’t it matter, though, who the bio dad of this child is? It’s like they’re playing a lottery to be a dad when one person actually has legal responsibilities and the child has rights.

        In William’s place I would worry about making legal ties with a woman I’d had a broken relationship with, who has a strong relationship with her ex and where the girl is now living as a family with children who may be her full siblings. Dragging my family in too, and making my parents think they were grandparents when they weren’t, is an added complication that could be avoided. Vasectomies aren’t 100% effective after all.

        At worst asking for a test is a delaying tactic, since it’s a matter that could be sorted out in days.

    • Bullsht! Its his kid of course he can change his mind! Disrupt everyone’s lives? You mean lies! Disrupt their lies! The father of this child wants to take responsibility for the child he created and that is ALWAYS a good thing. He wants to be recognized as his child’s father and wants to have an equal hand in raising her. He wants to lighten the load and share the financial burden with his child’s biological mother. He wants to do what we expect men to do when they have offspring. Disrupt someone’s life? Exactly how does the truth and placing responsibility squarely in the lap of the person responsible for creating the child in question disrupt everyone’s life? The biological mother and her ex-husband can go on living as they are living with her ex-husband playing an important and integral roll in the life of his ex wife’s child. Taking away the title of father won’t change how the child feels about him but it will take him off the hook financially and then anything he does give will be willingly out of the goodness of his heart and not a legal obligation because he is not the one that owed it to the kid to be there, her biological father owes it to her to be there physically and financially and anyone who gets between a child and the parent who owes them that debt should be ashamed of themselves. She can have both. She can have what her father owes her and what her mother’s ex husband is willing to give her if the adults in this situation are not so selfish as to think of nothing but their egos.

      Its lovely that her ex husband was so loving and generous. Really. I’m sure that Graclyns father is grateful for the support he’s shown his daughter, but all the man wanted was a DNA test to establish paternity. The issue of who gets to be her father should not be based on the whim of the child’s mother and whoever she happens to be blowing at the moment which is in fact the way it reads from here. So if they are concerned about what is best for the child how about the truth for starters and then how about showing her that grown ups don’t go around getting women pregnant and just walking away from the responsibility for raising the children they create and how about showing her that wearing the hair shirt is not always the best option when the person who should take responsibility is actually ready willing and able to do so. I have no empathy for her exhusband as a martyr if the father is right there trying to get custody of his kid.

      Disrupting people’s lives. Honestly.

  3. I agree with William actually for not signing the paternity acknowledgement at the time without first undergoing a DNA test. The paternity acknowledgement form (at least in my state) itself advises the man NOT to sign if he has any doubt. But from the way the story goes, it doesn’t sound as if Amy was holding up the DNA test, if she was she wouldn’t have asked him to sign.
    So i guess in my view the case turns on who’s at fault, which can often be very messy to decide- a he said she said sort of situation. You can understand why the law might have a preference for cut and dry rules- whether marriage or DNA- to avoid all this mess.

    • Now I’m actually a bit confused about your position. If William was entitled to refuse to agree to parentage until he saw the DNA test (which seems to be his position) then it seems to me you shouldn’t hold it against him that he exercised that right. But in your earlier comment I thought that is what you suggested for a rationale.

      I’m not sure what you mean by “fault” here, either. Is the question whether WIlliam is at fault for not agreeing to parentage or whether instead it was Amy’s fault? What is the fact question that this raises? If William wanted to know the genetics before opting in or out is he at fault or is Amy at fault for insisting he act before knowing for sure?

  4. And in the end, since typically the kid is already living in the marital home, I can sort of see the preference for marriage over DNA. but I am still partial to the fault finding method at least in this case.

  5. btw Julie I had thought the marital presumption was applied at the time of birth, not conception?

    • Off the top of my head (and so I could be wrong) I think the general unwillingness to make a child illegitimate meant that the marital presumption applies if either the child is born during the marriage or if the child was conceived during the marriage. It’s the most expansive structuring you could have.

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