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.