Marriage Presumption Yet Again: New Maryland Case, II

This is a continuation of a discussion I began yesterday.   Because the facts here are fairly complicated it took quite some time/space to lay them out.  I won’t repeat them so you need to go read that earlier post.  You can also read the opinion I’m discussing, of course.

The general topic is the marital presumption–the legal presumption that the spouse of a woman who gives birth is a legal parent.   More specifically, the question raised is about when DNA testing can be used to overcome that presumption.

Assuming you have the facts in mind, it’s time to add in the operation of law.     Remember that family law varies a good deal state to state.  This case is decided under Maryland law.  (As I side note, I’d add that the Maryland Court of Appeals, which issued this opinion, is Maryland’s highest court–the equivalent of the Washington State Supreme Court, say.)

Part of the reason this is complicated is that there are not one but two relevant sources of Maryland statutory law.  First, there is the law governing paternity proceedings.  This sets out the marital presumption and then requires blood tests to see if the alleged father can be excluded.

But then there’s the law governing trusts and estates.   This assumes that a child conceived during marriage is legitimate (which is to say, the child of the spouse) and leaves the question of blood tests to the court’s discretion which is to be exercised with an eye towards the best interests of the child.

The critical difference here is whether blood tests are required or optional.  This turns on whether you use the paternity provisions (which requires the tests) or the trust and estate provisions (under which they are optional).   The trial court applied the trusts and estates provisions and then determined it was not in the child’s best interests to do blood tests under the circumstances here.

The Court begins its discussion by recounting the history of law governing paternity in Maryland.   It’s crucial to remember that family law is profoundly shaped by history.  Not so long ago to be a child born out of wedlock was to be a bastard–a person with greatly diminished rights and stigmatized social standing.   Because this was a significantly disadvantaged category, the law evolved in ways that minimized the number of children consigned to it.  So a child conceived during a marriage but born after the end of the marriage was not a bastard.   Neither was a child conceived before a marriage but born after it.   It’s only by understanding the historical treatment of illegitimate children that the sense behind this structure is clear.

That said, DNA was used in the paternity provisions noted above to allow a man to defend himself against the obligation to support a child.   The idea was that the tests worked to the advantage of the husband who might otherwise have to support a child who was not “his.”    DNA tests are a shield by which a man may protect himself from an unwanted support obligation.

Ultimately the court here is unwilling to see Gracelyn as a child born out of wedlock because she was conceived during her mother’s marriage.   A presumption of legitimacy attached.   Blood tests cannot be required until the presumption is overcome–which is to say that the blood tests cannot be the basis on which the presumption is overcome.  And blood tests cannot be conducted until it is  established that the blood tests are in the best interests of the child.

I don’t think the court makes it clear how the presumption of legitimacy can be overcome in a case like this.   But it is clear that unless it is overcome, then the best interests of the child will determine whether blood tests are done.

William Corbett didn’t show it was in Gracelyn’s best interests to do blood tests and so they won’t be done.   This leaves the presumption of legitimacy intact and makes Thomas Mulligan the legal father of the child.   The case is remanded for consideration of other issues and I don’t know what those are.   Perhaps we are not done yet.  But for the moment it appears that Thomas Mulligan is the legal father of Gracelyn.



.      And they don’t fit together very well.   I’m going to review the two lines first.

First there’s the sections of Maryland law devoted to “Paternity Proceedings.”


2 responses to “Marriage Presumption Yet Again: New Maryland Case, II

  1. Why would it not be in everyone’s best interests for her biological father to be accountable to and for his child until she turns 18? Why would it not be in everyone’s best interest to plainly and truthfully make that child a legal member of her own family because being a member of her own biological family has distinct advantages that cannot be duplicated by any other family no matter how wonderful and devoted that other family may be to her upbringing.

    And if the Mother’s ex husband is so damn devoted to his ex wife’s illigitimate child then he won’t mind continuing to do all the work he has been doing for his step child without the lofty special title of father because giving up that title means she can reap the benefits of the parent/child relationship that she was born entitled to. Why would this devoted step father want to get in the way of what is clearly in her best interests? She gets much much more of everything (love family financial support ) with her own biological father as legal father and her mother’s husband as her step father. Its clearly not in her best interests to keep her step father as father that just benefits the marriage – and really so what about their marriage? Their relationship is contractual and can be broken in court. We are talking about crafting a permanent blood like relationship with someone who is not blood and we are talking about doing it without going through an adoption and over the objections of her father who wants to raise his kid. I find the law and those relying on it to be totally out to lunch and quite frankly cruel beyond belief. I’m so ashamed of our legal system when I hear about rulings like this. Its an embarrassment. That child is going to be pissed off when she grows up. Already I have known 2 people to change their names back in similar situations where they were stepped on my their mother’s husbands all supposedly in their best interests because the mom was not inlove with their real dads any more. Its just so damn self centered.

  2. Thank goodness Thomas was declared the legal parent. Of the three adults involved in this case, he appears to be the only one with the best interests of the child at heart and the only one with the love, compassion, and common sense needed to raise a child. The other two adults seem rather self-absorbed.

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