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Court of Appeals bars paternity test

A man who claims he impregnated his girlfriend while she was separated from her husband has no right to a paternity test, Maryland’s top court held Wednesday.

William Corbett was seeking visitation rights with the child born to Amy Mulligan, who divorced Thomas Mulligan during her pregnancy but later reconciled with and remarried him.

The Court of Appeals said the timing of the Mulligans’ divorce did not rebut the legal presumption that a woman’s husband at the time of her child’s conception is the father.

The top court reversed the Court of Special Appeals, which said last year that Corbett had a right to a paternity test because the girl, now 2, was “born out of wedlock.”

But that decision, which was stayed pending review by the Court of Appeals, took too narrow a view of the law, Wednesday’s opinion said.

“Equating wedlock with matrimony, the Court [of Special Appeals] seems to have construed ‘born out of wedlock’ literally and thereby failed to recognize that the phrase, when applied to a child, is a euphemism for an illegitimate child or a bastard…,” Judge Lawrence F. Rodowsky wrote for the 5-2 majority. “Parents who divorce during the pregnancy of the wife do not, by the divorce alone, delegitimate their child.”

Rather, the child is “presumptively legitimate, based on her having been conceived during marriage,” added Rodowsky, a retired judge sitting by special assignment.

Intact family

Corbett could have rebutted the presumption of legitimacy, under the Maryland Estates and Trusts Article, by showing that a paternity test is in the child’s best interest, the high court ruled.

He argued that it would be in the girl’s best interest to know for certain who her father is, both for bonding purposes and to know her future medical needs.

But the court agreed with Frederick County Circuit Court Judge Theresa M. Adams’ conclusion in May 2010 that the test was not in the girl’s best interest, as she was well-cared-for and in an intact family that provided stability.

The Mulligans, who reconciled in 2010 and remarried last July, have three children in addition to the girl, now 2. Amy Mulligan said the girl has formed a strong bond with Thomas Mulligan.

Her lawyer, Laura N. Venezia, of Conklyn & Associates in Frederick, said the case, with its unusual facts, will stand for the proposition that a child is “born in wedlock” if the mother was married at either the time of conception or birth.

University of Baltimore School of Law professor Jane C. Murphy said the Court of Appeals’ decision follows its precedent instructing judges to rule based on the child’s best interest and that a child conceived during marriage is legitimate.

“The underlying policy of legitimizing children and protecting intact marital families seems to be preserved here, and that’s the underlying policy of the Estates and Trusts Article,” said Murphy, who teaches family law.

But Judge Mary Ellen Barbera, in dissent, said the statute’s language was clear and that “born out of wedlock” refers to “the mother’s marital status in relation to the child’s biological father at the time of the child’s birth.”

Barbera was joined in dissent by retired Judge Irma S. Raker, who also sat by special assignment.

Keith N. Schiszik, Corbett’s attorney, declined to comment on the decision, saying he had not had a chance to review it. Schiszik is with Day & Schiszik in Frederick.

Both sides acknowledge Corbett was romantically involved with Amy Mulligan in spring 2009, prior to her divorce that September.

The girl was born Jan. 23, 2010.

Amy Mulligan swore during her divorce proceedings that she and her husband had lived separate and apart since April 4, 2008, thus satisfying the one-year voluntary separation requirement for divorce in Maryland.

But during Corbett’s request for a paternity test in circuit court, Thomas Mulligan testified that he and Amy had sexual relations in April 2009, belying Amy’s sworn testimony but raising the possibility that he is in fact the girl’s biological father.

During the circuit court hearing, Amy Mulligan was asked about the inconsistency between her testimony during the divorce proceeding and Thomas’ testimony in the paternity case.

She declined to answer the question, citing her Fifth Amendment privilege against self-incrimination.

WHAT THE COURT HELD

Case:

Amy Mulligan v. William Corbett, CA No. 43, Sept. Term 2011. Reported. Opinion by Rodowsky, J. (retired, specially assigned). Dissent by Barbera, J. Argued Dec. 1, 2011. Filed May 23, 2012.

Issue:

Did the judge err in rejecting the paternity-test request of a man who conceived a child with a separated woman who subsequently divorced her husband before giving birth?

Holding:

No; the child is presumed to be the offspring of the husband and wife at time of conception and a paternity test would not be in the child’s best interests.

Counsel:

Laura N. Venezia for Petitioner; Keith N. Schiszik for respondent.

RecordFax # 12-0523-22 (62 pages).