Maryland Family Law Maryland family law opinions and commentary
A man who signed affidavits of parentage identifying himself as the “natural father” of twin boys on the Eastern Shore is not entitled to a paternity test years later to determine if he is actually their father, a divided Court of Appeals has held.
Although Justin Davis argued that his signing of the affidavits was legally equivalent to a declaration of paternity entered by a circuit court — which may be modified or set aside if a blood test excludes the alleged father — the appellate court found that the statutes governing affidavits of parentage and judicial declarations of paternity are significantly different.
An affidavit of parentage establishes a legal finding of paternity and may only be challenged within 60 days of its execution, or if the alleged parent proves that it was signed “only ‘on the basis of fraud, duress, or material mistake of fact,’” Judge Lynne A. Battaglia wrote for the court’s majority.
“To permit Mr. Davis to pursue blood or genetic testing in the face of the self-limiting language totally eviscerates the word ‘only,’” Battaglia wrote.
Joseph B. Spillman, an assistant attorney general representing the Wicomico County Bureau of Support Enforcement, said his client was pleased with the result. The agency filed a complaint for child support against Davis in 2011.
“I think [the opinion’s] main usefulness will be in hopefully providing clarity to circuit court judges on the use of parentage affidavits,” Spillman said.
‘Same destination’
In a dissenting opinion, Judge Robert N. McDonald wrote the law simply establishes the signing of affidavits of parentage as a means of “preempt[ing] the usual trial process” of determining parentage.
“Both paths lead to the same destination: a declaration of paternity,” he wrote.
“That’s our concern,” said Michael A. Davis, a Philadelphia-based attorney who represented Justin Davis, his son. “It’s just the complete inequity in how those different circumstances are handled. I can’t tell you how much I appreciate what the dissenters did in showing a different way of analyzing this.”
To deny Davis’ right to a genetic test is to interpret the law in a way that runs contrary to its purpose, McDonald wrote.
“The bottom line is evident: an affidavit of parentage is not meant to conclusively prove that which is false,” he wrote. “When an alleged father is not the biological father of the children, using an affidavit of parentage to establish paternity incorrectly over the protest of the alleged father not only unfairly saddles an individual with responsibility for children unrelated to that individual, but also deprives the children of the connection with their biological father that the affidavit of parentage was supposed to encourage and protect.”
Chief Judge Mary Ellen Barbera and Judge Shirley M. Watts joined McDonald in dissent.
Second test request
Davis signed the affidavits of parentage in December 2009 naming him the father of Jessica Cook’s sons, Nicholas Marley Davis and Benjamin Davis. The Wicomico County Bureau of Support Enforcement filed a complaint for child support against him in 2011, to which he responded by denying that he was the children’s father and refusing to pay support.
The Wicomico County Circuit Court then held a hearing on the matter, during which Cook testified she had told Davis when she was pregnant that there was a possibility he was not the father. Davis requested a genetic test to determine paternity, but the court ruled in Cook’s favor, ordering Davis to pay child support.
In September 2013, Davis filed a complaint, again asking the court to order a genetic test. But the court determined that he had waived his right to a paternity test by failing to appeal the 2011 decision. Davis then appealed to the Court of Special Appeals, which upheld the lower court ruling last year.
Davis appealed to the state’s top appellate court, which heard oral arguments in January.
Final judgment
The Court of Appeals, in addition to ruling on the merits of Davis’ request for a paternity test, also found that Davis’ claim was ultimately precluded by his failure to appeal the 2011 circuit court ruling ordering him to pay child support and denying his request for a paternity test. The 2011 order was a final judgment that he was barred from re-litigating, Battaglia wrote.
In the dissent, McDonald argued that the circuit court did not directly address Davis’ request for a genetic test when it ruled on the child support issue in 2011. For that reason, he wrote, the ruling was not a final judgment and Davis’ genetic test claim could go forward.
Battaglia, who heard the case prior to retiring earlier this month, was joined in the majority opinion by Judges Clayton Greene Jr. and Lawrence F. Rodowsky, the latter also a retired jurist sitting by special assignment.
In a concurring opinion, Judge Sally D. Adkins wrote that while she agreed with the dissent’s analysis of the statutes related to findings of paternity, she was ultimately obligated to join the majority’s judgment denying Davis a genetic test due to the re-litigation issue.
The case is Justin Davis v. Wicomico County Bureau of Support Enforcement, No. 46, September Term 2015.
