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Establishing Paternity: The First Step to Parenting

Legally establishing paternity is a critical first step to establishing your parenting rights.  Legally recognized parents enjoy certain rights which may otherwise not be available, or only available on the whim of the other parents.  This can include the right to custody or visitation, and the right to have some say in decisions regarding the child’s education, health care, etc.  Additionally, children who are legally recognized enjoy additional benefits, which can include:

  • Social security benefits;
  • Veterans benefits;
  • Inheritance rights;
  • Health insurance;
  • A better understanding of the complete family medical history; and
  • A meaningful relationship with both parents, as well as extended family members.

In situations where adoption is a possibility, establishing paternity assures the father becomes a meaningful decision maker in the process.

Paternity under Maryland Code

            Paternity through Marriage

In the state of Maryland, two situations exist where the presumption of paternity of the child attaches.  When a man is married to the child’s mother at the time of conception, he is presumed the father.  Additionally, where marriage occurs after conception but before the birth of the child, the presumption of paternity attaches.  A court order excluding the man as the child’s father is the only way to overcome this presumption.

           Paternity Based on Birth Certificate

When a man’s name appears on the child’s birth certificate, the presumption of paternity exists.  There are a few ways to accomplish inserting the father’s name on the birth certificate.  First, a man may sign an Affidavit of Parentage while the child is still in the hospital.  This results in the father’s name being placed on the child’s birth certificate from the start.  Hospital staff assists in this process free of charge, and forwards the Affidavit to the Office of Vital Statistics.

If the child has already left the hospital, the parents may still sign the Affidavit of Parentage.  However, once the child has left the hospital, both parents must sign and notarize the Affidavit.  The Maryland Department of Health & Mental Hygiene/Division of Vital Records provides this affidavit.  Parents have the option of signing the Affidavit of Parentage at any time up until the child reaches the age of 18.

            Additional Information about Affidavits of Parentage

A word of caution: signing an Affidavit of Parentage creates certain legal obligations.  It is a good idea for both parents to discuss this decision with a family law attorney.   If you have signed an Affidavit of Parentage, you can cancel the commitment by signing a Rescission Form for Affidavit of Parentage.  However, cancelling the Affidavit must occur within 60 days of the date of the original Affidavit.  Once 60 days have passed, the signer must provide the court evidence of one of the following to secure a Rescission of the Affidavit of Parentage:

  • Someone forced the signer to sign the document (legally referred to as “duress”);
  • Someone perpetrated a fraud on the signer (in other words, someone lied to the signer about a material fact, which led to the signing of the Affidavit);
  • Another material mistake of fact, such as a mix up at the laboratory that performed DNA testing, where the signer was told he was the biological father when, in fact, he was not.

        Paternity Based on the Mother’s Representation

Under Maryland law, Title 5, subtitle 306 (4), a man is legally considered the father of a child if the child’s mother names the man as the child’s father.  However, the mother does not have complete control over this determination of fatherhood.  Where a mother names a man as the father, the alleged father has the right to sign a “denial of paternity.” The state imposes short time frames for this denial.

         Paternity Based on Genetic Testing

Either party may request paternity testing to establish paternity.  There are a few ways to accomplish this.  First, the parties may agree to hire a private company to determine paternity.   If the mother is seeking child support, the state of Maryland assists in the process.  Genetic testing either excludes the man as the father of the child, or provides an estimate of the likelihood the man is the father.  This likelihood of paternity is expressed as a percentage.  In Maryland, when the genetic test establishes the probability of paternity at 97.3 percent or higher, this evidence is admissible in a paternity hearing or trial.  Based on the test results, the parties may agree to paternity, or, where they disagree, the parties may have a hearing or trial to determine the issue.

A Summons for Paternity Testing

While sometimes, the parties seek genetic testing together, there are other times when a mother seeks to establish paternity.  The state of Maryland may also have an interest in establishing paternity.  If you receive a summons to submit to DNA testing regarding paternity, you are required to attend the court proceeding.  This is true even if you don’t think you are the father of the child, or believe you have proof that someone else is the father.  Unlike in criminal cases, the government will not provide you with an attorney.  Consequently, it is critical that you obtain a family law attorney to represent you.  This includes an attorney who can review the DNA test results to ensure the report is accurate.

A failure to appear in court in response to a summons can have very serious consequences.  First, the court may issue a warrant for your arrest.  Once issued, a warrant gives law enforcement the right to take you into custody and hold you in custody until you appear before a judge.  Separately, the court may determine you are the father of the child in your absence.

Both Parents Have an Interest in Their Child

If you are a parent interested in establishing paternity, consult the attorneys at Fait & DiLima, LLP.  We look forward to discussing your concerns about child custody, visitation, child support, and other issues vital to your family unit.

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