In Maryland, if the mother is married at the time of the child's conception or birth, the law presumes that her husband is the baby’s father. If the mother is unmarried when the child is born, paternity can be established through a court proceeding or if both parents sign an Affidavit of Parentage. Establishing paternity means that the courts recognize the father’s relationship to the child. For the child's benefit, the parents should start the process as soon as possible. A father can sign an Affidavit of Parentage acknowledging his paternity even if he is married to someone else or if he is under age 18.
Establishing paternity is important for the mother, the father and the child, as it will:
- Establish a father-child relationship, enable the child to benefit from that relationship and give a child born to unmarried parents a sense of identity.
- Allow the father's name to be listed on the child's birth certificate.
- Establish the father-child relationship without going to court.
- Give the father the right to seek child custody and visitation through a court action and to be consulted about adoption.
- Give the child the right to important benefits from the father, including financial support, inheritance, social security, veteran's benefits, life insurance, and health insurance.
- Make it easier for the child to learn the medical history of the father and possibly benefit from medical insurance through the father's employer, union, or military service.
Affidavit of Parentage
The Department of Human Service's (DHR) Affidavit of Parentage is a legal document that can be signed by both parents at the time of the child’s birth. The Affidavit of Parentage is a voluntary way to establish paternity (the legal relationship between father and child) when the mother and father are not married to each other. If both parents decide to sign the Affidavit soon after the child's birth, while still in the hospital, the hospital staff can help complete the form free of charge. They can also act as witnesses. Make sure you have some identification and know your social security number. The hospital staff will send the Affidavit to the Vital Statistics Administration.
If you are unsure if you want to sign the document while in the hospital, you can take it home with you. If you choose to take the form home, both parents must complete the Affidavit, sign it in the presence of a notary public, and mail it to the:
Division of Vital Records
6550 Reisterstown Road
P.O. Box 68760
Baltimore, Maryland 21215-0020
If you need a form, you may contact the Maryland Department of Health & Mental Hygiene / Division of Vital Records at 410-764-3182 to request one. You can establish paternity via an Affidavit up until your child’s 18th birthday.
You have the right to consult an attorney before completing this form. If either of you is not sure that the man signing the Affidavit is the biological father, you should NOT complete the form.
If you signed an Affidavit of Parentage as the father or as the mother and have changed your mind about who the father is, you may rescind (cancel) the Affidavit. The method that you use will depend on how long it has been since the Affidavit of Parentage was signed. (If you and the mother signed on different dates, count from the date that the last party signed). Within sixty (60) days of that date, you may sign a Rescission Form for Affidavit of Parentage and date it in the presence of a notary public. You may obtain a Rescission Form by calling the Maryland Department of Health & Mental Hygiene/Division of Vital Records at 410-764-3182. If it has been more than sixty (60) days since you signed the Affidavit, the Rescission Form will NOT be effective. After the sixty (60) days, the Affidavit can only be nullified by a court order. In order to be successful in getting this court order, you must show that one of the following is true in your situation:
- There was fraud (someone lied to you); or
- You were under duress (you were forced to sign the affidavit); or
- There was a “material mistake of fact” (you thought one thing and another thing was true). For example, you were incorrectly told that the swab test showed that you were the father and later this turns out to be a mistake by the laboratory.
Proving one of these may require the assistance of a lawyer. If you are unsure if you are the father, you must go to court as quickly as possible to argue one of the above three points. (See PLL section "Get Help Now".)
Read the Law: MD Code Family Law §5–1028
If the alleged father denies paternity, paternity may be determined through the courts and may involve genetic testing. Your local office of child support enforcement can help prove who the father is. They will need your help. You will need to give them his last known address, what he looks like, where he works, his Social Security number and his date of birth. This information will help them locate him. Once they locate him, they can file a formal complaint.
If the alleged father refuses to submit to a paternity test, the court can order a test. Both parents and the child will have to be tested. Genetic testing no longer means taking blood with a needle. The new DNA test simply involves passing a swab along the inside of the cheek to gather a saliva sample. Arrangements for the swab test can be made with a doctor, or swab tests can be done through the local DHR office.
Test results are available in approximately four to six weeks. The test may definitely exclude the man as the father; or the test may provide an estimate of how likely it is that the man is the father. In order to be admissible in evidence, the test must establish a statistical probability of paternity of at least 97.3%. Swab tests are very reliable. This is why so few paternity cases go to trial.
Read the Law: MD Code Family Law §5–1029
If the DNA test shows a statistical likelihood of 97.3% or greater that the alleged father is the father, the case may be set for a hearing or trial where paternity will be decided. Before the issue of paternity goes to court, child support enforcement will have to do additional investigation to prepare for the trial. It will help if you can provide letters in which the alleged father claims that he is your child's father, pictures of him with your child, diaries, calendars, Mother's Day or birthday cards or proof of any money he has given you or your child. If you have any of these items, you should take them to your local child support office. When Child Support Enforcement believes that it is prepared for trial, it will request that the court set the date for trial. This process could take from a few weeks to more than a year, depending on the circumstances.
If the court finds that the alleged father is the father, the court shall pass an order that declares the alleged father to be the father of the child, and provides for the support of the child.
More information for the alleged father:
Who pays for the test?
The party who requested the paternity test is responsible for the cost of the test unless that party prevails in the proceeding, in which case the court shall assess the cost against the other parties to the proceeding.
How may I be listed on the birth certificate as the father?
In Maryland, if you were married to the mother when the child was born, your name will automatically be listed as the father on the birth certificate. If you and the mother are not married to each other, you can only be listed on the birth certificate if you have signed an Affidavit of Parentage or a court has found that you are the father.
How can I establish paternity and visitation?
You have the right to petition the court to have yourself declared the child's father. You should contact your local child Support Enforcement Administration to perform genetic testing on you, the mother and the child. You will then have to go to court to be declared the legal father. Once you are declared the father you will be responsible for child support. You may also petition the court for custody or visitation.
If I am under 18 and sign the Affidavit of Parentage, will I legally be the father?
Maryland statutes do not distinguish between an adult and a minor who voluntarily signs the Affidavit of Parentage. After you sign the Affidavit, you will be the considered the legal father.
What if she says I am the father, but I do not agree?
First, do not sign an Affidavit of Paternity if you are not sure. If you acknowledge that you were the father (even though you knew that you were not the father), you cannot change your mind later
Second, you can take a simple genetic DNA test and most likely settle the matter.
If you take no action, the mother, child, or the government may sue you to establish paternity. If you receive a summons, you must appear in court (even if you do not believe you are the father).
What should I expect if I go to court?
If you do not believe you are the father and have not signed the Affidavit of Paternity, you may be sued by either the mother or the state. If the mother is still pregnant, the trial will not take place until after the birth of the child.
Read the Law: MD Code Family Law §5-1025
After you receive a Summons to appear in court, you should find a lawyer to represent you if possible. If you are unable to afford an attorney, the government will not provide one. See PLL's "Get Help" section.
Your case will be heard by a judge. If you were not able to obtain a lawyer, the judge must explain the nature of the proceeding so that you understand it. If you do not receive this explanation, make sure to ask for it.
One of the largest parts of a paternity suit is the genetic testing. The lab report will be received in evidence if definite exclusion is established; or if the testing is sufficiently extensive to exclude 97.3% of alleged fathers who are not biological fathers, and the statistical probability of the alleged father's paternity is at least 97.3%.
Read the Law: MD Code Family Law §5-1029
What if I do not cooperate after I get a Summons to appear in court?
After you receive a Summons, it is very important that you appear in court, regardless if you believe you are the father or not. If you do not appear court, there could be serious consequences:
- The court may issue a warrant for your arrest;
- The court may find you to be the father without your participation in the proceeding.
Read the Law: MD Code Family Law §5–1024
Example: I am the biological father of a minor child, and I am in a relationship with the child's mother. The mother was married to another man when the child was born, but is now divorced. Can we change the child's last name and birth certificate?
Under Maryland law, the ex-husband is presumed to be the child’s father because the child was born during the marriage. The court can’t accept evidence to the contrary (such as DNA testing) unless it finds that it would be in the child’s best interest to disturb the marital presumption of parentage. See, for example, Ashley v. Mattingly, 176 Md. App. 38 (2007); Kamp v. Dept. of Human Servs. ex rel. Duckworth, 410 Md. 645 (2009); Monroe v. Monroe, 329 Md. 758 (1993); Mulligan v. Corbett, 426 Md. 670 (2012); Turner v. Whisted, 327 Md. 106 (1992).
If you, the mother, and the ex-husband are all in agreement, the court is more likely to be willing to enter an order recognizing you as the father and changing the child’s name. That order could also direct the appropriate changes to the birth certificate. It will be more difficult if you, or the mother, or the ex-husband, objects.