Topics on this page
- General Information
- Disestablish Paternity Established by Marital Presumption
- Disestablish Paternity Established by Judicial Declaration
- Disestablish Paternity Established by Affidavit of Parentage
To disestablish paternity means to overturn or rescind all rights and obligations of the legal father. Your options to disestablish paternity will depend on how paternity was established in the first place. One CANNOT disestablish paternity if genetic testing is done through the courts, and a man is confirmed to be a child’s biological father; however, the legal father may still be able to rescind all rights and obligations as a legal father by termination of parental rights, which is separate and distinct from disestablishing paternity.
Paternity can be established in 1 of 3 ways:
- By marital presumption (Md. Code, Estates and Trusts § 1-206(a); Family Law § 5-1027(c));
- By court order, establishing an alleged father as the legal father (either by finding of fact after a trial or without finding of fact by admittance in legal pleading or on the record) (Md. Code, Family Law §§ 5-1024-1027); or
- By signing an Affidavit of Parentage at the time a child is born (Md. Code, Family Law § 5-1028(d)(1)).
If the court finds that an alleged father is the legal father, the court must pass an order establishing paternity and financial support of the child. Learn more about establishing paternity.
Read the law: Md. Code, Family Law §§ 5-1032(a); 5-1033
Disestablish Paternity Established by Marital Presumption
A child born or conceived during a marriage is presumed to be the legitimate child of both spouses.
Read the law: Md. Code, Estates and Trusts § 1-206(a)
There is a rebuttable presumption that the child is the legitimate child of the man to whom the child’s mother was married at the time of conception. A rebuttable presumption means that the court will assume it to be true unless the presumption is challenged and proven otherwise.
Read the law: Md. Code, Family Law § 5-1027(c)
If a child is conceived during marriage, the best interest of the child standard must apply.
Read the case: Mulligan v. Corbett, 426 Md. 670 (Court of Appeals 2012)
Where paternity is established by marital presumption, a best interest of the child analysis can permit genetic testing. Determination of the best interest of the child must come before the admission of genetic testing results if a child is conceived during the marriage. A court will grant genetic testing only if the court finds that such testing is in the best interest of the child. This decision to grant genetic testing is completely within the court’s discretion.
Best interest factors to consider (not an exhaustive list):
- Stability of current home environment
- Whether there is an ongoing family unit
- Child’s physical, mental and emotional needs
- Child’s past relationship with the putative father
- Child’s ability to ascertain genetic information for medical treatment or genealogical history
There is no time limit in Maryland for a presumptive father to challenge paternity, but “belated efforts to declare a child illegitimate, for whatever reasons, should seldom prevail[.]”
Read the case: Ashley v. Mattingly, 176 Md. App. 38 (Court of Special Appeals 2007); Duckworth v. Kamp, 180 MD. App. 166 (Court of Special Appeals 2008)
Practically speaking, in a case of marital presumption, if one can obtain genetic testing by proving that such testing is in the minor child’s best interest and genetic testing proves the putative father is not the biological father, the court will disestablish paternity.
Disestablish Paternity Established by Judicial Declaration
Paternity can be established by judicial declaration in 1 of 2 ways:
- If parents are unmarried and either parent, or the Office of Child Support Enforcement, files in the court to have paternity established, genetic testing will be ordered. If genetic testing confirms paternity, any subsequent pleading to disestablish paternity will not be successful. Both parents have a duty to financially support their child.
- If, during the course of any proceeding regarding the child, the putative father states under oath (either in a pleading or on the record at a court proceeding) that he is the child’s father, without objection/question from the mother, the court can establish paternity without genetic testing.
In this scenario, there is the potential that, in the future, either parent may question paternity and seek assistance from the court. The person challenging paternity would file a motion either to start a court case, or a motion within the original case where paternity was established, requesting that paternity be disestablished, requesting genetic testing, or both.
Where a declaration of paternity been made, it can be changed or set aside (overturned):
(a) “in the manner and to the extent that any order or decree of an equity court is subject to the revisory power of the court under any law, rule, or established principle of practice and procedure in equity; or
(b) If a blood or genetic test done in accordance with Md. Code, Family Law § 5-1029 establishes the exclusion of the individual named as the father in the order.”
Read the law: Md. Code, Family Law § 5-1038(a)(2)(i)(1) and (2)
Whether the court chooses to exercise revisory power or order genetic testing is completely within the court’s discretion.
- Regarding subsection (a) – revisory power: Maryland Rule 2-535 states
(a) within 30 days of a court order being entered, the court may exercise revisory power for good cause shown
(b) outside of 30 days from the entry of a court order, the court may exercise revisory power only in instances of fraud, mistake, or irregularity.
- Regarding subsection (b) – blood or genetic testing
You can challenge paternity established under Md. Code, Family Law § 5-1038 (by a judicial declaration of paternity) at any time through a blood or genetic test
Read the case: Davis v. Wicomico County Bureau of Support Enforcement, 222 Md. App. 230 (Court of Special Appeals 2015) (This opinion seems to state that blood test can be requested at any time, but does not guarantee that it will be ordered.)
Disestablish Paternity Established by Affidavit of Parentage
Where an Affidavit of Parentage has been signed at the hospital, the affiant (legal father) may rescind the affidavit within 60 days after signing. Properly rescinding an Affidavit of Parentage within 60 days of signing disestablishes paternity.
Where an Affidavit of Parentage has been signed at the hospital and more than 60 days have passed, the affiant (legal father) may challenge the affidavit in court only on the basis of fraud, duress, or material mistake of fact.
Read the law: Md. Code, Family Law § 5-1028(d)
If it has been more than 60 days since the signing of the Affidavit of Parentage, the legal father may file a motion either to start a court case, or a motion within an ongoing court case pertaining to the minor child, requesting that paternity be disestablished, requesting genetic testing, or both.
NOTE: The material mistake of fact must actually have induced one of the signatories to sign the affidavit. Only a signatory may rescind. This means the mother cannot make this argument to rescind the legal father’s signature. Only the legal father can make this argument.
Read the case: Boone v. Youngbar, 234 MD. App. 288 (Court of Special Appeals 2017)
At a hearing on the motion filed, the burden is on the challenger of the affidavit (the person who filed the motion) to prove to the court that the Affidavit of Parentage should not be upheld because it was signed as the result of fraud, duress, or material mistake of fact.
Maryland courts have also held that where an Affidavit of Parentage was signed and more than 60 days have passed, a party challenging the Affidavit of Parentage is entitled to genetic testing, if properly requested, for the purpose of pursuing claims that the Affidavit was signed as the result of a material mistake of fact and the resulting paternity declaration should be set aside.
Read the case: Faison v. MCOCSE, 235 Md. App. 76 (Court of Special Appeals 2017)
NOTE: While the requesting party is guaranteed a genetic test, genetic testing results are not enough to disestablish paternity. The moving party still has the burden to make the additional showing of fraud, duress, or material mistake of fact in signing the Affidavit of Parentage.
The guarantee to genetic testing, if properly requested, in the Faison opinion, has an exception – where an individual named in the order acknowledged paternity knowing he was not the father.
Read the law: Md. Code, Family Law § 5-1038(a)(2)(ii)