Topics on this page
- Establishing Paternity
- Marital Presumption
- Affidavit of Parentage
- Judicial Declaration
- Proving Paternity
- Disestablishing Paternity
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.
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. Note that a father can file a complaint for custody or visitation without paternity have been previously established.
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.
Paternity can be established in 1 of 3 ways:
- By marital presumption;
- By signing an Affidavit of Parentage at the time a child is born; or
- By judicial declaration (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).
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. 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)
Affidavit of Parentage
If the mother is unmarried when the child is born, paternity can be established if both parents sign an Affidavit of Parentage. 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.
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. To complete the form, both parents need some form of identification and their 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
6764-B Reisterstown Road
Baltimore, Maryland 21215
If you need a form, you may contact the Maryland Department of Health's 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.
Rescinding an Affidavit of Parentage - 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's 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. 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.) Learn more about the establishment of paternity.
Read the Law: MD Code Family Law §5–1028
If the mother is unmarried when the child is born, paternity can be established by judicial declaration (through a court proceeding) in 1 of 2 ways:
1. 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.
2. 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.
Read the law: Md. Code, Family Law § 5-1038
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 department of social services 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, text messages, or voicemails 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, take them to your local child support enforcement 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 will pass an order that declares the alleged father to be the father of the child, and provides for the support of the child.
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. Learn more about disestablishing paternity.