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xavierjd
xavierjd, Lawyer
Category: Family Law
Satisfied Customers: 3400
Experience:  20 yrs exp. in divorce, custody, visitation & support .
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A circuit court judge denied the request of a mother seeking

Customer Question

A circuit court judge denied the request of a mother seeking a paternity test on her five year old child. ( The mother is attempting to bastardize the child)

The judge ruled that it is not in the best interest of the child to order a genetic test.

The mother was married at the time of birth, but not at the time of conception. The father of record is on the birth certificate, signed an affadavit of parentage, and has been an active father in the child's life for 5 years.

The mother argues that a best interest analysis is not required as it is the right of the putative father ( not the father of record) to assert his claim.

She is now appealing the circuit courts decision.

Any opinions would be appreciated. Frederick County, Maryland.
Submitted: 1 year ago.
Category: Family Law
Expert:  xavierjd replied 1 year ago.
Thank you for using JustAnswer.com It will be my pleasure to assist you today.

Is she now divorcing the father who is on the birth certificate?

Thanks
Customer: replied 1 year ago.

A judgement of Absolute divorce has been signed since October of 2012. However, Child support, Access and Custody has been reserved for a future date.

Expert:  xavierjd replied 1 year ago.
Hi Andrew,

Why was child support, access and custody reserved for a future date?

Thanks
Customer: replied 1 year ago.

Circuit court had a criminal case the next day that took priority ( This was a two day trial).


 


The Divorce Complaint was filed a year prior, there was an urgency to settle it because of a rule that it had to be heard within a certain time frame.


 

Expert:  xavierjd replied 1 year ago.
Hi,

I want to make sure that I understand a few things so that I can give you the best service possible.

1. Did your divorce case actually go to trial? If so, did the trial ever finish--such that custody, child support and visitation were resolved?

2. How could a Judgment of Divorce be signed by the judge if your trial didn't finish?

3. Are you paying child support?

4. Do you get visitation?

5. Or, do you have primary physical custody of the child?

Thanks
Customer: replied 1 year ago.

1. The parties came to a mutual agreement the day of and entered it unto the record. This resulted in Property and the absolute divorce being settled.


 


2. The judge signed the Judgement of Abs. Divorce, reserving the above mentioned items to be heard. However, in the meantime the plaintiff requested a hearing for a paternity, which the judge denied last month after the hearing.


 


3. Yes, however child support was never established by using the state calculations, the judge basically didn't have time to hear it and set it Pendente Lite on three different occasions.


 


4. Yes, a PL order 3 days to the father 4 days to the mother.


 


5. I am told each parent has natural joint custody of the children. There is no order, other than the PL order for access, which states any different.


 


 

Expert:  xavierjd replied 1 year ago.
Hi Andrew,

Thanks for the information.

I want to look up a few things for you. I will be back with an answer asap. It may take a little time.

Thanks for your patience.
Customer: replied 1 year ago.

Judge referred to the following case law: If it helps form an opinion:


 


Turner vs Whitsed 327 MD 106, A 2D 935 ( 1992)


Monroe vs Monroe 426 MD (march 2012)


Kamp vs DHS 410 MD 645, 980 A. 448 ( 2009)


 


 


Mother orally depended on McDermott v Doughterty 385 Md 320, 869 A2d 751 &
Barret v Ayers 186 Md App 1, 97 A2d 905 ( 2009)

Expert:  xavierjd replied 1 year ago.
Hi Andrew,

The mother's claim that a best interest analysis is not required as it is the right of the putative father ( not the father of record) to assert his claim will FAIL on appeal.

There is a 2010 case that speaks directly to the issue. When a child is born DURING the marriage, then the "best interest" analysis applies.

Only when the child is born OUT OF WEDLOCK does the putative father have the right to DEMAND a paternity test.

Below is a link to the 2010 case of Corbett v Mulligan decided in the Maryland Court of Appeals. It is an interesting read. The case sets forth the the standard of review that the Court of Appeals uses, the alternative statutes and how they apply, and the analysis of the applicable case law. As you read the case, pay close attention to page 16 forward. The court sets forth the analysis for "the best interest of the child" and the types of cases to which it applies. When a child is born DURING the marriage, the "best interest" standard applies.

http://mdcourts.gov/opinions/cosa/2011/1033s10.pdf

Further, the case cited by the mother is PRIOR to this case. And, the Court in Corbett addresses the cases cited by the mother.

I hope you find this information useful.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions.

Thank you for your business!

xavierjd

***Answers given are for informational purposes only and are not meant to replace the advice or assistance of an attorney licensed to practice law in your state. If you need any more information, please do not hesitate to ask. Thank you!




xavierjd, Lawyer
Category: Family Law
Satisfied Customers: 3400
Experience: 20 yrs exp. in divorce, custody, visitation & support .
xavierjd and 5 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you
Expert:  xavierjd replied 1 year ago.
Hi Andrew,

Thank you so much for the "excellent service" rating! It is greatly appreciated and I am glad that you found the information useful.

If you have future questions, you can specifically request me by name as the expert.

Thanks again,

xavierjd

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