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Child Conceived During Marriage But Born After Divorce Is “Born Out of Wedlock” for Paternity Testing Purposes

Corbett v. Mulligan
No. 1033 (Md. Ct. Spec. App. 2011)

by Colleen K. O’Brien, Law Clerk
Semmes, Bowen & Semmes (www.semmes.com)

The primary issue in this case was whether a child conceived during marriage, but born after the couple divorced, was considered to be “born out of wedlock” for paternity purposes. The Court held that the child was indeed “born out of wedlock” and consequently, the man who had an affair with the child’s biological mother while she was separated from her then husband had a statutory right to a paternity test under the Family Law Article.

The facts indicated that the mother had a brief and stormy affair with the paramour while she was separated from her husband. After the affair, she reconciled with her husband, who participated in the birth of the child. After the brief reconciliation, the husband and wife divorced, and the paramour sought to establish paternity through a Complaint for Paternity, Child Support and Visitation. The mother opposed the Complaint and the trial court denied the request for paternity testing, finding that the former husband was the legal father of the child. The paramour appealed, and the Court of Special Appeals reversed.

The Court of Special Appeals explained that there were two possible, applicable statutes in this case, either: 1) the Estates and Trusts Article or 2) the Family Law Article. The paramour argued that the Family Law Article applied and the mother argued that the Estates and Trusts Article applied. Under MD. CODE ANN., FAM. LAW § 5-1029(b), a trial court must order a paternity test on motion by a party. There is no discretion to deny it. By contrast, under the Estates and Trusts Article, a blood test for paternity is discretionary. This is because under MD. CODE ANN., EST. & TRUSTS 1-206(a), a child born or conceived during a marriage is presumed to be a child of that marriage. The mother argued that because the child was conceived while she was still married, the former husband was the legal father. Because he was the legal father, ordering the paternity test was within the court’s discretion, following the consideration of the best interest of the child; the privacy right of the husband and wife; and the petitioner’s interest in the child.

The Court examined both statutes and the applicable case law. There was prior case law that interpreted the Estates and Trust Article to only apply where a child was born in wedlock. Because the child was born out of wedlock, the Family Law Article applied in this case. Consequently, the appellate court reversed the trial court and ordered a genetic test to determine the child’s paternity.


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