April 2011 Archives

April 11, 2011

Right To A Paternity Test

A recent opinion by the Court of Special Appeals provides Maryland Family Law lawyers further guidance on the right of an alleged father to obtain genetic testing as a matter of right. A previous posting discussed the holding in Duckworth v.Kamp. In that case the court held that when a child is born during a marriage, the court must not order genetic testing without determining that such testing would be in the best interest of the child. On the other hand, in Corbett v.Mulligan the child was born after the parties were divorced. The court ruled that the alleged father had an absolute right to demand testing. Such testing must be ordered without regard to whether it was in the best interest of the child

The court's opinion explains the policy distinction between the two cases. In recent years, the federal government has required states to provide alleged fathers the right to genetic testing as a condition of federal funding. Maryland has complied. However the right is limited to "putative fathers". The phrase is interpreted to mean an "alleged biological father of a child born out of wedlock". The court explained that if mandatory testing could be invoked every time an individual seeks to establish paternity of a child born during a marriage the consequences to intact families could be devastating. Without regard to a child's best interest, courts would be forced to order genetic testing of every child whose paternity is merely questioned. The court concluded that this was never intended by the legislature in enacting sections 5-1002 and 5-1029 of the Family Law Article.