Faison v. Murray , 235 Md. App. 76 ( 2017 )

Faison v. MCOCSE
No. 1486, September Term 2016
Opinion by Nazarian, J.
HEADNOTES
MARYLAND FAMILY LAW ARTICLE SECTIONS 5-1028, 5-1032, 5-1038
A father is entitled to a blood or genetic test on request for the purpose of setting aside a §
5-1032 judicial declaration of paternity or attempting to rescind an affidavit of parentage
under § 5-1028.
MARYLAND FAMILY LAW ARTICLE SECTIONS 5-1028, 5-1038
An order pursuant to § 5-1032 does not preclude an assertion of a right to a genetic test
under 5-1038.
PATERNITY – AFFIDAVIT OF PARENTAGE – MISTAKE OF MATERIAL FACT
An alleged father may request a blood or genetic test to establish a material mistake of fact
in an effort to rescind an affidavit of parentage.
Circuit Court for Montgomery County
Case No. 134567-FL REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1486
September Term, 2016
_________________________
REGINALD FAISON, JR.
v.
MCOCSE, ex rel KASANDRA MURRAY
_________________________
Nazarian,
Beachley,
Zarnoch, Robert A.
(Senior Judge, Specially Assigned),
JJ.
_________________________
Opinion by Nazarian, J.
_________________________
Filed: December 4, 2017
Although it was hardly Reginald Faison, Jr.’s plan, his appeal in this case reprises
Davis v. Wicomico Cty. Bureau, 447 Md. 302 (2016), without the intervening res judicata
question. Throughout KaSandra Murray’s (“Mother”) pregnancy, Mr. Faison believed he
was the father of her child. The day after the baby girl (“Child”) was born, both Mother
and Mr. Faison signed an affidavit of parentage attesting that Mother was Child’s mother
and Mr. Faison was her father. In the months that followed, Mr. Faison and his family
maintained a relationship with Child. But he came over time to suspect he wasn’t Child’s
father after all, the relationship ceased, and these child support proceedings ensued.
In response to the Montgomery County Office of Child Support Enforcement’s
(“MCOCSE” or the “Office”) complaint against him, Mr. Faison denied formally that he
was Child’s father, and requested a blood test to determine paternity. The Circuit Court for
Montgomery County denied his request, finding the affidavit had created a presumption of
parentage and that he had not borne his burden of proving that he signed it as a result of
fraud, duress, or a material mistake of fact.1 He appeals on two grounds: first, that the
circuit court erred when it denied his Motion for Genetic Testing, and second, that the
circuit court erred by failing to consider whether he met his burden of proving a material
mistake of fact. We agree with his first contention and reverse so that he can pursue the
second on remand.
1
The court also ordered him to pay child support, a decision not before us in this appeal.
I. BACKGROUND
Mother and Mr. Faison met at Salisbury University. They first had sexual relations
in mid- to late July 2014, returned to college in August, and began dating exclusively in
late September. On January 14, 2015, Mother texted Mr. Faison and told him she was at
least three months pregnant and that he was the father. He believed he was the father after
calculating three months from January and determining that the baby was conceived in late
September, when they last had unprotected sex. He later testified that learning the baby
was due in mid-June 2015 gave him “more reason . . . to believe that [Child] was [his].”
As it turned out, Child was born a month earlier, on May 15, 2015. Even so, Mother
and Mr. Faison signed an Affidavit of Parentage (the “Affidavit”) the day after Child was
born. The top of the Affidavit stated that “This Affidavit is a legal document and
constitutes a legal finding of paternity.” (Boldface type in original.) And above the space
for his signature, Father acknowledged paternity, under penalties of perjury:
I solemnly affirm under the penalties of perjury that the contents of the
foregoing paper are true to the best of my knowledge, information, and
belief. I am the natural father of the child named in Part I of this affidavit.
(Emphasis added.) Mr. Faison also was listed as the father on Child’s birth certificate.
Mr. Faison testified that when he signed the Affidavit, he believed he was Child’s
biological father, and he would never have signed it had he known the actual conception
date, which he came later to believe occurred sometime in August, not late September. He
2
testified that two at-home DNA tests excluded him as the father.2 Although Mr. Faison and
his family developed and maintained a relationship with Child from the time she was born
until early December 2015, all communication and contact with Mother and Child ceased
after that point.
The Office filed a form complaint against Mr. Faison for child support that relied
on the Affidavit to establish parentage. Mr. Faison answered the Complaint and denied
that he is Child’s father. In addition to the relative timing of their last relations and Child’s
birth, Mr. Faison attached copies of Mother’s separate petition to change Child’s name
from his to hers, 3 as well as the results from the at-home DNA tests. 4 Along with his
answer, Father also filed a Motion for Genetic Testing (the “Motion”) that the Office
opposed.
The circuit court held a hearing on the Motion on August 19, 2016. After taking
testimony from Mr. Faison, his mother, and Mother, the court found that Mr. Faison had
2
Counsel for the Office objected to Mr. Faison’s reference to the DNA results on the
grounds that the at-home tests were not court-approved, but the court permitted the
testimony on the condition that it was admissible “for the purpose of the process and not
for the truth of the matter asserted.”
3
In her Petition for Change of Name, Mother wrote that “Reginald Faison Jr. is not the
father.” She contended at the hearing that she did this only in response to a letter from Mr.
Faison’s counsel threatening liability for his attorney’s fees if she didn’t. When asked on
redirect whether she believed it would be in Child’s best interest to have contact with her
biological father, Mother testified that Mr. Faison is Child’s biological father. Mother then
stated that Child “knows [Mr. Faison] as her father.”
4
The DNA Test Report that Mr. Faison submitted notes that the results “may not be
defensible in a court of law for the establishment of paternity . . .” because the samples
were not collected under a strict chain of custody by a third neutral party.
3
signed the Affidavit and that his signature was not the a result of fraud or misrepresentation,
and denied his Motion:
I make the following findings. The child in this case was born
in May 2015. There has been lots of testimony here today about
[Mother]’s contact with [Mr. Faison]. So [Mother]’s contact
with Mr. Faison and also her contact with another gentleman
whose last name is Marshall.
The testimony establishes that from the time [Mother]
announced that she was pregnant and that she believed Mr.
Faison to be the father Mr. Faison and his family participated
with the child—well, not the child yet—with [Mother] in an
attempt to get to know her and her family and that there were
no questions about whether Mr. Faison was the child’s father.
***
I don’t know and I don’t think anybody in the courtroom knows
exactly when this child was conceived given that the plaintiff
and the defendant were involved in a romantic relationship
which included sexual relations. I also have evidence from the
defendant that when he was presented with the affidavit of
parentage at the hospital he signed it. The plaintiff stated that
she asked him whether he was sure about this. He says that
didn’t happen. Either way he signed it.
As we discussed at some length, the affidavit of parentage itself
has a series of instructions at the top of the page which are clear
about what you should do if you have any questions or there is
any possibility that you think you might not be this child’s
father. And then we get to the fall of 2015 when the paternal
grandparents decided that they would have the child tested.
So they got a home kit and they did a test. And then they got
another home kit and they did another test and both times the
test indicated that Mr. Faison wasn’t the child’s father. While
what I am about to say probably sounds like a ridiculous legal
hurdle because of the way the law works and should work with
regard to children and parents, and because there needs to be
4
some control over testing gets done, and by whom the court
system contracts with an entity to do the testing.
We don’t do testing when someone has already acknowledged
parentage. This alas until about 30 years ago was the method
by which we identified who is a parent was that the woman was
pregnant and a man who had been with her took responsibility
or sometimes didn’t and once in a while there had to be a
proceeding, a trial, but often what happened is the woman was
left in a situation where she had a baby that couldn’t be
identified—whose father couldn’t be identified. We don’t do
it that way anymore but we haven’t quite gotten to the place
where we test every child at birth.
So do we test them in the hospital waiting room and whoever
is there gets tested and it turns out that person is not the father
we go from there[?] I hope we never get there but we might
have to because of this kind of situation. It is clear that
sometime during the year of 2014 up until sometime in the
summer [Mother] had relations with another man,
Mr. Marshall, who also goes by BJ. I do not have the evidence
today to say that Mr. Faison’s acknowledgment of parentage
of [Child] was the result of fraud or misrepresentation.
And because this is the case, I cannot order the testing that he
would like me to order so that he could prove or not that he is
not the child’s father. So that’s the legal answer. And now the
practical answer which is that it is clear to me from the
evidence that I had that your family embraced this child and
then has not had any contact with her because of a testing
process that was done outside the legal framework and
decisions that were made about what that testing meant.
After a second hearing on child support, Mr. Faison filed a timely notice of appeal.
We will discuss additional facts as necessary below.
5
II. DISCUSSION
Mr. Faison raises two issues on appeal.5 First, he argues that he was entitled under
Davis v. Wicomico Cty. Bureau, 447 Md. 302 (2016), to an order for genetic testing and
that the circuit court erred in denying it. Second, he argues that the circuit court erred by
failing to address whether he met his burden of proof of mistake of a material fact. We
review the court’s legal decisions de novo, Walter v. Gunter, 367 Md. 386, 392 (2002), and
review for abuse of discretion the court’s application of the law to the facts, since trial
courts are “in the best position to assess the import of the particular facts of the case and to
observe the demeanor and credibility of witnesses.” Beckman v. Boggs, 337 Md. 688, 703
(1995) (citing Petrini v. Petrini, 336 Md. 453, 470 (1994)).
A. Mr. Faison Is Entitled To Genetic Testing.
First, Mr. Faison argues that the court erred when it denied his motion for an order
authorizing genetic testing, and that he was entitled to a test for the purpose of proving that
5
Father phrased the issues as follows in his brief:
1. DID THE TRIAL COURT ERR IN DENYING
FAISON’S MOTION FOR GENETIC TESTING
WHEN THE STATUTE MAKES SUCH TESTING
MANDATORY UPON REQUEST OF A PARTY?
2. DID THE TRIAL COURT ERR BY DENYING
FAISON’S MOTION FOR TESTING WITHOUT
CONSIDERING WHETHER FAISON HAD SIGNED
THE AFFIDAVIT OF PARENTAGE AS A RESULT
OF A MATERIAL MISTAKE OF FACT?
6
he signed the Affidavit under the materially mistaken belief that he was Child’s biological
father. The Office counters that he was not entitled to a genetic test because he
acknowledged parentage when he executed the Affidavit, and that he failed to prove that
he signed as a result of fraud, duress, or material mistake of fact. We agree with Mr. Faison
that the governing statutory law, as interpreted by a majority of the judges of the Court of
Appeals in Davis, 447 Md. at 302, entitles him to genetic testing for the purpose of pursuing
claims that he signed the Affidavit as a result of a material mistake of fact and the resulting
declaration of paternity should be set aside.
The governing statutes are contained in Subtitle 10 of Title 5 of the Family Law
Article (“FL”), titled “Paternity Proceedings.” An executed affidavit of parentage
constitutes a legal finding of paternity. FL § 5-1028(d)(1). An affiant may rescind the
affidavit within sixty days after execution. See id., § 5-1028(d)(1)(i) – (ii). After that, “an
executed affidavit of parentage may be challenged in court only on the basis of fraud,
duress, or material mistake of fact.” Id., § 5-1028(d)(2)(i). Everyone agrees, and the court
found, that neither Mother nor Mr. Faison rescinded the Affidavit within sixty days of its
execution. So, as the trial court explained, the Affidavit established Mr. Faison’s paternity
pursuant to § 5-1028, and Mr. Faison had the burden to show fraud, duress, or a mistake of
material fact if he wanted to rescind the Affidavit. Id., § 5-1028(d)(2)(ii). In addition, a
parent can seek to set aside the declaration of paternity “if a blood or genetic test done in
accordance with § 5-1029 of this subtitle establishes the exclusion of the individual named
as the father in the order.” Id., § 5-1038(a)(2).
7
Mr. Faison’s Answer disputed that he is Child’s father, and his Motion sought to
satisfy his burden of proving that he was mistaken in believing at the time he signed the
Affidavit that he was Child’s biological father. His answer didn’t allege that Mother
committed fraud, but that Mother later “informed him that he is not the father of the minor
child” and that at-home DNA tests confirmed this.
The question of an affiant parent’s right under the Family Law Article to genetic
testing for this purpose, and on this posture, came before the Court of Appeals in Davis,
447 Md. at 302. But although all of the opinions in Davis addressed this statutory question,
the case was resolved on res judicata grounds not present here, and the 3–1–3 vote to affirm
the underlying judgment veiled a four-vote majority interpreting the statute to entitle a
putative father, post-affidavit execution, to obtain a genetic test. On its posture, the Davis
concurrence-plus-dissent’s statutory analysis qualifies officially as dicta. Dicta or not, we
agree that the Davis dissent has analyzed the statute correctly, and we will follow its
analysis here. Accord Boone v. Youngbar, No. 465, September Term 2016 (issued Sept.
29, 2017), slip op. at 5–10 (adopting Davis’s concurrence-plus-dissent’s statutory analysis
of the relevant FL sections as “the controlling law of Maryland on this issue”).
In Davis, the Wicomico County Bureau of Support Enforcement (“Bureau”) filed a
Complaint for Child Support alleging that Mr. Davis was responsible for supporting twin
boys. Like Mr. Faison, Mr. Davis had executed affidavits of parentage when the boys were
born. Appearing pro se, Mr. Davis requested a paternity test and denied parentage of the
children, alleging that his signatures on the affidavits had been obtained through fraud or
8
misrepresentation. The trial judge disagreed, denied Mr. Davis’s request for a paternity
test, and ordered him to pay child support. The trial court based its decision on the affidavit
of parentage and the lack of evidence showing fraud, duress, or mistake of material fact.
Mr. Davis did not appeal that decision. Davis, 447 Md. at 304–05.
Two years later, with the assistance of counsel, Mr. Davis filed a second complaint
requesting a genetic test under FL § 5-1029 and, assuming that the test confirmed that he
was not the father, asking the court to set aside the declaration of paternity and order of
child support under FL § 5-1038. The circuit court granted summary judgment in the
Bureau’s favor, holding that Mr. Davis was not entitled to a genetic test because the statute
did not permit genetic testing for the purpose of challenging an affidavit of parentage, and
that he was precluded by res judicata from challenging the affidavits or pursuing his claim
for a genetic test. Mr. Davis appealed to this Court, and we affirmed. We concluded that
Mr. Davis’s claims were barred by res judicata, and we found no error on the trial court’s
part. 222 Md. App. 230 (2015). The Court of Appeals granted Mr. Davis’s petition for a
writ of certiorari. Davis v. Wicomico Cty. Bureau, 444 Md. 638 (2015).
The Court of Appeals ultimately affirmed the judgment. A three-judge plurality
agreed with our conclusions that res judicata barred Mr. Davis’s claims, and that in any
event, a person who has signed an affidavit of parentage does not have an automatic right
to blood or genetic testing pursuant to FL § 5-1028. A fourth judge concurred with the
plurality’s finding that res judicata barred the appeal, and thus formed the majority to
affirm. The concurring judge added, however, that but for the res judicata problem, she
9
would have joined the dissent’s “careful and thoughtful interpretation” of the statutes and
held that Mr. Davis was entitled to a genetic test, because it “would surely be the equitable
result.” Davis, 447 Md. at 336 (Adkins, J., concurring). A three-judge dissent then analyzed
the governing statutes, and concluded, both from the language and structure of the statute
and in light of the legislative history, that Mr. Davis was entitled to a genetic test:
This case involves construction of the statutes concerning
genetic tests to prove or disprove paternity—and the
relationship of those statutes to the statute providing for
affidavits of parentage. As always, statutes must be construed
in context. Lockshin v. Semsker, 412 Md. 257, 276, 987 A.2d
18 (2010) (“the plain language must be viewed within the
context of the statutory scheme to which it belongs”).
Accordingly, one must consider the statutory scheme in which
these provisions appear.
The provision that pertains to the affidavit of parentage is
located in Family Law Article, Title 5 (Children), Subtitle 10
(Paternity Proceedings), Part V (Hearing on Complaint).
***
The main provision for genetic tests also appears in Part V:
“On the motion of the [Child Support Enforcement
Administration of the Maryland Department of Human
Resources], a party to the proceeding, or on its own motion, the
court shall order the mother, child, and alleged father to
submit to blood or genetic tests to determine whether the
alleged father can be excluded as being the father of the
child.” § 5-1029(b) (emphasis added). This language is
mandatory: when a proper person or entity makes a proper
motion, the court must order the test.
It is in Part VI that a key provision, § 5-1038, appears. It
provides that a declaration of paternity is final except, as
pertinent here, “if a blood or genetic test done in accordance
with § 5-1029 ... establishes the exclusion of the individual
named as the father in the order.” § 5-1038(a)(2)(i)(2). It is
10
notable that such a challenge to a declaration of paternity is
subject to an exception: “a declaration of paternity may not
be modified or set aside if the individual named in the order
acknowledged paternity knowing he was not the
father.” § 5- 1038(a)(2)(ii). This suggests that an individual
who acknowledges paternity—e.g., by executing an affidavit
of parentage—without knowledge that he is not the father may
overturn a finding of paternity with the results of a genetic test.
In the context of this statutory structure, the role of an affidavit
of parentage becomes clear. The provision describing an
affidavit of parentage as constituting a “legal finding of
paternity,” § 5-1028, appears in Part V, which describes the
hearing on the complaint and procedures for proving or
disproving paternity. This placement indicates that an affidavit
of parentage serves to preempt the usual trial process: the
parties can either have a full bench trial, as described in
§§ 5- 1024 through 5-1027, or a party can short-circuit that
process by presenting an affidavit of parentage
under § 5- 1028. In essence, given its location in the statutory
scheme, § 5-1028 appears to be an alternative procedure to
establish legal paternity. Indeed, in this case, the Bureau’s
entire case consisted of submission of the affidavits of
parentage executed by Ms. Cook and Mr. Davis.
Either way, once the hearing is complete, if the court finds that
the alleged father is the father, then the court issues an order
under the provisions in Part VI. This order includes a
declaration of paternity under § 5-1032 and anything else
appropriate under that Part. That is, there are two ways to reach
a declaration of paternity under § 5-1032: a bench trial under
the first four sections of Part V or an affidavit of parentage
under § 5-1028, also in Part V. Both paths lead to the same
destination: a declaration of paternity under § 5-1032.
In this context, the role of § 5-1038 also becomes clear: by its
terms, § 5-1038 provides the grounds for modifying or setting
aside a “declaration of paternity in an order”—that is, a
declaration of paternity in an order under § 5-1032.
Because § 5-1029, which is referenced in § 5-1038, is located
in Part V (Hearing on the Complaint), and Part V describes
11
court procedure, it must be possible to request this test during
the court proceedings. Also, because § 5-1038 refers to
“modif[ying] or set[ting] aside” an order, it must be possible to
request this genetic test after the court issues the order, as this
Court has held. See Langston v. Riffe, 359 Md. 396, 754 A.2d
389 (2000) (allowing a genetic test nine years after the court
order).
It may seem strange that the standard in § 5-1038 for setting
aside a judicial order is so different from the standard in § 5-
1028 for setting aside an affidavit of parentage. After all, it is
possible for an alleged father to satisfy the standard in § 5-
1038—he signed the affidavit of parentage believing that he
was the father, but he would like a genetic test now that doubt
has arisen, and the genetic test shows that he is not the father—
even if he cannot meet the standard in § 5-1028 for rescission
of the affidavit—there was no fraud, duress, or material
mistake of fact. The alleged father might have honestly but
mistakenly believed he was the father without legally meeting
the standards of fraud, duress, or material mistake of fact.
Indeed, that may be this case: the alleged father’s
misunderstanding may have arisen because of
miscommunication, rather than intentional deception.
***
Because the goal of the legislation was to hold parents
responsible for their own children and to establish a connection
between parent and child, it seems entirely contrary to the
legislative intent to hold non-parents responsible for other
people’s children. See Walter v. Gunter, 367 Md. 386, 399
n.12, 788 A.2d 609 (2002) (“Our Legislature never stated that
the ‘decent support of children’ should be imposed upon those
who are found, conclusively, not to be the child’s parent ...”).
Denying a paternity test to a person who signed an affidavit of
parentage runs the risk of doing precisely the opposite of what
the General Assembly intended.
***
The bottom line is evident: an affidavit of parentage is not
meant to conclusively prove that which is false. Rather, an
affidavit of parentage is meant to correctly establish paternity
12
by a formal acknowledgement so that unwed fathers provide
financial, emotional, and social support to their biological
children. See Pamela C. Ovwigho, Catherine E. Born, &
Shafali Srivastava, Maryland’s Paternity Acknowledgment
Program: Participant Entries into the Public Child Support
and Welfare Systems, at 6, October 2002, available at
https://perma.cc/363W–8YUC. Thus, when an alleged father is
not the biological father of the children, using an affidavit of
parentage to establish paternity incorrectly over the protest of
the alleged father not only unfairly saddles an individual with
responsibility for children unrelated to that individual, but also
deprives the children of the connection with their biological
father that the affidavit of parentage was supposed to
encourage and protect. Such an interpretation seems contrary
to the purpose of the statute.
Hence, as the statutory text explains and the legislative history
confirms, when an alleged father signs an affidavit of
parentage on the basis of a genuine but incorrect belief that he
is the father of the children, and he later requests a genetic test
to show whether is in fact the father of the children, he is
entitled to one. Then, if the test conclusively shows that he is
not the father of the children, he no longer has the legal
responsibilities that a father must have.
Davis, 447 Md. at 342–49 (McDonald, J., dissenting) (emphasis added).
This case presents the identical issue without the res judicata wrinkle or the
analytical inversion in Boone.6 Unlike Mr. Davis, Mr. Faison appealed the trial court’s
6
In Boone, the mother sought genetic testing for the purpose of disproving the affidavit-
acknowledged paternity of the father, with whom she was litigating custody and visitation.
We affirmed the circuit court’s dismissal of the mother’s petition to disestablish paternity,
holding that FL § 5-1028(d) did not authorize her to seek genetic testing for the purpose of
seeking to prove that the father had signed the affidavit under a material mistake of fact.
Id., slip op. at 10–12. Put another way, the statute authorized testing to attempt to prove
one’s own mistake, not the mistake of another.
13
decision denying his motion for genetic testing. Unlike Ms. Boone, Mother is not
attempting to prove that someone else made a material mistake of fact—Mr. Faison is
trying to prove that he signed the Affidavit based on the mistaken belief that he was Child’s
father. The Affidavit begat a finding that Mr. Faison is the Child’s father, and that finding
remains in place until disproven. But as the Davis dissent explicated, that finding isn’t
immutable—the statute contemplates that a parent might sign an affidavit against a
genuinely mistaken belief of his parentage, and it allows Mr. Faison the opportunity to try
and establish that mistake in an appropriate (and likely conclusive either way) manner, and
have the Affidavit rescinded under § 5-1028 or the declaration of paternity set aside under
§ 5-1038. This is precisely the situation that the Davis dissent anticipated, where the father
may or may not be able to prove that he signed the affidavit as a result of fraud, duress, or
material mistake of fact, but may have had a good faith belief that he was the father that
testing can now resolve. Davis, 447 Md. at 345–46 (McDonald, J., dissenting) (“In such a
situation, the affidavit of parentage is not rescinded, but the judicial order declaring
paternity and requiring child support may be set aside if the genetic test excludes the
alleged father.”).
The trial court recognized properly that the signed Affidavit constituted a legal
finding of paternity. But when Mr. Faison requested a genetic test, the court should have
granted that request. Without the opportunity for a genetic test, the provisions of the Family
Law Article would place Mr. Faison in a complicated catch-22: he would be entitled to
rescind the Affidavit if he can prove fraud, duress, or material mistake of fact, or to attempt
14
to exclude himself as Child’s father, but would have no way to obtain the one form of
testing most likely to answer these questions. The Legislature did not intend to hold non-
parents responsible for other people’s children, Davis, 447 Md. at 348 (McDonald, J.,
dissenting), nor to encourage a court to avoid finding out the truth about a child’s parentage.
So “when an alleged father signs an affidavit of parentage on the basis of a genuine but
incorrect belief that he is the father of [a child], and he later requests a genetic test to show
whether [he] is in fact the father of [the child], he is entitled to one.” Davis, 447 Md. at 349
(McDonald, J., dissenting).
For the same reason, the circuit court erred when it required Mr. Faison first to
satisfy a best interest of the child analysis as a prerequisite to a genetic test:
[I]t’s probably useful for me to try to articulate what I think
I’m doing here this morning -- because I think it’s a fairly
narrow process. I am trying to determine whether it is in the
child’s best interest or not to override the presumption that is
created by the signature of this document which says at the top,
this is a legal document and constitutes a legal finding of
paternity, the presumption that he is this child’s father. What I
have to hear in order to override that presumption is what, if
any, evidence there is that would lead me to the conclusion that
it’s in the child’s best interest to do this testing. And ordinarily,
what that requires is some articulation of how it’s beneficial to
the child.
Typically people tell me that it would be beneficial for the child
to know who the child’s parents are, that’s fine, as long as there
is somebody who is the alleged other parent. And typically then
what I do is allow testing for the gentleman generally who is
alleged to be the parent, the father, and if that produces a
positive genetic test, we proceed from there. I don’t generally
get the evidence that’s required to make a determination about
the best interest of the child in a situation where there is no
15
other nominee, let’s say, for parent of the child. So maybe to
say it the other way, from my perspective having done a lot of
these cases, it is not in the child’s best interest generally to
remove one of the parents without there being some other
explanation.
***
The law says he’s the father, and so it becomes his job to
explain why it’s in the child’s best interest to have a parent
removed from the child’s life.
The child’s best interests play no role in the statutory question of whether a
declaration of paternity may be set aside. The question is whether Mr. Faison can establish
that he signed the affidavit of parentage subject to a mistake of material fact, FL § 5-
1028(d)(2), or whether he’s entitled to set the declaration of parentage aside, § 5-
1038(a)(2), either of which will depend on whether the blood or genetic test excludes him
as the father. FL § 5-1030(2)(i)(2); see also Langston v. Riffe, 359 Md. 396, 428, 435
(2000) (“[A]n examination of the best interests of the child has no place” in a court’s
determination to grant a putative father’s request for a genetic test).
Whether Mr. Faison can, after testing, meet his burden of proof remains to be seen,
and we express no views on whether he ultimately will succeed. He is, however, entitled
to a genetic test for the purpose of attempting to prove that he signed it pursuant to a mistake
of fact or that he is otherwise entitled to have his declaration of parentage set aside, and we
reverse the judgment of the circuit court and remand for further proceedings consistent
with this opinion.
16
JUDGMENT OF THE CIRCUIT
COURT FOR MONTGOMERY
COUNTY REVERSED AND CASE
REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT
WITH THIS OPINION. APPELLEE
TO PAY COSTS.
17