DocketNumber： No. 43
Citation Numbers： 426 Md. 670, 45 A.3d 243, 2012 WL 1862009, 2012 Md. LEXIS 292
Judges： Barbera, Rodowsky
Filed Date： 5/23/2012
Status： Precedential
Modified Date： 11/10/2024
This case calls upon us to delve once again into the issue of genetic testing to determine paternity. In particular we are asked to determine whether a man who claims to be the father of a child conceived while the mother was married to another man, but born after the mother and her husband divorced, has an unconditional right to genetic testing to determine whether he is the biological father. The question requires us to identify which of two statutory schemes dictates the outcome.
The Paternity Proceedings subtitle (“Paternity subtitle”), codified at Maryland Code (1999, 2006 Repl.Vol., 2010 Cum. Supp.), §§ 5-1001 through 5-1048 of the Family Law Article (FL), presumes that the mother’s husband at the time of conception is the father of that child, see FL § 5-1027(c)(l). Section 5-1029(b) requires a court to order blood testing “to determine whether the alleged father can be excluded as being the father of the child.”
I
In order to put into proper context the underlying facts and procedural history of this case, it is helpful first to review generally the two statutory schemes at issue. We begin with the Paternity subtitle of the Family Law Article.
Until 1963, the subject now addressed in the Paternity subtitle was covered under the heading of “Bastardy” or “Bastardy and Fornication.” Eagan v. Ayd, 313 Md. 265, 268, 545 A.2d 55, 56 (1988). Those laws served “to prevent the county from having to bear the full cost of supporting an illegitimate child ... [and] to punish fornication, and the laws were deemed criminal in nature.” Id. at 269, 545 A.2d at 56. The criminal bastardy laws were in effect when, in 1941, the General Assembly enacted former Article 12, § 17 of the Code. Id. That section was added “to give the court the benefit of a relatively new scientific tool — the use of blood tests to prove nonpaternity.” Id., 545 A.2d at 56-57 (emphasis added). The provision was “patently for the benefit of the defendant,” i.e., a man alleged by the State to be the child’s father. Id. at 270, 545 A.2d at 57. Under that provision, “ ‘[w]henever the defendant in bastardy proceedings denies that he is the father,’ ” then, “ ‘upon petition of the defendant, the court shall order that the complainant, her child and the defendant submit’ ” to blood testing. Id. (quoting former Article 12, § 17 of the Maryland Code) (emphasis in original).
The law underwent major change in 1963, when the General Assembly repealed the Bastardy and Fornication Article (former Article 12) “for the purpose of ‘entirely revising the laws of this State concerning bastardy and fornication and paternity proceedings; vesting in the several equity courts of this State jurisdiction to hear and determine all such paternity
The goals of the 1963 enactments were reflected in the report (hereafter “Commission Report”) of the Commission to Study Problems of Illegitimacy among the Recipients of Public Welfare Monies in the Program for Aid to Dependent Children (hereafter “Commission”). Id. at 272, 545 A.2d at 58. The Commission “concerned itself with bettering the plight of the illegitimate child,” and its “recommendations were made ‘with the hope that if adopted, illegitimacy will be curtailed and amelioration of the effects of illegitimacy on children and the community at large will result.’ ” Id. (quoting the Commission Report at 22). The legislative declaration to the enactment, codified in former Article 16, § 66A, announced the State’s “duty to ameliorate the deprived social and economic status of children born out of wedlock.” The declaration expressed three specific purposes for the legislation: (1) promoting the general welfare and best interests of children born out of wedlock; (2) imposing the obligations of parenthood on both parents; and (3) simplifying procedures. The legislative policy expressed in the current Paternity subtitle, nearly identical to the original declaration, is found in FL § 5-1002. The current section provides, in pertinent part:
“(a) In general. — The General Assembly finds that:
“(1) this State has a duty to improve the deprived social and economic status of children born out of wedlock; and
“(2) the policies and procedures in this subtitle are socially necessary and desirable.
“(b) Purpose. — The purpose of this subtitle is:
*675 “(1) to promote the general welfare and best interests of children born out of wedlock by securing for them, as nearly as practicable, the same rights to support, care, and education as children born in wedlock;
“(2) to impose on the mothers and fathers of children born out of wedlock the basic obligations and responsibilities of parenthood; and
“(3) to simplify the procedures for determining paternity, custody, guardianship, and responsibility for the support of children born out of wedlock.”
In 1976, the General Assembly again amended the “Paternity Proceedings” subtitle of Article 16 to “enhance effective recovery of child support payments” and “creat[e] ... the Division of Child Support Enforcement.” Eagan, 313 Md. at 272, 545 A.2d at 58. In 1982, the Paternity subtitle was further amended, in apparent response to technological advancements in blood testing. See Ch. 784 of the Acts of 1982. Previously, the putative father, by motion, could require the court to order, or the court, on its own motion, could order blood tests to determine exclusion from paternity. The 1982 amendment changed “putative father” to “a party to the proceedings.” Further, the results were admissible in evidence, not only if they excluded the alleged father, but also if they reflected at least a 97.3% probability of the alleged father’s paternity. Id. A subsequent amendment in 1984 “eliminate[d] the court’s discretion to reject a qualifying blood test.” Id.
In 1984, the Paternity subtitle of Article 16 “was transferred to the Family Law Article ... without substantive change,” id. at 274 n. 5, 545 A.2d at 58 n. 5, and codified at subtitle 10 (“Paternity Proceedings”) of Title 5 (“Children”). Subsequent amendments pertinent to the issue presented in this case were enacted in 1995 and 1997.
The 1995 amendment was the General Assembly’s response to a decision from this Court holding that a paternity judgment could only be set aside on the basis of “ ‘fraud, mistake, ... irregularity,’ or clerical error.” Evans v. Wilson, 382 Md.
The 1997 amendment, in turn, was the General Assembly’s response to the “Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the ‘Federal Act’),” which, “in an attempt to combat the increase in ‘out-of wedlock pregnancies,’ conditioned the receipt of continued federal assistance on certain federal standards.” Evans, 382 Md. at 634 n. 6, 856 A.2d at 691 n. 6 (citing Stubbs v. Colandrea, 154 Md.App. 673, 684, 686, 841 A.2d 361, 367-68 (2004)). The Federal Act required genetic testing in “certain contested cases” and required that states afford “[pjutative fathers ... a reasonable opportunity to initiate a paternity action” to establish paternity. Id. (citing Stubbs, 154 Md.App. at 687, 841 A.2d at 369). Maryland responded by adding subsection (c) to § 5-1002 of the Paternity subtitle of the Family Law Article. Section 5-1002(c) states: “Nothing in this subtitle may be construed to limit the right of a putative father to file a complaint to establish his paternity of a child.”
The current Paternity subtitle outlines the procedures “through which the state can establish paternity, and thus hold alleged fathers responsible for parental duties, such as child support. It is also the statute that allows alleged fathers to deny paternity.” In re Roberto d.B., 399 Md. 267, 275, 923 A.2d 115, 120 (2007). Generally, a complaint must be initiated before the child’s eighteenth birthday, FL § 5-1006, and must be accompanied by the consent of the State’s Attorney. FL § 5-1010(e). “At the trial, the burden is on the complainant to establish by a preponderance of the evidence that the alleged father is the father of the child.” FL § 5-1027(a).
The Estates and Trusts Article provides independent authority by which the court may make a paternity determination. The express purpose of the Estates and Trusts Article is “to simplify the administration of estates, to reduce the expenses of administration, to clarify the law governing estates of decedents, and to eliminate any provisions of prior law which are archaic.” ET § l-105(a). That same section further provides: “This article shall be liberally construed and
Pertinent here, we have interpreted ET §§ l-206(a) and 1-208 as providing the framework through which the court, in equity, may adjudicate paternity. Thomas, 263 Md. at 544, 283 A.2d at 781. Section l-206(a) provides that “[a] child born or conceived during a marriage is presumed to be the legitimate child of both spouses.” “A child born to parents who have not participated in a marriage ceremony with each other,” ET § l-208(a), is considered the child of the mother. ET § l-208(b) delineates four methods by which to establish the father-child relationship recognized by law: (1) a judicial determination under the “statutes relating to paternity proceedings”; (2) if the father acknowledges himself as the father, in writing; (3) if the father has “openly and notoriously recognized the child to be his child”; or (4) if the father “has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.”
We have held that, where a self-proclaimed biological father sued a mother and her estranged husband, seeking visitation with a child born, but not conceived, during the marriage of the mother and her husband, the complainant, as a party, may request blood testing to rebut the presumptions established by ET § l-206(a). Turner, 327 Md. at 113, 607 A.2d at 938-39. Establishing paternity under the Estates and Trusts Article, as an alternative to the Paternity subtitle is “ ‘more appropriate[ ]’ ” and “ ‘less traumatic.’ ” Id. Such a request is to be analyzed as a motion for mental or physical examination under the command of Rule 2-423. Id. That Rule requires a showing of “good cause” before the court will order an examination. Id. at 114, 607 A.2d at 939. We interpreted the “good cause” standard, in the context of paternity proceedings pursuant to the Estates and Trusts Article, to require a judicial determi
There is an interrelationship between the Estates and Trusts Article and the Paternity subtitle. FL § 5-1005(a), entitled “Legitimation proceedings,” provides that “[a]n equity court may determine the legitimacy of a child pursuant to § 1-208 of the Estates and Trusts Article.” FL § 5-1005 “does not limit paternity proceedings under [the Paternity] subtitle except after the legitimation of a child under this section.” FL § 5-1005(b). The Estates and Trusts Article also includes a reciprocal reference to the Paternity subtitle, as ET § 1-208(b) specifies, as one method of legitimation, that “a child born out of wedlock shall be considered the child of his father ... if the father ‘[h]as been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings.’ ” Taxiera v. Malkus, 320 Md. 471, 478-79, 578 A.2d 761, 764 (1990) (quoting ET § l-208(b)(l)) (alteration in original).
It is with this background in mind that we turn to the case before us.
II
Petitioner, Amy Mulligan, is the mother of Gracelyn Mulligan, born January 23, 2010. Respondent, William Corbett, strongly suspecting that he is the father of Gracelyn, initiated the case by filing in the Circuit Court for Frederick County a Complaint for Paternity, Child Support and Visitation Schedule. The present appeal stems from the circuit court’s order denying Respondent’s request for paternity testing and ordering that Petitioner’s former husband, Thomas Mulligan (hereafter Mr. Mulligan), who is not a party to this case, “is the legal father” of Gracelyn. The underlying facts, essentially undisputed, were developed at a hearing on Respondent’s request for testing.
Petitioner and Mr. Mulligan were married on March 26, 1999. Three children were born during their marriage, none of whom is Gracelyn. Difficulties arose several years into the
In late March 2009, Petitioner and Respondent, who had known one another from their youth, reacquainted, started dating, and developed a sexual relationship. According to Respondent, the couple “met as frequently as [their] schedules would allow,” they had discussed their mutual desire, and were attempting to conceive a child. The following month (April), the couple made concerted efforts to time their relations with Petitioner’s menstrual cycle. About a month after that meeting, Petitioner, who, by then had moved out of the family home and into her own apartment, informed Respondent that she was pregnant.
In August 2009, Petitioner moved with her three children to live with Respondent in Pennsylvania. Petitioner and Respondent’s joint living arrangement was short-lived. About one month after Petitioner’s move, Respondent demanded that she and her children vacate the home. Petitioner and her children moved out during the first half of September 2009, and, sometime during the same month, returned to live with Mr. Mulligan. On September 25, 2009, after Petitioner had testified before a hearing examiner that she and Mr. Mulligan had lived separate and apart, without sexual relations, since April
Gracelyn was born on January 23, 2010. Mr. Mulligan testified that, at his urging, Petitioner contacted Respondent to inform him of the birth, because “[Respondent] has a right.” Petitioner called Respondent on the evening of Gracelyn’s birth, and he visited her and the baby the following day. During the visit, Petitioner asked Respondent to sign the affidavit of parentage
In a letter dated February 3, 2010, Respondent, through counsel, informed Petitioner that he wished to have “legally recognized” that he is Gracelyn’s biological father and to “attain some of the rights, privileges and obligations of parenthood.” Respondent therefore desired “genetic DNA testing be undertaken to demonstrate ... Gracelyn’s lineage.” The letter explained that, “[assuming the child to be [Respondent’s], I would then like to enter into negotiations to establish a regular access schedule for my client with his daughter, and to similarly, establish appropriate child support under the Maryland Child Support Guidelines.” Petitioner did not respond to Respondent’s entreaties.
Petitioner responded with a Motion to Dismiss for Failure to State a Claim. As grounds for the motion, Petitioner asserted that Gracelyn was “the legal child of Thomas Mulligan” and “no showing of good cause of sufficient persuasive force to overcome the statutory presumption [of legitimacy in ET § l-206(a) ] ha[d] been made and thus [the circuit court] should not require a blood test to determine ‘paternity’ of a child living with her legal father in a stable home environment.” Respondent, in opposing dismissal, highlighted, among other points, that Gracelyn was conceived well after the Mulligans separated and last had sexual relations (as Petitioner had attested in her divorce action), and the child was born after their divorce. Consequently, the Family Law Article’s Paternity subtitle, applicable “to resolve disputes regarding paternity of children who are bom out-of-wedlock ” (i. e., FL § 5-1002) is the appropriate statutory scheme by which to determine Gracelyn’s paternity.
The circuit court denied Petitioner’s Motion to Dismiss and set for a hearing the issue of whether to order blood testing. At the time of the hearing on May 13, 2010, Gracelyn was
The circuit court announced its ruling on the record, concluding that the Estates and Trusts Article, not the Paternity subtitle, was the appropriate statute by which to determine Gracelyn’s paternity. The court, evidently relying on two cases from this Court, Kamp v. Department of Human Servs., 410 Md. 645, 980 A.2d 448 (2009), and Monroe v. Monroe, 329 Md. 758, 621 A.2d 898 (1993), reasoned that the Paternity subtitle only applied when paternity was, in the court’s words, “void,” and, in this matter, paternity was not void because Mr. Mulligan was Gracelyn’s presumed father under the Estates and Trusts Article. The court, applying the best interest standard employed in Monroe and Kamp, concluded that it was not in Gracelyn’s best interests to order blood testing. The trial court found, inter alia: “[T]his child has been in an intact family, has been in a family that this Court is satisfied provides her with stability”; and Gracelyn was “well cared for, well loved, well nourished, ... not just ... in a physical sense but in ... an emotional sense.” The court noted, among other things, that Petitioner’s relationship with Respondent “was very limited”; and Respondent had forced Petitioner out of the home they had shared in the early fall of 2009, when she was pregnant. The circuit court thereafter entered a written order dated May 26, 2010, denying Respondent’s request for paternity testing and ordering “that Thomas Mulligan is the legal father of the minor child, Gracelyn Mulligan.”
We granted certiorari, 420 Md. 463, 23 A.3d 895 (2011), to consider the following question: “Should the paternity of a child conceived during a marriage but born after divorce be determined under the Estates and Trusts Article or the Family Law Article?”
In analyzing the competing statutory schemes at issue, we do not write on a clean slate. Turner v. Whisted, 327 Md. 106, 607 A.2d 935, decided in 1992, though not the first case on the subject of paternity,
The petitioner Turner was involved in a sexual relationship with an unmarried woman. Id. at 109, 607 A.2d at 936. The woman, Kelly Whisted, became pregnant. Id. She married another man, Mr. Whisted, and gave birth to the child five months into the marriage. Id. Six months after the birth, Mr. and Mrs. Whisted separated, and Mrs. Whisted renewed her relationship with Turner. Id., 607 A.2d at 937. When that relationship ended eighteen months later, Turner, alleging that he was the biological father of the child, sued for visitation and sought a court-ordered blood test to establish his paternity. Id. at 110, 607 A.2d at 937. The circuit court denied the motion and granted summary judgment for the Whisteds. Id. The Court of Special Appeals agreed with the denial of the motion for blood testing, id. at 110-11, 607 A.2d
We noted preliminarily that Turner had not referenced the Paternity subtitle in his Complaint for Visitation or in his Motion for Blood Test; instead he invoked the equity court’s jurisdiction under the Estates and Trusts Article to determine paternity because the State’s Attorney had declined to consent to his action under the Paternity subtitle, as required by FL § 5-1010(e). Id. at 111, 607 A.2d at 937. We acknowledged that both the Estates and Trusts Article and the Family Law Article provide a course of action by which to establish paternity, as indicated by the “reciprocal references in the two articles.” Id. at 112, 607 A.2d at 938. And we concluded that Turner “quite properly” invoked the Estates and Trusts Article because he had alleged that the child whose paternity was at issue “was a child ‘born to parents who had not participated in a marriage ceremony with each other.’ ” Id. (quoting ET § 1-208). We then held that, when a child is presumed legitimate and “two men each acknowledge paternity of the same child,” then “an action to establish paternity is more appropriately brought under the Estates & Trusts Article” because that statutory scheme “presents the ‘more satisfactory’ and ‘less traumatic’ means of establishing paternity” when a child is born during a marriage. Id. at 113, 607 A.2d at 938 (quoting Thomas, 263 Md. at 544, 283 A.2d at 781; Dawson, 257 Md. at 314, 262 A.2d at 732). Finally, we recognized that a motion for blood testing under the Estates and Trusts Article was to be analyzed as a request for physical examination under Maryland Rule 2-423. Id., 607 A.2d at 939. We concluded that the existence of the presumption of legitimacy under the Estates and Trusts Article was not an absolute bar to Turner’s claim and, therefore, the circuit court, on remand, was to consider the child’s best interests before deciding whether to order blood testing. Id. at 117, 607 A.2d at 940.
One year later, in Monroe v. Monroe, 329 Md. 758, 621 A.2d 898 (1993), we applied the reasoning of Turner to hold that a mother, who was unmarried throughout the period from con
We then recognized that both Articles “are aimed at the legitimation of children born out of wedlock,” id. at 767, 621 A.2d at 902, and noted further that “[t]he purpose of legitima
One year after we decided Monroe, we considered another custody case, Sider v. Sider, 334 Md. 512, 516, 639 A.2d 1076, 1078 (1994), in which the mother, Ms. Sider, and the biological father (not Mr. Sider) jointly petitioned to establish paternity. Ms. Sider simultaneously and independently sought custody— in the context of the divorce proceedings Mr. Sider initiated— of the child born during the Siders’ marriage, less than two years before the divorce action. Id. at 515-17, 639 A.2d at 1077-78. Ms. Sider and the biological father had confirmed the child’s paternity through consensual, extrajudicial genetic testing. Id. at 516, 639 A.2d at 1078. The circuit court consolidated the two matters and, after that court ruled that paternity was evidently not at issue given the extrajudicial paternity test, Ms. Sider withdrew her motion for court-ordered blood testing. Id. at 517, 639 A.2d at 1079. The circuit court ultimately “ordered that [Mr. Sider] be ‘recognized as the natural father of [the child]’ and denied the
Based on our then-recent decision in Monroe, we noted that, although generally we need not establish paternity before awarding custody, the scenario presented was “unique” and required such a determination. Id. at 525-26, 639 A.2d at 1083. We further noted that, because “[t]he underlying facts in this case conclusively establish that [the alleged biological father] is [the child’s] biological father ... it appears that no further proceedings with regard to paternity were necessary.” Id. at 526, 639 A.2d at 1083 (footnote omitted). We then turned to the question of “whether the trial court had the authority to deny the paternity petition jointly filed by [the child’s] biological mother, and [the child’s] biological father, when there was no marital integrity to protect.” Id. In deciding that question, we relied on Turner for the proposition that “a trial court must consider the best interests of a child before granting a putative father’s request for a blood test” and held that the trial court should have considered the child’s best interests before deciding the paternity petition, id. at 527, 639 A.2d at 1083, even though the parties did not dispute the biological paternity of the child. We ultimately concluded that, had the circuit court conducted the required best interest analysis, it would have granted the petition because of the various interests involved, including the child’s best interest, the biological father’s interest, and the lack of family integrity to protect. Id. at 528-29, 639 A.2d at 1084.
The cases we have discussed so far preceded the General Assembly’s amendments to the Paternity subtitle in 1995 and 1997, which we discussed earlier, and our 2000 decision in Langston v. Riffe, supra, about which we say more later. We analyzed those subsequent occurrences in Evans, 382 Md. 614, 856 A.2d 679.
Evans “claimed to be the biological father of [the child], who was conceived and born while [the mother] was married to another man.” Id. at 617, 856 A.2d at 681. Evans sought mandatory blood testing under the Paternity subtitle. Id. at
Evans claimed that the legal landscape had changed in the years since we decided Turner. Id. at 629, 856 A.2d at 688. We agreed that the landscape indeed had changed, but the changes, though significant, “do not apply to individuals in his position.” Id. We said: “It is true that since the Turner decision, the General Assembly and this Court have changed the legal landscape of ‘Paternity Proceedings’ governed by the Family Law Article.” Id. at 630, 856 A.2d at 688. We noted that the 1995 amendment to FL § 5-1038 served “to provide an alternative way for an adjudged father to challenge a judgment of paternity,” by “permit[ting] a paternity judgment to be set aside at any time if blood or genetic testing establishes that the named father is not the biological father of the child.” Id. at 630-31, 856 A.2d at 689.
We noted too that our later decision in Langston held that the 1995 amendment applied retroactively to permit “men who had been declared fathers by the court before that date[,] ... pursuant to Section 5-1029, to reopen paternity proceedings for blood or genetic testing.” Id. at 631, 856 A.2d at 689 (citing Langston, 359 Md. at 437, 754 A.2d at 411). Furthermore, “blood or genetic testing under [FL] Section 5-1029 did not depend on any analysis of ‘the best interests of the child’ because, when an individual challenges a declaration of paternity in which he is named the father and then moves for a blood or genetic test, the trial court must grant the request.” Id. at 632, 856 A.2d at 689-90 (citing Langston, 359 Md. at 435, 754 A.2d at 410) (emphasis in original). We considered as well that,
“[i]n 1997, the General Assembly ... amended the ‘Paternity Proceedings’ subtitle of the Family Law Article, adding Section 5-1002(c), which states: ‘Nothing in this subtitle may be construed to limit the right of a putative father to*692 file a complaint to establish his paternity of a child.’ The Legislature added this language to Section 5-1002 for the purpose of ‘clarifying that a putative father may file a paternity action.’ 1997 Maryland Laws, ch. 609----
“The coalescence of Langston and the 1995 and 1997 amendments to the ‘Paternity Proceedings’ of the Family Law Article brings into question whether our holding in Turner has been invalidated so that the mandatory blood or genetic testing of Section 5-1029 is now available to challenge the paternity of a child born during an intact marriage.”
Id. at 632-33, 856 A.2d at 690 (citation omitted).
We concluded, however, that these “expanded rights” of “ ‘putative fathers’ ... to challenge paternity declarations ... do not apply to individuals in [Evans’s] position,” i.e., individuals who are not “putative fathers.” Id. at 629, 856 A.2d at 688. We turned to the Court of Special Appeals’ opinion in Stubbs, 154 Md.App. 673, 841 A.2d 361, which had been issued only months earlier. Stubbs sought a blood test to prove that he was the biological father of a child conceived and born during the marriage of the mother and her husband. The intermediate court explained:
“Although ‘putative father’ is not a defined term in the Paternity Act, the quoted term has a settled legal meaning. Black’s Law Dictionary defines ‘putative father’ to mean ‘[t]he alleged biological father of a child born out of wedlock.’
“That the dictionary meaning of ‘putative father’ was intended by the General Assembly when using that term in [Section 5-1002(c) ] is confirmed by construing subsection (c) compatibly with the balance of [Section 5-1002] to which subsection (c) was added.”
Evans, 382 Md. at 633, 856 A.2d at 690-91 (quoting Stubbs, 154 Md.App. at 683-84, 841 A.2d at 367) (alterations in original; citation omitted). Stubbs concluded that the child “is not an illegitimate child, and Mr. Stubbs is not a putative father.” 154 Md.App. at 688, 841 A.2d at 369. In Evans, we also noted
“ ‘Nothing in the text of [Section 5-1002(c) ], or in its Maryland or federal legislative histories, indicates that the General Assembly intended to alter the Turner v. Whisted test for determining whether a blood test should be ordered under the circumstances presented here, or that the Federal Government intended to require, under the circumstances presented here, a mandatory blood test similar to that provided by [Section 5-1029].’ ”
Id. at 635, 856 A.2d at 691-92 (quoting Stubbs, 154 Md.App. at 688, 841 A.2d at 369-70) (alterations in original).
We agreed in Evans with the reasoning of Stubbs and applied it to the facts before us in Evans to hold that “the effect of Section 5-1002(c) does not reach the situation before us, where Evans seeks to establish paternity of a child born during a marriage.” 382 Md. at 635, 856 A.2d at 692. We concluded, therefore, that “Turner ... remains the controlling precedent for cases such as this, where two men (one the husband of the mother and the other a stranger to the marriage) acknowledge the paternity of a child born during a marriage.” Id. at 636, 856 A.2d at 692.
Kamp v. Department of Human Servs., 410 Md. 645, 980 A.2d 448 (2009), was an action brought by the Administration to increase support from Kamp for a child who was conceived and born during the marriage of the mother and Kamp. The mother and Kamp divorced over seven years after the child was born. A blood test, ordered by the circuit court, excluded Kamp from paternity, and the circuit court terminated his support obligations. Applying the Turner v. Whisted, 327 Md.
Ashley v. Mattingly, 176 Md.App. 38, 932 A.2d 757 (2007), is similar. In that case, the child was born when the mother and her husband had been married for eight months. The couple divorced, and the former husband subsequently sought and obtained blood testing in order to terminate his support obligations. That testing excluded him from paternity. Because the Court of Special Appeals could not “say that [the child] was necessarily conceived during the marriage,” id. at 55, 932 A.2d at 767, it applied the presumption in ET § 1-206(a), which is based, alternatively, on birth during marriage. Accordingly, the court applied the Evans, Turner, and Stubbs line of cases and held that the circuit court erred in failing to recognize that it had discretion, under a best interests of the child standard, to deny blood testing.
There is considerable daylight between the issue presented in the instant matter and that in Langston v. Riffe, 359 Md. 396, 754 A.2d 389 (2000). There, this Court said, “We hold that the provisions of FL § 5-1029 are mandatory once a party to any paternity proceeding moves for a blood or genetic test.” Id. at 435, 754 A.2d at 410. Langston held that FL § 5-1038 not only permitted an enrolled judgment of paternity to be set aside based on a blood test that excluded the putative father, but that the provisions of that section were retroactive. Langston involved three cases in each of which the mother
In sum, none of the Maryland appellate cases have involved a claim of paternity by a man who was never the husband of the mother, a child who was conceived during the marriage of the mother and her former husband, birth of the child after their divorce, and an assertion by the mother and her former husband of the best interest of the child in opposition to blood testing requested by the paternity claimant. In resolving this issue here, we are mindful that the language used in the discussions in the cases reviewed above were written in a particular factual context and not necessarily to be extrapolated to other contexts.
IV
In the instant matter, the heart of the rationale by the Court of Special Appeals is:
“The present case is distinguishable from the above cases because here, the child was not born during a marriage. Gracelyn was conceived when Mr. and Mrs. Mulligan were married, albeit separated, but she was born after they were divorced.”
Corbett, 198 Md.App. at 58-59, 16 A.3d at 244. Further, that court said:
“The General Assembly, however, has provided that a ‘putative father’ of a child born out of wedlock has the right to bring a paternity action under the Family Law Article.”
Id. at 59, 16 A.3d at 245. The court then concluded that “because Gracelyn was born out of wedlock, the Family Law Article was the proper statutory provision to address Mr. Corbett’s request for genetic testing to determine Gracelyn’s paternity.” Id. at 60, 16 A.3d at 245. This holding is predi
Equating wedlock with matrimony, the court seems to have construed “born out of wedlock” literally and thereby failed to recognize that the phrase, when applied to a child, is a euphemism for an illegitimate child or a bastard. Ballentine’s Law Dictionary (3d ed.1969) defines “born out of wedlock” to mean “[b]orn to an unmarried female; born to a married female but begotten during the continuance of the marriage status by one other than her husband.”
In J.A.S. v. Bushelman, 342 S.W.3d 850 (Ky.2011), the court explained the term as follows:
“Historically, the phrase ‘child born out of wedlock’ is not a term of art, and seems to have come into common usage as a more acceptable modern substitute for ‘bastard,’ which over the years acquired the baggage of unrelated connotations. ‘Child born out of wedlock,’ like the word ‘bastard,’ has been used interchangeably with the term ‘illegitimate child.’ As shown below in Part Y of this opinion, all three terms have been used historically to refer to a child whose biological parents were not married to each other, as well as a child whose mother was unmarried.”
Id. at 856 n. 5. And see Lathan v. Edwards, 121 F.2d 183, 185 (5th Cir.1941) (“In common parlance, illegitimate child, ‘natural child’ and ‘bastard’ are interchangeable terms connoting a child born out of wedlock.”); Sweet v. Hamilothoris, 84 Cal. App. 775, 258 P. 652, 655 (1927) (“A child born out of wedlock is an illegitimate child”).
Lewis v. Schneider, 890 P.2d 148 (Colo.App.1994), involved the interpretation of a descent and distribution statute which provided that “ ‘a person bom out of wedlock is a child of the mother.’ ” Id. at 149 (emphasis in original). After concluding that no Colorado cases had construed the terminology, the court said:
“Other jurisdictions have interpreted the phrase to refer both to a child born to an unmarried woman and also to one born to a married woman but having a father other than the*697 mother’s husband. Estey v. Mawdsley, 3 Conn.Cir.Ct. 491, 217 A.2d 493 (1966); Wilkins v. Georgia Department of Human Resources, 255 Ga. 230, 337 S.E.2d 20 (1985); Johnson v. Studley-Preston, 119 Idaho 1055, 812 P.2d 1216 (1991); Pursley v. Hisch, 119 IndApp. 232, 85 N.E.2d 270 (1949); Smith v. Robbins, 91 Mich.App. 284, 283 N.W.2d 725 (1979); Martin v. Lane, 57 Misc.2d 4, 291 N.Y.S.2d 135 (N.Y.Fam.Ct.1968), rev’d sub nom. on other grounds, Mannain v. Lay, 33 A.D.2d 1024, 308 N.Y.S.2d 248 (1968[1970]), aff'd, 27 N.Y.2d 690, 262 N.E.2d 216, 314 N.Y.S.2d 9 (1970); In re Legitimation of Locklear by Jones, 314 N.C. 412, 334 S.E.2d 46 (1985); State v. Coliton, 73 N.D. 582, 17 N.W.2d 546 (1945).”
Id. at 149-50.
The Court of Special Appeals cited no authority, and we know of none, for the proposition that a child conceived during a marriage but born after a divorce is a child born out of wedlock. Parents who divorce during the pregnancy of the wife do not, by the divorce alone, delegitimate their child. An English work, W. Hooper, The Law of Illegitimacy (1911) (Hooper), states that “if the efficient act of sexual intercourse falls within the marriage bond, legitimacy is presumed whether that bond continues or ceased as of the date of birth.” Hooper at 154.
Judge Roszel Thomsen’s opinion in Metzger v. S. S. Kirsten Torm, 245 F.Supp. 227 (D.Md.1965), bears on the divorce aspect of the problem before us. That was an admiralty case in which the court concluded that the libelant, the widow of a deceased stevedore, had proved that her husband’s death was caused by unseaworthiness. The libelant had married the stevedore in July 1958. From April 1949 until August 1956, she had been married to one Poling. That marriage ended in divorce. Libelant’s son, Roland, was born while she was married to Poling and another son, Harry, was conceived while she was married to Poling, but born after the divorce. The libelant claimed that both children were the children of the stevedore. Judge Thomsen held that the children must be considered the children of Poling and that they were not
V
The respondent in this case, William Corbett, contends that he is the putative father of a child born out of wedlock, Gracelyn. The determination that he seeks, in the terminology of Hooper at 152, is “adulterine” bastardy. Hooper’s work on illegitimacy proposes the following as Rule I:
“A bastard is a person:—
“(a) Who is the child of an unmarried woman, a woman unmarried at the date of conception and birth of the child, and during the intervening period;
“(b) Who though conceived or born in wedlock has been proved by judicial process not to be the child of the husband.”
Where the child is born to a mother who is unmarried at conception and birth and during the intervening period, there is no presumption of legitimacy. In cases of that type, prior to 1997, the Administration or the mother could require blood testing as a sword, to prove the paternity of the putative father, and the putative father could require blood testing as a shield “to determine whether [he] can be excluded as being the father of the child.” FL § 5-1029(b). Langston, 359 Md. 396, 754 A.2d 389, was concerned with children born to mothers who had never married during any relevant period, and consequently presented no presumption of legitimacy. Thus, we said, in that context, that there was no best interests analysis before ordering blood tests. When FL § 5-1002(c) was added in 1997, it furnished a “putative father” with a sword, namely, to require blood testing under FL § 5-1029(b)
Where a third party to a marriage relationship seeks to use blood testing as a sword in order to prove his paternity of a child conceived during the marriage of the mother and her husband, it cannot be said, because of the presumption of legitimacy based on the time of conception, that the child was born out of wedlock, unless and until the presumption of legitimacy is overcome. Merely claiming to be the father of a child born out of wedlock, where the child was conceived during a marriage, does not overcome the presumption. In order to overcome the presumption, there must be proof presented within the framework of the rules set forth in FL § 5-1027(c)(2), (3), and (4) which read as follows:
“(2) The presumption set forth in this subsection may be rebutted by the testimony of a person other than the mother or her husband.
“(3) If the court determines that the presumption set forth in this subsection has been rebutted by testimony of a person other than the mother or her husband, it is not necessary to establish nonaccess of the husband to rebut the presumption set forth in this subsection.
“(4) If the court determines that the presumption set forth in this subsection has been rebutted by testimony of a person other than the mother or her husband, both the mother and her husband are competent to testify as to the nonaccess of the husband at the time of conception.”
If a self-proclaimed father seeks blood testing in order to delegitimate a presumptively legitimate child, he must first show that blood testing is in the best interests of the child under the Tueker-Evans line of cases reviewed above. Unless and until the presumption of legitimacy is rebutted, a self-proclaimed father’s application for a blood test relates to a legitimate child, ie., one born in wedlock, and the paramour is not a putative father under FL § 5-1002(c). So long as the presumption of legitimacy stands, the request for a
Obviously, the best interests of the child issue must be raised, in order to have it decided, when a paramour seeks to prove his paternity of a presumptively legitimate child by requesting blood tests. Cf. Toft v. Nevada ex rel Pimentel, 108 Md.App. 206, 671 A.2d 99 (1996) (mother of child conceived during marriage, while mother and husband living apart, brought paternity action against paramour for child support and obtained confirmatory blood testing, without express best interests analysis).
Conclusion
For all the foregoing reasons, we hold that the circuit court did not err in performing a best interests of the child analysis when ruling on the Respondent’s request for blood testing of a child conceived during marriage, where the mother and the presumptive father raised the best interests of the child issue. Accordingly, we shall vacate the judgment of the Court of Special Appeals and remand to that court for consideration of the other issues raised by the Respondent.
JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED AND CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
COSTS TO BE PAID BY RESPONDENT.
BARBERA and RAKER, JJ., Dissent.
. We shall use the terms "blood testing,” "genetic testing,” and "paternity testing” interchangeably.
. The 1963 legislative overhaul nevertheless "carried forward many of the substantive provisions of old Article 12” and left intact the State’s Attorney’s investigative and enforcement authority. Eagan v. Ayd, 313 Md. 265, 271, 545 A.2d 55, 57 (1988).
. FL § 5-1029, "Blood or genetic tests,” provides:
“(a) Requests and orders or tests. — (1) The [Child Support Enforcement] Administration may request the mother, child, and alleged father to submit to blood or genetic tests.
"(2) If the mother, child, or alleged father fails to comply with the request of the Administration, the Administration may apply to the circuit court for an order that directs the individual to submit to the tests.
"(b) In general. — On the motion of the Administration, 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.”
. When Petitioner was questioned during the May 2010 hearing in the instant matter about the inconsistency between her sworn testimony during the divorce proceedings that she had been separated uninterruptedly since April 2008 and the assertion that Mr. Mulligan might be Gracelyn’s biological father, Petitioner exercised her Fifth Amendment rights.
. The import of an "affidavit of parentage” is delineated in FL § 5-1028. That section provides:
“(a) In general. — An unmarried father and mother shall be provided an opportunity to execute an affidavit of parentage in the manner provided under § 4-208 of the Health-General Article.
“(c) Requirements for completion. — (1) The completed affidavit of parentage form shall contain:
"(i) in ten point boldface type a statement that the affidavit is a legal document and constitutes a legal finding of paternity;
"(ii) the full name and place and date of birth of the child;
"(iii) the full name of the attesting father of the child;
"(iv) the full name of the attesting mother of the child;
"(v) the signatures of the father and the mother of the child attesting, under penalty of perjury, that the information provided on the affidavit is true and correct;
“(vi) a statement by the mother consenting to the assertion of paternity and acknowledging that her cosignatory is the only possible father;
"(vii) a statement by the father that he is the natural father of the child; and
"(viii) the Social Security numbers provided by each of the parents.
"(d) Execution constitutes legal finding of paternity. — (1) An executed affidavit of parentage constitutes a legal finding of paternity, subject to the right of any signatory to rescind the affidavit:
“(i) in writing within 60 days after execution of the affidavit; or
“(ii) in a judicial proceeding relating to the child:
"1. in which the signatory is a party; and
*682 "2. that occurs before the expiration of the 60-day period.”
. Gracelyn's birth certificate also was not entered into evidence. Petitioner, however, included a copy of the birth certificate in her reply brief. The certificate indicates that Gracelyn’s father is "Thomas Gerard Mulligan, Jr.” Respondent has not moved to strike the birth certificate, as not properly part of the record on appeal, which indeed it is not. See Scapa Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 500 n. 1, 16 A.3d 159, 161 n. 1 (2011); see also Md. Rule 8-413. We shall not consider the birth certificate, or, for that matter, the affidavit of Mr. Mulligan, appended to Petitioner’s brief, that he and Petitioner remarried on July 21, 2011.
. The three issues Respondent presented to the Court of Special Appeals were: (1)(A) Whether a child conceived during marriage but born after separation was bom "out of wedlock" and therefore entitled to blood testing to determine paternity; (B) if testing was not mandatory, whether the trial court erred under the best interests test by not ordering blood testing; (2) whether the trial court erred by considering the affidavit of paternity when it was not introduced into evidence and when it established that the Mulligans had committed perjury; and (3) whether the trial court's denial of Respondent’s request for blood testing denied his due process rights to establish parenthood. Corbett v. Mulligan, 198 Md.App. 38, 41, 16 A.3d 233, 234 (2011). All that is before us is the first of those questions.
. We allude here to Thomas v. Solis, 263 Md. 536, 283 A.2d 777 (1971). At the time we decided that case in 1971, the paternity law did not include the provision it now does, in FL § 5-1002(c), granting putative fathers the right to establish paternity. As we discussed in Part I, the thrust of the paternity statute at the time of Thomas was to grant mothers of children born out of wedlock and the Child Support Enforcement Administration the right to establish the paternity of putative fathers for purposes of securing child support. Indeed, we evidently were unsure when we decided Thomas whether the paternity statute authorized a putative father to attempt to establish his paternity. We wrote: “We do not find it necessary, in the case at bar, to broaden the application of [former] Article 16, [the then-Paternity statute] ... were it of legal accomplishment, so as to provide within its framework a provision for a father to obtain a filiation declaration.” Id. at 543-44, 283 A.2d at 781 (emphasis added). We held "that a reasonable construction of Article 93, Sec. 1-208 [now, ET § 1-208] achieves that purpose and we think with a more satisfactory and less traumatic' effect than a proceeding under Article 16, Sec. 66, were one available thereunder." Id. at 544, 283 A.2d at 781 (emphasis added).
. In Monroe, 329 Md. 758, 621 A.2d 898 (1993), the mother, Ms. Monroe, conceived the child after she had been dating Mr. Monroe for a short period of time. Id. at 760, 621 A.2d at 899. Mr. Monroe was present when the child was born and had his name placed on the birth certificate, and the Monroes lived together, with the baby, for the next two-and-a-half years before they married. Id. at 760-61, 621 A.2d at 899.
When the Monroes ultimately parted, within the separation and custody proceedings, Ms. Monroe sought blood testing to prove that Mr. Monroe was not the child’s biological father. Id. at 762, 621 A.2d at 900. The circuit court granted the request and the results excluded Mr. Monroe as the father. Id. The circuit court then admitted those results into evidence, found that neither party was unfit, "found 'as a matter of law,’ that exceptional circumstances did not exist,” and ordered that Ms. Monroe be granted temporary custody of the child. Id. at 762-63, 621 A.2d at 900.
. Alternatively, this Court held that the divorced husband was equitably estopped from denying paternity. Kamp, 410 Md. at 672-78, 980 A.2d at 464-68.