Evans v. Wilson

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Brett Evans v. Trina Wilson, No. 123, September Term, 2003. [Family Law Paternity Proceedings Under the Estates & Trusts Article and Family Law Article, held; where a man brings a claim, alleging to be the natural father of a child born to a woman while she is married to another man, the trial court must consider the child s best interests before orderin g gene tic testing to estab lish pate rnity.] [Constitutional Law, he ld; an alleged biological fa ther has no constitutiona lly protected liberty in develop ing a relations hip with a child who was born while the mother was married to another man.] IN THE COURT OF APPEALS OF MARYLAND No. 123 September Term, 2003 BRETT EVANS v TRINA WILSON Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Raker, J., disse nts Filed: August 24, 2004 Brett Evans appeals the judgment of the Circ uit C ourt for B altim ore C ity, dismissing his complaints for orders of visitation and to determin e paternity of Kendi Ateah Ja Far, the daughter of Trina Wilson. Evans claims to be the biological father of Kendi, who was conceived and born while Wilson was married to anoth er man , Aska hie Ha rris. The Circ uit Court ruled that Evans had not overcome the statutorily imposed presumption that Kendi was the legitimate ch ild of Wilso n and H arris and that ordering Kendi to undergo genetic testing was not in the child s best interests. We agree with the Circuit Court s conclusion and, for the reasons discussed herein, shall affirm. I. Background A. Facts Evans first met Wilson in 1997 when he began working for Wilson s employer, the Baltimore Prevention Coalition. Evans started dating Wilson after he had worked at the Coalition for approximately two months. During the relationship, Wilson became pregnant and later terminated the pregnancy. Evans and Wilson broke up sometime between 1998 and 1999. After her break-up with Evans, in the fall of 1999, Wilson was introduced to Harris. Soon thereafter, the two began a serious dating relationship that led to an eventual marriage proposal by Harris. On October 7, 2000, W ilson and H arris participated in a Mu slim wedding ceremony performed by James Muhammed, a Muslim minister. Although Wilson and Har ris ha d not acq uired a M arylan d ma rriag e lice nse b efor e the cere mon y, they entered into a marriage contract. Under the contract, Wilson and Harris agreed to various terms governing their marriage relationship, including that they would have at least one child and that the child would be raised Muslim. Wilson and Harris lived together after the wedding in Wilson s mother s house pursuant to a lease agreement that they had signed in October of 2000. When Wilson and Harris were experiencing problems in their new marriage during the winter of 2000 and 2001, Wilson had a chance encounter with Evans. Several weeks later, in February or March of 2001, Wilson visited Evans apartment and had sexual intercourse with him. Wilson stated that this was the only time she had intercourse with Evans while ma rried to Har ris. Evans tes tified, however, that he and Wilson had sexual intercourse on more than one occasion, the last occurring in April of 2002. Wilson continued to live with Harris while seeing Evans. In fact, around the time of Wilson s affair with Evans, Wilson and Harris began trying to conceive a baby. Then, in May of 2001, Wilson learned that she was pregnant. She estimated that, based on her month ly cycle, the d ate of c oncep tion wa s appro ximate ly April 22 , 2001. Wilson and Harris testified that, during and after the pregnancy, they believed that Harris was the father. Wilson stated that Harris assisted her during the pregnancy by staying home with her during the day because she was nauseous, by shopping with her f or the bab y, and by helping to arrange the nurse ry. Although Harris did not attend Wilson s baby shower in November of 2001 because he thought it was a girl thing, his friends, believing that Harris w as the fa ther, org anized a party fo r him to c elebrate the imm inent bir th. -2- Evans testified, how ever, that, during W ilson s pregnancy, he was led to believe that he was the father of Wilson s child. According to Evans, Wilson told him that she was pregnant with his child. Evans stated that he spent numerous nights at Wilson s home after learning of the pregnancy and that he helped Wilson prepare for the birth by painting and setting up the baby s room. Evans stated that, eve n though he spent n ights at Wilson s home, he did not realize th at she w as marr ied dur ing the p regnan cy. He testified that he bought baby clothes and attended a baby shower for Wilson in November of 2001. Wilson gave birth to Kend i on January 19, 2002 . On that da y, Harris was in Virginia on business, so he could not attend the birth eve n though he had pla nned to do so. While at the hospital following the birth, Wilson was approach ed about c ompleting a birth certifica te for Kendi. She was told that, because she was the only parent pre sent, she cou ld only fill out her portion of the application, and the father, at some later time, would have to complete an affidavit of parentage to be n amed as th e father on Kendi s b irth certificate. W hen Ha rris returned from his trip, he took Wilson and Kendi home from the hospital. Harris did not complete the affidavit of parentage at the hospital bec ause he w as in a rush to take Wilson and Kendi hom e and was no t aware of the birth certificate proc edures. Several mon ths later, on November 28, 2002, Harris completed the affidavit of parentage; Kendi s birth certificate, issued subsequently, names Harris as the father. According to Wilson, several weeks after arriving home, she prepared and mailed birth announcements that identified Harris as Kendi s father. -3- Evans was also out of town on January 19 and did not attend Kendi s birth; however, Wilson called Evans parents, who visited Kendi in the hospital that day. Evans testified that he visited K endi three d ays after Wilso n arrived ho me from the hospital. Evans claimed that, after the birth, Wilson continued to suggest to Evans that he was Kendi s father. For instance, Evans received a card from Wilson congratulating him and wishing him, Happy Parenting. The card stated: When we met . . . I never would have thought that we w ould have created a life together. Now here we are more than 5 yrs. later the parents of a beautifu l baby girl. Wilso n, while at the hospital, also prepare d a birth announcement that identified E vans as the father of K endi, but, according to Wilson, never sent them to family an d friend s. When Kendi was nearly one month old, Wilson sent Evans a Valentine s Day card that stated, Happ y Valentine s Day, Daddy, and For you Daddy from your sunshine. A birthday card later sent to Evans from Wilson showed pictures of Kendi and said: It s Kendi Brina Ja Far, my daddy and me. I love you. Happy Birthday Dadd y. Both the V alentine s D ay and birthda y cards referred to Kendi by using the name Brina, a hybrid of Evans and Wilson s first names. According to Wilson, all of this written correspondence with Evans after Kendi s birth was part of a sick game that she had devised because of the guilt she felt over terminating the pregnancy when she and Evans were dating. Wilson stated that she and Evans played out this game to address some of the unresolved issues that lingered after their break-up. Wilson said that she h ad used th e name Brina in the cards because that was the name that -4- she and Evans had created during her first pregnancy. She also testified that Evans knew she was p retendin g whe never s he sug gested that he w as Ken di s fath er. Evans has not seen Kendi since she was six weeks old. During the first few weeks of Kend i s life, E vans v isited K endi se veral tim es at W ilson s h ome. Evans m other and father also have visited Kendi o n a numb er of occa sions. Eva ns has not p rovided ch ild support to Kendi other than purchasing approximately $80 worth of baby supplies throughout 2002. Harris, on the other hand, is the only man that Kendi has kn own a s a fathe r. She calls him Dad dy, and he pa rticipates in many of the routine tasks involved in parenting, such as caring for Kendi when she is sick and h elping pay fo r her daycare, fo od, and clo thes. Harris testified that he spends time with her every day after work, takes her to the movies occasionally, and watches television with her. He, Wilson, and Kendi eat together and, on weekends, they play games and visit the park or zoo. Harris believes that Kendi is attached to him because, when he has to leave her, she often becomes very upset and cries. B. Procedural History On December 2, 2002, Ev ans filed in th e Circuit Court for Baltimore City a Complaint for Order of Visitation in which he alleged that he was Kendi s father and requested a specific schedule of visitation. Wilson answered the Complaint on January 24, 2003 and denied that Evans was K endi s father. Then, on June 2 3, 2003, E vans filed a Comp laint to Determine Paternity, alleging that he had engaged in a sexual relationship with Wilson that -5- lasted until March 2001 and that Wilson had become pregnant in that month. Evans also requested that the court order the parties and Kendi to submit to blood or genetic testing for the purpose of establishing Kendi s paternity. Wilson filed an answer to Evans complaint and again denied that Evans was Kendi s father. She further claimed that, instead, Kendi was the child of Harris to whom Wilson was married at the time of the Child s conception and birth. On August 15, 2003, Judge Marcella A. Holland held a hearing to consider whether to order paternity testing or visitation. After hearing the testimony of various witnesses, including Evans, Wilson, and Harris, Judge Holland rejected Evans claims. She reasoned that, because Ken di was born w hile her mother was married to Harris, she is presumed by law to be the married couple s child. Therefo re, in Judge H olland s view , to succeed on his claim, Evans had to overcom e that presum ption and d emonstra te that a patern ity test would be in the best interests of the child. She determined that Evans failed to overcome the presumption because he had not presented sufficient evidence of a strong b ond betw een him and the child. Judge Holland stated that there may be a suspicion that Evans is Kendi s father, but she refused to destroy a family unit based on suspicion. In the Judge s view, the degree to which Evans cast suspicion on Kendi s parentage did not j ustif y ordering genetic testing that would dismantle an intact family unit and not serve Kendi s best interests. Accordingly, Judge Holland issued an order on August 19, 2003 dismissing Evans complaints. On September 26, 2003, Judge Holland dismissed Evans post judgment motion -6- for reconsideration. Evans filed a timely appeal to the Court of Special Appeals, but before any proceedings in that cou rt, we issued a writ o f certior ari on o ur ow n initiativ e. Evans v. Wilson, 379 Md. 225, 841 A.2d 339 (2004). Evans presents the following questions for our review: 1. Did the trial court err in applying a b est interests analysis when c onsidering Mr. Eva ns request to establish paternity of a child born after the marriage of Ms. Wilson and her husband? 2. Did the trial court err by not automatically permitting a blood or genetic test upon the request of Mr. Evans, the putative father? 3. Assuming that the best in terest[s] stand ard still applies to a putative father s request for a blood test o f a child born during a marriage, did the trial court err in its application of that standard? 4. Did the trial court violate Mr. Evans co nstitutionally protected liberty interest and deny him due process of law when it dismissed his complaint to establish pate rnity? We hold that the trial court com mitted no error in denying Evan s request for a mandatory paternity test of Kendi, nor did it violate any constitution ally protected libe rty interest enjoyed by Evans. Under Maryland law, Kendi is the presumed child of Wilson and Harris, who were married at the tim e of her birth. The Circuit Court correctly considered Kendi s best interests before denying paternity testing and, in s o doing, did not abuse its discretion. Furthermore, we conclude that Evans has no constitutionally protected interest -7- in having a relat ions hip w ith th e chi ld of Wils on and H arris ; con sequ ently, no violation of due proc ess occurre d when the Circuit C ourt rejected his petition fo r a paternity test. II. Standard of Review Our review of the Circuit Court s order in this case centers on whether the order was legally correct . Walter v. Gunter, 367 Md. 386, 391-92, 788 A.2d 609, 612 (2002). If the order being reviewed involves an interpretation or application of Maryland statutory or case law, our review is de novo. Id. at 392, 788 A.2d at 612. If, on the other hand, the trial judge correctly interpreted and applied the law and the matter falls within the sound discretion of the trial court, we o rdinarily defer to the trial court s judgment, recognizing that it is 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, 655 A.2d 901, 908 (1995) (citing Petrini v. Petrini, 336 Md. 453 , 470, 648 A.2d 1 016, 1023 (199 4)). Questions regarding th e best interests of a child fall generally within the sound discretion of the trial court and ordinarily will not be disturbed absent a clear abuse of discretion. See Walter, 367 Md. at 391-92, 788 A.2d at 612; Giffin v. Crane, 351 Md. 133, 144-45, 716 A.2d 1029, 1035 (1998); Beckman, 337 Md. at 703, 655 A.2d at 909; Voishan v. Palma, 327 Md. 318, 331, 609 A .2d 319, 326 (199 2). III. Discussion Evans contends that the Circuit Court erred in applying the best interests of the child standard in determining that Kendi ought not have a blood test to establish conclusively her -8- pate rnity. He subm its that, rather, the co urt should have ma ndated a p aternity test of Kendi and himself and then, after learnin g the results, co nsidered th e best interests o f Kend i in determining issues of visitation. Evans argues in the alternative that, even if the best interests standard controls the decision of whether to order a paternity test in this case, the Circuit Court erred in its application of that stand ard beca use it failed to balance Evans interest in establishing himself as a fathe r against Wilson s interest in preserving her intact fam ily. Evans f inal argum ent is that he h as a cons titutionally protected libe rty interest in the opportun ity to develop a re lationship w ith Kendi a nd that the C ircuit Court d eprived him of that opportunity without due process of law. Wilson advances the position that, under the holding in Turner v. Whisted, 327 Md. 106, 607 A.2d 93 5 (1992), the Circuit Co urt was corre ct to use the best interests standard in determining whether Kendi, who was born during a marriage and is presumed to be the legitimate child of W ilson and Harris, shou ld be require d to subm it to blood or g enetic testing. Wilson fu rther mainta ins that the C ircuit Court p roperly exercise d its discretion when denying Evans request for a paternity test. Wilson agrees with the Circuit Court s assessment that o rdering a pate rnity test in this case would be contrary to Kendi s best interests because the test would risk breaking apart a stable and supportive family. As to Evans due process claim, Wilson argues that no constitutional liberty interest is at stake and, therefore, E vans has n o entitlement to due process with respect to ob taining Kendi s paternity test. -9- A. The Best Interests Standard Applies To resolve the present controversy, we first must determine whether the trial judge was correct in concluding that the decision of whether to order a paternity test in this case depended on an evaluation of the best interests of the child. Two sets of provisions under the Marylan d Cod e relate to paternit y detemin ations. One method f or ascertainin g paternity can be found in Maryland Code, Section 1-2 06 and 1 -208 of th e Estates an d Trusts A rticle (1974, 2001 R epl. Vo l.). Section 1-206(a), for testamentary purposes, creates a presumption of legitimacy for children bo rn to a married mothe r: (a) Marriag e of paren ts. A child born or conceived during a marriage is presume d to be the le gitimate child of both spouses. Except as provided in § 1-207, a child born at any time after his parents have participated in a marriage ceremony with each other, even if the marriage is invalid, is presumed to be the legitimate child of both parents.1 Maryland Code, § 1-206(a) of the Estates and Trusts Article (197 4, 2001 Repl. V ol.).2 1 Appare ntly suggesting that the statutory presump tion should not apply in this case, Evans mentions th at, when W ilson and H arris were married, they had not obtained a marriage license. We note, however, that the statutory presumption is not dependent on whether the man and woman procured a marriage license. All that is necessa ry for the presu mption to apply is that the husband and wife have participated in a marriage ceremony with each other. It cannot be denied that this require ment has b een establish ed in this case, given the uncontradicted testimony that Wilson and Harris participated in a Muslim marriage ceremony on Oc tober 7 , 2000. 2 Section 1-207 of the Estates and Trusts Article, which is referenced in Section 1-206, involves adopted children and is not relevant for the purpose of the present discussion. It states: (a) Genera l Rule. An adopted child shall be treated as a natural child of his adopting parent or parents. On adoption, a child no longer shall be considered a child of either natural parent, except -10- Under this provision, the husband is the presumed father of the child born to his wife during the ma rriage. On the other hand, when a child is born to parents who have not participated in a marriage ceremony with each oth er, Section 1 -208 of th e Estates an d Trusts A rticle establishes the rules for determining the child s mother and f ather: (a) Child of his mother. A child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the ch ild of his mother. (b) Child of his father. A child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the ch ild of his father only if the father: (1) Has bee n judicially determ ined to be the father in an action brought under the statutes relating to pate rnity proceedings; (2) Has acknowledged himself, in writing, to be the father; (3) Has openly and notoriously recognized the child to be his child; or (4) Has subsequently married the mother and has acknowledged himself, ora lly or in writing, to be the father. Code, § 1-208 of the Estates and Trusts Article. Other statutory provisions governing Paternity Proceedings are located in Maryland Code, Sections 5-1001 through 5-1048 of the Family Law Article (198 4, 2001 Repl. V ol.). that upon ad option by the sp ouse of a natural pare nt, the child shall be con sidered the c hild of that n atural paren t. (b) More than one adoption. A child who has been adopted more than once shall be considered to be a child of the parent or parents who have adopted him mo st recently and sh all cease to be considered a child of his previous parents. -11- Section 5-1002(b) sets forth the purpose of those sections, which co llectively are subtitled, Paternity Proc eedings (h ereinafter the Paternity Ac t ): The purpose of this subtitle is: (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 pate rnity, c u s tody, gua rdiansh ip, a n d responsibility for the support of children bo rn out of wedlock. Code, § 5-1002 (b) of the F amily Law A rticle. Section 5-1029 establishes the availability of blood or genetic testing of the parties to a paternity proceeding unde r the Paternity Act. It states in releva nt part: On the motion of the [Child Support Enforcement Administration], a party to the proceeding, or on its own motion, the court shall order the mother, c hild, and alleg ed father to submit to blood or genetic tests to determine whether the alleged father c an be e xclude d as bei ng the f ather of the child . Code, § 5-1029(b) of the Family Law Article. Under this provision, a trial court has no discretion over whether to order a blo od or gen etic test. See Langston v. Riffe, 359 Md. 396, 754 A.2d 38 9 (2000). In stead, upon any party s motion , the presiding court shall order the mother, child, and alleged father to undergo paternity testing. This Court, in Turner v. Whisted, 327 Md. 106, 607 A.2d 935 (1992), had the -12- opportun ity to consider whether the determination of paternity should be governed by the Estates and Trusts Article or the Paternity Act when the child in question was born during a marriage, and we concluded that an equitable action under the Estates and Trusts Ar ticle was the best way of establishing paternity in such a case. Id. at 113, 607 A.2d at 938. Turner had a sexua l relation ship w ith an un married wom an wh o beca me pre gnant. Id. at 109, 607 A.2d at 936. B efore th e child w as born , however, the woman married another man and delivered the child during that ma rriage. Id., 607 A.2d at 936. Six months after the birth, the child s mother and her husband separated. Id., 607 A.2d at 937. While separated from his wife, the husband continued to visit the child on a regular basis and paid support for the child s care. After leaving her h usband, the child s mother again started seeing Turner, who was then able to develop a relationship with th e child. Id. Eighteen months after renewing their relationship, Turner and the child s mother broke up, and Turner s contact with the child ca me to a n end. Id. Turner sued, seeking visitation and an order for a blood test of the child to determine his paternit y. Id. Following decisions in the C ircuit Court a nd Cou rt of Specia l Appeals denying Turner s requests, this Court issued a writ of certiorari to determine whether Section 5-1029 of the Family Law Article, the statute mandating that a child submit to a blood test, was appropriate for situations like Turner s. Id. at 111, 607 A.2d at 937. We rejected the proposition that the case necess arily was c ontrolle d by the p rovision s of Se ction 5- 1029. Id. at 112, 6 07 A.2 d at 938 . Instead, we declared that paternity actions may be pursued under -13- either the provisions of the Family Law Article or in equity unde r the Estates a nd Trusts Article. Id. Nevertheless, we concluded that an action to establish paternity is mo re approp riately brought under the Estates & Trusts Article when the child at issue has been born during a marriage. Id. at 113, 607 A.2d at 938. As we explained, where a child is presumed legitimate and where two men each acknowledge paternity of that child, the procedure for considering the issue of paternity under the Estates and Trusts Ar ticle is preferab le because it presents the more satisfactory and less traumatic means of establishing pate rnity. 327 Md. at 113, 607 A.2d at 938 (citing Thomas v. Solis, 263 Md. 536, 544, 283 A.2d 777, 781 (1971); Dawson v. Eversberg, 257 Md. 308, 314, 262 A.2d 729, 732 (1970)). We compared a motion for a blood test under the Estates and Trusts Article with a request for a physical examination under Maryland Rule 2-423,3 which the court has d iscretion to 3 Maryland Rule 2-423 states: When the menta l or physical con dition or cha racteristic of a party or of a person in the custody or under the legal control of a party is in controversy, the court may order the party to subm it to a me ntal o r phys ical e xam ination by a suitably licenced or certified examine r or to produ ce for exa mination th e person in the custody or under the legal control of the party. The order may be entered on ly on motion for good cause and upon notice to the person to be exam ined and to all parties. It shall specify the time and place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. The order may regulate the filing and distribution of a report of findings and conclusions and the testimony at trial by the examiner, the payment of expenses, and any other relevant matters. -14- grant for go od cau se. Id. at 113-14, 607 A.2d at 939. In our view, the discretionary aspect of the court s decision under the Estates and Trusts Article permits consideration of the competing interests at issue. Id. at 114, 607 A.2d at 9 39. For example, th e court m ust consider the husba nd and w ife s privacy inte rest along with the petitioner s interest in a relationship with th e child. Id. Most significantly though, we recognized that, in applying its discre tion, the c ourt ma y conside r the be st interes ts of the child. Id. at 116, 607 A.2d at 940. We exp lained further: The criteria for determining the child s best interests in cases of disputed paternity include consideration of the stability of the child s current hom e environm ent, whether there is an ongoing family unit, and the child s physical, mental, and emotional needs. An important consideration is the child s past relationship with the putative father. Finally, other factors might even include the child s ability to ascertain genetic information for the purpose of medical treatm ent a nd genea logical h istor y. Id. at 116-17, 607 A.2d at 940. In the present case, like in Turner, two men (one the mother s husband and the other her one time paramour) claim to be the father of a child born during a marriage so that, as we made clear in Turner, the provision s of the Es tates and T rusts Article set forth the ap propriate procedures for analyzing the question of a child s p aternity in such a case. The application of those provisio ns to this case is straightforward. Under Section 1-206, Kendi is the presumed child of Wilson and Harris, and a blood or genetic test may be ordered only upon a showing of good cause presumably of sufficient persuasive force to overcome the statutory presumption. When making the determination of good cause, the court must weigh the -15- various interests of the parties and, in particular, consider whether blood or genetic testing would be in the be st interests of Ken di. The C ircuit Court, therefore, correctly followed the precedent in Turner and made the decision to deny Kendi s blood or genetic test based on an assessment of the child s best interests. Evans argues, ho wever, tha t Turner has lost some of its authoritative value in light of several amendments to the Family Law Article and our more recent opinion in Langston v. Riffe, 359 M d. 396, 754 A.2d 389 (2000). He alleges that these developments in the law represent an expansion of the rights of putative fathers to the extent that a putative father has an absolu te right to dem and blood or genetic testing [of the child] at any time. Although Evans is correct that p utative fathe rs now h ave greate r rights to challe nge patern ity declarations, the expan ded rights to which h e refers do not apply to ind ividuals in his position. That is, as we explain in greater detail below, because Kendi was not born out of wedlock, Evans is not her putative father. 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. The transformation began in 1994 when we filed our decision in Tandra S. v. Tyrone W., 336 Md. 303, 648 A.2d 439 (1994), where we held that, under Maryland Rule 2-535,4 a trial 4 Maryland Rule 2-535 provides: (a) Gen erall y. On motion of any party filed within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment and, if the action was tried before the court, may take action that it could have taken under Rule 5-534. -16- judge could set aside or otherw ise alter or am end a judg ment of p aternity after 30 d ays only in the event of fraud, mistake, . . . irregularity, or clerical error. Id. at 315, 648 A.2d at 445. As a consequence of the holding, two men, who had been named as fathers in two separate paternit y judgm ents an d who had no t establish ed frau d, mistak e, irregularity, or clerical error, were required to continue paying child support, despite strong evidence that they wer e not the biolog ical fath ers. Id. at 323, 648 A.2d at 448. The year after the Tandra S. decision, the General A ssembly amended Section 5-1038 of the Family Law Article, to provide an alternative way for an adjudged father to challenge a judgm ent of p aternity. See 1995 Maryland Laws, ch. 248. The amended language of Section 5-1038(a )(2)(i)(2) perm its 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. Section 5-1038 now provides: (b) Frau d, mi stake, irre gula rity. On motion of any party filed at any time, the court may exercise revisory power and control over the judg men t in ca se of frau d, mi stake, or i rreg ularity. (c) Newly-discovered evidence. On motion of any party filed within 30 days a fter entr y of judg ment, the court may grant a new trial on the ground of new ly-discovered e vidence th at could not have been discovered by due diligen ce in time to move for a new trial pursuant to Maryland Rule 2-533. (d) Clerical mistakes. Clerical mistakes in judgments, orders, or other parts of the record may be corrected by the court at any time on its own initiative, or on motion of any party after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes m ay be so corrected before the appeal is docketed by the appellate court, and thereafter with leave of the appellate co urt. -17- (a) Declaration of paternity fin al; modifications. (1) Except as provided in paragraph (2) of this subsection, a declaration of paternity in an or der is final. (2) (i) A declaration of paternity may be modified or set aside: 1. in the manner and to the extent that any order or decree of an equity court is subject to the revisory power of the court under any law, rule, or established principle of practice and procedure in equity; or 2. if a blood or genetic test done in accordance with § 51029 of this subtitle establishes the exclusion of the individual named as the fath er in the order. (ii) Notwithsta nding s ubpara graph ( i) of this p aragrap h, a declaration of paternity may not be modified or set aside if the individual named in the order ac knowle dged pate rnity knowing he was not the fa ther. (b) Other orders subject to modification. Except for a declaration of paternity, the court may modify or set aside any order or part of an order u nder this sub title as the court considers just and proper in light of the circumstances and in the best interests of the child. Code, § 5-1038 of the Family Law Article. In Langston, we had occasion to interpret two aspects of Section 5-1038 as it was amended in 1995. 359 Md. at 403, 754 A.2d at 392. We consolidated three separate cases in which individuals had unsucce ssfully sought blo od or gen etic testing to ov erturn patern ity judgments. Each judgment had been entered before the 1995 amendment to the sta tute. Id. at 399, 754 A.2d at 390. We held that the amended statute applied retrospective ly to paternity judgments issued before the law s effective date on Octob er 1, 199 5. Id. at 417-18, 754 A.2d at 400. Thu s, the men w ho had b een declar ed fathers b y the court bef ore that date could move, pursuant to Section 5 -1029, to reopen p aternity proceed ings for blo od or gen etic testing. Id. at 437, 754 A.2d at 411. -18- We further held in Langston that the availability of blood or genetic testing under 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 f or a blood or genetic tes t, the trial court must grant the requ est. Id. at 435, 754 A.2d at 410. We summarized this holding as follows: In . . . proceedings [pursuant section 5-1038(a)(2)(i)2 of the Family Law Article], the putative father may, by motion, request a blood or genetic test, pursua nt to section 5 -1029, in o rder to confirm or deny paternity, which is admissible in evidence under the provisions of that statute. A determination of the best interests of the child in ordering the requested testing, or in the consideration of paternity, w hether origin al or revised, is inappropriate. Our holding tod ay applies only to proceedings to modify or set aside a paternity declaration; an attempt to modify or set aside any other order resulting from an original paternity declaration is governed by 5-1038 (b). Id. at 437, 754 A.2d at 411.5 In 1997, the General Assembly again amend ed the Pa ternity Proceed ings subtitle 5 Evans also cites Walter v. Gunter, 367 Md. 386, 788 A.2d 609 (2002) to support his argument that the rights of putativ e fathe rs hav e been expan ded rec ently. Walter, however, is not applicable to the present discussion of the application of the best interests standard. Rather, in Walter, we explo red the eff ect of a vac ated patern ity judgment o n the named father s child suppo rt arreara ges. Id. at 392, 788 A.2d at 612. The Circuit Court in that case had vacated a paternity judgment and prospectively terminated the related child support order, but the court did not excuse the past child support obligations for which the named father was in arrears. Id. This Court held that the trial court erred because, upon vacating a paternity declaration, the putative father cannot be legally obligated for arrearages emanating from child support orders resulting from th e now -vacate d patern ity declara tion. Id. at 403, 788 A.2d at 619. -19- of the Family Law Article, add ing Section 5-1002(c ), which state s: Nothin g in this subtitle may be construed to limit the right of a putative fathe r to file a com plaint to estab lish his paternity of a child. Maryland Code, § 5-1002(c) of the Family Law Article (1984, 1999 Repl. Vol). 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 amendmen ts to the Pate rnity Proceedings of the Fam ily Law Artic le 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. The Court of Special Appeals recently addressed this issue in Stubbs v. Colandrea, 154 Md. App. 673, 841 A .2d 361 (2004 ). In that c ase, like i n the ca se befo re us, a man alleged that he was the father of a child conceived and born during the marriage of the child s mother to a diff erent m an. Id. at 675, 841 A.2d at 362. The court faced the question of whether, upon the petitioner s motion, a blood or genetic test of the child was m andatory under Section 5-102 9(b). Id. at 680, 841 A.2d at 365. Judge Rodo wsk y, writing for the court, first explored the effect of Section 5-1002(c), which prohibits any construction of the statute that would limit the right of a putative f ather to file an action to establish pa ternity of a child. Id. (citing Maryland Code, § 5-1002(c) of the Family Law Article (1984, 1999 Repl. Vol.). As Judge Rodowsky explained, a putative father is one who has fathered a child out of wedlock : Although putative father is not a defined term in the P aternity -20- Act, the quoted term has a settled legal meaning. Black s Law Dictionary defines p utative father to mean [t]he alleged biological father of a child born out of wedlock. Black s Law Dictionary 623 (7 th ed. 1999). That the dictionary meaning of putative father was intended by the Gene ral Assembly when using that term in [Section 51002(c)] is confirmed by construing subsection (c) compa tibly with the balance of [Section 5-1002] to which subsection (c) was added. Id. at 683-84, 841 A.2d at 367. As support for the d ictionary definition of putative father Judge Rodowsky quoted Section 5-1002(b), which states that one of the purposes of the paternity act is to promote the general welfare and best interests of children born out of wedlock. Id. at 684, 841 A.2d at 367 (citing Maryland Code, § 5-1002(b) of the Family Law Article (1984, 1999 Repl. Vol.)) (emphasis added). The Court of Special Appeals thus concluded that the child in [Section 5-1002 (c)] refers to a child born out of wedlock. Id. As further support for the court s reading of the term putative father, Judge Rodowsky extensively reviewed the legislative history of Section 5-1002(c), focusing specifically on the federal legislation that prec ipitated it s enactm ent. Id. at 684, 8 41 A.2 d at 367 . 6 The court 6 Judge Rodowsky for the court in Stubbs observed that Section 5-1002(c) was introduced in the General Assembly as Senate Bill 636, the state legislature s response to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the Federal Act ). Id. at 684, 841 A.2d at 367. He noted that the Federal Act, in an attempt to combat the increase in out-of wedlock pregnancies, conditioned the receipt of continued federal assistance on certain f ederal standards . Id. at 686, 841 A.2d at 368. Senate Bill 636, according to Judge Rodowsky, was then recommende d in an effort to comply with these standards as well as 42 U.S.C. § 666(a)(5 ), which de clares that ea ch State m ust have in effect laws re quiring the use of [ce rtain] pro cedure s . . . to increase the effectiveness of the [child support enforcement] program. Id. at 687, 8 41 A.2 d at 369 (quotin g 42 U .S.C. § 666(a)). One suc h proced ure conce rned the esta blishment o f paternity by genetic testing : -21- held: Nothing in the text of [Section 5-1002(c)], or in its Maryland or federal legislative histories, indicates that the Gene ral Assem bly 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 G overnm ent intende d to require, under the circumstanc es presented here, a ma ndatory blood test similar to that provided by [Se ction 5-1029]. Id. at 688, 841 A.2d 369-70. The Stubbs court also d istinguished our opinio n in Langston on the ground that it, like Section 5-100 2(c), de alt with c hildren born o ut of w edlock . Id. at 689, 841 A.2d at 370. Judge Rodowsky also stated that Langston was inapplicable because it concerned a putative (i) Genetic testing required in certain contested cases. Procedures under which the State is required, in a contested paternity case (unless otherwise barred by State law) to require the child and all other parties . . . to submit to ge netic tests upon the request of any such pa rty, if the request is supp orted by a swo rn sta teme nt by the party (I) alleging paternity, and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties; or (II) denying pate rnity, and setting forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties. Id. at 687, 841 A.2d at 369 (quoting 42 U.S.C. § 666(a)(5)(B)). Judge Rodowsky also quoted a Conference Report on the Federal Act, which stated that the Act contained a number of new provisions that have no direct parallel in current law. Id. (citing H. Rep. No. 104-725 (1996)). The Conference Report described one such unique provision as follows: Standing of Putative Fathers. Putative fathers must have a reasonable opportunity to initiate a paternity action. Id. (quoting H. Rep. No. 104-725 (1996)). Based on this discussion, the Court of Specia l Appeals determined that, when read in context, the federal impetus for Section 5-1002(c) was aimed at providing fathers of children born out of wedlock an avenue for establishing their paternity for the purpose of honor[ing] their supp ort obligations. Id. at 688, 841 A.2d at 369. -22- father seeking to disavow his child support obligation rather than an individual requesting to establish paternity by a blood test. Id. Consequently, following Turner, the Court of Special appeals held that a request to establish paternity by a blood test . . . is to be evaluated under [Section 1-208 of the Estates and Trusts Article]. Id. Judge Rodowsky s persuasive analysis leads us, as well, to conclude that the General Assembly intended the language of Section 5-1002(c) to ensure the protection and suppo rt of children born out of wedlock. Therefore, we agree with the Court of Special Appeals that the effect of Section 5-1002(c) does not reach th e situation be fore us, w here Eva ns seeks to establish paternit y of a child born d uring a marriag e. We also agree with the Stubbs court that Langston does not a ffect our h olding in Turner. As the Court o f Spec ial App eals ob served , Langston involved cases w here the men who had been declared fathers in paternity judgments sought to exclude themselves as the biological fathers of children born out of wedlock. By contrast, in the presen t case and in Turner, the children were born in wedlock and the petitioning men sought, contrary to the presumption of marital legitimacy, to establish paternity in hopes of obtaining visitation rights. Moreover, considering the best interests standard represents the best policy for evaluating when a child born during a marriage can be ordered to undergo paternity testing. If the mandatory blood or genetic testing under Section 5-1029 could be invoked every time an individual seeks to establish paternity of a child born during a marriage, the consequences -23- to intact families could be devastating. Without regard to the child s best interests, courts would be forced to order genetic tests o f every child w hose patern ity is merely questioned. This would be the case even if the child is well cared for and could assert that he or she does not want his or her life to be disturbe d. We do not believe that, in enactin g the Pate rnity Procee dings of the F amily La w Art icle, the le gislature intende d such an eff ect. Turner, therefore, 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. We hold that the trial judge was correct to conclude that the best interests of the child governs whether to order blood or genetic testing of Ke ndi. B. Abuse of Discretion Having determined that the best interests of the child standard applies in this case, we turn to Evans alternative argument that the trial judge erred in her application of that standard. Evans contends that a blood or genetic test would not jeopard ize Kend i s interests in preserving the family unit because, in Evans view , Wilson and Harris did not have an intact fam ily. Furthermore, Evans suggests that the trial court placed too much emphasis on the possible consequences of the results of the paternity test and did not adequately weigh Evans interest in establishing himself as the father of K endi. These argum ents are unavailing. Absent a clear abuse of discretion, an appellate court ordinarily will not disturb a trial -24- court s assessment of the best interests of a child. See Walter, 367 Md. at 391-92, 788 A.2d at 612; Giffin, 351 Md. at 144-45, 716 A.2d at 1035; Beckman, 337 Md. at 703, 655 A.2d at 909; Voishan, 327 Md. at 331, 609 A.2d at 326. In Turner, we offered the following guidance for applying the best interests standard, which we stated should be the trial court s paramount concern : The criteria for determining the child s best interests in cases of disputed paternity include consideratio n of the stability of the child s current home environment, whether there is an ongoing family unit, and the c hild s physical, mental, and emotional needs. An important consideration is the child s past relationship with the putative father. Finally other factors might even include the child s ability to asce rtain genetic information for the purpose of me dical trea tment a nd gen ealogic al history. 327 Md. at 116-17, 607 A.2d at 940. In addition to these criteria, we stated that the trial judge should consider th e extent of [the param our s] com mitment to th e responsib ilities of parenthood, and balance his interest in establishing his status as [the child s] natural father against the [married couple s] interest in protecting the integrity of the familial relationships already formed. Id. at 117, 607 A.2d at 940. The trial judge in the present case followed this guidance. In rendering her decision, Judge Holland emphasized that her p rimary co ncerns were K endi s b est intere sts. Invoking Turner, she recognized that preserving the family unit was crucial to Kendi s interests and that it outweighed Evans interest in establishing his status as Kendi s father. Judge Holland acknowledged that Evans relationship with Wilson created some suspicion that he was the father. The judg e refused, h oweve r, to des troy a family unit bas ed on susp icion, espe cially -25- given what was, in the judge s estimation, an insufficient connection between Evans and Kendi. The trial judge s analysis here demonstrates a proper exercise of discretion supported soundly by the evidence in the record. Kendi is the presumed child of Harris because she was born during his marriage to Wilso n. See Code, § 1-206 of the Estates and Trusts Article. Although Evans presented evidence of a sexual encounter with Wilson approximately one year before Kend i s birth and that Wilson wrote letters ackn owledging E vans to be Ken di s father, that evidence does not necessarily overcome that presumption as a matter of law. Sign ifica ntly, Wilson testified that her affair with Eva ns ended at least one m onth before Kendi was con ceived, and , despite this admitted affair, the record amply supports the finding that Wilson s f amilial relations hip with H arris and K endi rema ins intact. Ke ndi, by all accounts, has bonded with Harris, whom she recognize s as her fath er and relies o n to meet her financial, emo tional, an d health n eeds . Additio nally, the eviden ce show s that, since Wilson s affair, she and Harris have lived tog ether as a family, sharing meals, paying for K endi s daycare, and enjoying recreation together on weekends. We cannot say that, based on this evidence, the trial judge abused her discretion in denying Evans requ est for a blood or g enetic test of Ken di. C. Due Process As his final argument, Evans claims that, by refusing to order a paternity test of Ken di, the trial court violated his constitutional right to due process. Specifically, Evans maintains -26- that he has a constitutionally protected liberty interest in the opportunity to develop a relationship with his daughter and that he was deprived of this interest without due process. As a basis for this contention, Evans cites Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1991), a case that generally contradicts Evans reading of the Constitution. The factual circumstances in Michael H. do not depart in any relevant manner from the case at bar. Michael had an adulterous affair with Carol while she was married to Gerald. Id. at 113, 109 S.Ct. at 2337, 105 L.Ed.2d at 100. C arol, while still m arried to Gerald, gave birth to a daughter, Victoria, and informed Michael that he might be the fathe r. Id. at 113-14, 109 S.Ct. at 2337, 105 L.E d.2d at 100 . Having d eveloped a relationship with Victoria and believ ing himself to be her natural father, Michael petitioned for visitation rights. The California courts denied his request based in part on a statutory presumption of legitima cy. Id. at 115-16, 109 S.Ct. at 2338, 105 L.Ed.2d at 101. Michael argued before the Supreme Court that the California statute creating a presumption of legitimacy was unconstitutional and that, under the Due Process Clause of the Constitution, he had a constitutiona lly protected liberty intere st in his relations hip with Victor ia. Id. at 121, 1 09 S.Ct. at 2341, 105 L.Ed.2d at 104-05. The Court, in a divided opinion, affirmed the state court s decision that the statutory presumption was con stitutional. Id. at 132, 1 09 S.C t. at 2346 , 105 L .Ed.2d at 111. A plurality of the Court concluded that the Constitution did not recognize a right of the natural father to a relationship with his child who was born during the marriage of the child s mo ther to another man. The plurality explained -27- that the decision rested upon the absence of any constitutionally protected right to legal parentage on the part of an adulterous natural father in Michael s situation, as evidenced by long tradition. Id. at 129 n.7, 109 S.Ct. at 2345 n.7, 105 L.Ed.2d at 110 n.7. Justice Brennan authored a dissenting opinion and noted that, although only four justices believed that Michael had a liberty interest in his relationship with Victoria, [f]ive Members of the Court refuse[d] to foreclose the possibility that a natural father might ever have a constitutionally protected interest in his relationship with a child whose mother was married to, and cohabitating with, another man at the time of the child s conception and birth. Id. at 136, 109 S.Ct. at 2349, 105 L.Ed.2d at 114 (Brennan, J., dissenting). Arguing that such a liberty interest does exist, Justice Brennan observ ed that the Supreme Court s opinions in these sort of cases: produced a unifying theme: although an unwed father s biological link to his child does not, in and of itself guarantee him a constitution al stake in his relationsh ip with that child, such a link combined with a substantial pa rent-child relationship w ill do so. When an unwed father demonstrates a full commitment to the responsibilities of parenthood by com[ing] forward to participate in the rearing of his child, . . . his interest in personal contact with his child acquires substantial protection under the Due Process C lause. Id. at 142-43, 109 S.Ct. at 2352, 105 L.Ed.2d at 118-19 (quoting Lehr v. Robertson, 463 U.S. 248, 261, 103 S .Ct. 2985, 2993, 77 L .Ed.2d 614, 626 (1 983)). In Turner, 327 Md. at 114, 607 A.2d a t 939, we re lied on the m ajority s decision in Michael H., which, acc ording to th is Court, held M ichael H. h ad no con stitutionally -28- protected right to e stablish his pate rnity of V ictoria. We als o found Justice B rennan s opinion to be instructiv e, althou gh we did not adopt it. Id. at 116, 607 A.2d at 940. Justice Brennan s discussion, we believed, highlighted why a good cause analysis was appropriate for determining whether to order paternity testing of a child bo rn durin g a ma rriage. Id.; see also supra at Section III A of this Opinion (discussing the good cause analysis advanced in Turner). We reasoned that, in requiring a court to permit an individu al s request for a blood test of a child born during m arriage only upon a show ing of good cau se, the court ought to be able to consider an d balance the differen t interests that w ere separate ly recognized by the majority and the dissent in Michael H. Id. at 116, 607 A.2d at 940. Turning to the instant c ase, we dis agree with Evans a rgumen t that Michael H. confers upon him a p rotected liberty inter est. Despite the diverging v iews exp ressed in Michael H., neither the Supreme Court nor this Court has recognized any constitutiona lly protected liberty interest of an alleg ed biologic al father in de veloping a relationship with a child who w as born while the mother was married to another man.7 Moreover, Evans still could not prev ail 7 The dissent suggests that our interpretation of the Estates & Trusts Ar ticle and Fa mily Law Article runs afoul the Equal Rights Amendment to the Maryland Declaration of Rights (ERA). Specific ally, the dissent argues that requiring courts to consider the best interests standard in situations like the case before us places a greater bu rden on th e male biological parent than on the female biological parent. The dissent s reliance on the ERA is misplac ed. The dissent misrepresents the nature of the interests at issue. This case is not about gender classifications; it is about the State s interests in preserving family unity and the best interests of the child. The State has a strong interest in protecting the integrity of the marital family unit and in prom oting fa mily harm ony. See Michael H., 491 U.S. at 125, 109 S. Ct. at 2343, 105 L. Ed. 2d at 107; Turner, 327 Md. at 114-16, 607 A.2d at 939-40 . Related to this is the State s longstanding poli cy in favor of protecting the best interests of the child. -29- See In re Mark M., 365 M d. 687, 705 -06, 782 A .2d 332, 34 3 (2001); Boswe ll v. Boswe ll, 352 Md. 204, 218-19, 721 A.2d 662, 669 (1998); In re Adoption No. 10941, 335 Md. 99, 113, 642 A.2d 201, 208 (1994); In re Adoption/Guardianship No. A91-71A, 334 Md. 538, 561, 640 A.2d 10 85, 1096 (1994). A s we discu ssed in Part A supra, examining the best intere sts of the child in a case such as this before ordering genetic testing allows for the protection of these important interests. The dissent cites Toft v. Nevada ex. rel. Pimentel, 108 Md. App. 206, 671 A.2d 99 (1996) as support for the position that our holding in the present case violates the ER A. Toft is distinguisha ble on two g rounds. Firs t, the dissent m ischaracteriz es the holding in Toft. The dissent states that the Toft court ruled th at a mother could receive blood tests to rebut the presumption of legitimacy. Dissenting op. at 13. The issue in Toft, however, was not whether the mother could receive blood tests but whether the results of genetic testing already obtained could be used as evidence to rebut the presumption of legitimacy. The alleged father in Toft had subm itted to paternity testing pursuant to an order, in a separately numbered case, that had been issued almost one year before the mother filed the action that was before the Toft court o n appe al. Toft, 108 Md. App. at 211-12, 671 A.2d at 101-02. Nothing in the Toft opinion explains how the judge in that separately numbered case reached the conclusion that the mo ther, child, and alleged father must undergo paternity testing, and the Court of Special Appeals did not address whether the judge had erred in requiring such testing. See id. at 211 n.2, 671 A.2d at 101 n.2. Therefore, the dissent is wrong in asserting that the Toft court ruled that a mo ther could o btain genetic testing without the court first considering the best interests of the child. Second, Toft is distinguishable on the facts. The mother in Toft remained married to the husb and at the time of co ncep tion, but t heir fam ily unit was hardly intact. The parties agreed that, during the period wit hin which the child was conceived, the mother had been separated and living apart from h er husband for a t least fo ur mon ths. Id. at 210, 214, 617 A.2d at 101, 103. While separated, she had a sexual relationship with two other men and lived in California, Nevada, and Virginia at various times while her husband lived in Texas. Id. The mother never reunited w ith her husb and, and th ey were divo rced befo re the child was born. Id. at 210, 214 n.5, 671 A.2d at 101, 103 n.5. Ordering blood testing in these circumstances certainly would not damage any marital harmony and would, in addition, be in the be st interes ts of the child. Nevertheless, as we made clear above, the intact family unit maintained by Wilson and Harris is very different from the broken relationship described in Toft. The record suggests that Wilson s sexual relationship with Harris concluded one month before Kendi was conceived and, since then, Wilson and Harris have lived together as husband and wife. Furthermore, since Kendi s birth, Harris has acted as her father, bonding with her and providing for her financ ially and e motion ally. Based on thes e two c lear distin ctions, Toft is improper ly cited as support for the dissent s view that paternity testing should be ordered -30- in this case even if we w ere to adopt Ju stice Brenn an s view that a biolog ical link to a ch ild combined with a substantial parent-child relationship guarantee the natural fathe r a relationship with the child. Quite simply, Evans and Kendi have not developed a substantial parent-child relationship. Evans has provid ed $80 w orth of bab y supplies as ch ild support, visited Kendi only on several occasions, and has not seen the baby since she was six weeks old. This conduct does not demonstrate, as Justice Brenn an wou ld require, a f ull commitment to the responsibilities of parenthood by com[ing] forward to participate in the rearing of his child. Michael H., 491 U.S. at 142-43, 109 S.Ct. at 2352, 105 L.Ed.2d at 11819 (Brennan J., dissenting ). Because Evans does not have a protected liberty interest in dev eloping a re lationship with Kendi, the Due Process C lause of the Constitution does not g uarantee h im any protection with respect to that relationsh ip. The C ircuit Court, therefore, did not violate the Constitution when it denied Evan s reque st for a p aternity tes t. JUDGMENT OF THE C IRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT. whenever a man claims that he is the biological father of a child born to an intact marriage. -31- Circuit Co urt for Baltim ore City Case No.24-D-02-004402 IN THE COURT OF APPEALS OF MARYLAND No. 123 September Term, 2003 BRETT EVANS v. TRINA WILSON Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting opinion by Raker, J. Filed: August 24, 2004 Raker, J., dissenting: I respectfully dissent. Brett Evans s request for a blood test to determine whether he is the biological father of Kendi should be granted. If the test reveals that he is the biological father, then th e court sho uld apply the best interests of the child test to determine what, if an y, legal rights he sh ould be af forded as to Kend i. The ma jority holds that w hen a ma n claims to be the fath er of a child born wh ile the mother was married to another man, pu rsuant to the Estates & T rusts Article, the court may grant his request for a blood test only upon a showing of good cause. Maj. op. at 15. In determining wh ether good cause exists , the court m ust conside r the best intere sts of the child. Id. I disagre e for se veral re asons. F irst, in my v iew, good cause, under Rule 2-423, should be determ ined based upon an assessme nt of wh ether the req uest is materia l to some issue in the ca se. See Rob erts v. Robe rts, 198 Md. 299, 82 A.2d 12 0 (1951). Consideration of the best interests of the child has no place at this stage of the proceedings and comes into play only after the blood test has been performed. Second, an action to determine paternity may be brought under either Maryland Code (1984, 1999 Repl. Vol., 2003 Cum . Supp.) §§ 5-1001 through 5-1048 of the Family Law Article or under Maryland Code (1974, 2001 Repl. Vol., 2003 Cum. Supp.) §§ 1-206 and 1-208 of the Estates & Trusts Article. The Estates & Trusts Article is not the exclusive means for determining pate rnity b ut is merely an alternative means. As pointed out by Judge Eldridge in Turner v. Whisted, 327 M d. 106, 1 21, 607 A.2d 9 35, 943 (1992 ) (Eldrid ge, J., dissenting), the patern ity provisions of the Family La w Article w ere better des igned to resolve disputes over the identity of the natural fathe r. This is partic ularly so to day, following the addition of § 5-10 02(c) to the F amily Law Article in 19 97 since Turner was decide d. Until Turner v. W histed, 327 Md. 106, 607 A.2d 935 (1992), a person in Maryland could seek a declaration of paternity under the Family Law Article or the Estates & Trusts Article. See Taxiera v. Malkus, 320 M d. 471, 5 78 A.2 d 761 ( 1990) . Turner arbitrarily decided that when two men each acknowledge paternity of the same child . . . an action to establish paternity is more appropriate ly brought un der the Esta tes & Tru sts Article, on the ground th at the Estates & Trusts Ar ticle presents th e more satisfactory and less traumatic mea ns of establish ing p atern ity. 1 327 M d. at 113, 607 A.2d at 939. Under Turner, upon a motion for good cause shown, the court has the discretion to order a blood test pursuant to Rule 2-423, which provides that a court may order an examination [w]hen the mental or physical condition or characteristic of a party or of a person in the custody or 1 Judge Eldridge, joined by Judge McAuliffe, concurred and dissented, on two grounds. First, Judge Eldridge disagreed with the majority s view that the Estates & Trusts Article was the better statute fo r resolving p aternity issues. Second, on the merits, Judges Eldridge and McAuliffe held the view that the putative father was entitled to blood tests and that he did not have to establish that a declaration of paternity was in the child s best interests before blood tests should be ordered. Turner v. Whisted, 327 Md. at 118, 607 A.2d at 941 (Eldridge, J., concurring and dissen ting). The d issent pointed out that: [t]he fact of biological parentage does not automa tically entitle the natural father to visitatio n with h is child. A determination of paternity w ould entitle the natural father to the p resumptio n that the ch ild s interests will be served by allowing the father visitation. Yet, this presumption can be rebutted when some exception al circumsta nces rend er such cu stody [or visitation] detrimental to the best interests of the child. Id. I agr ee w ith th e dissent com plete ly. -2- under the legal control of a party is in controversy. Id. at 113-14, 607 A.2d at 939. The Turner court held that the determination of good cause allows the court disc retion to consider the best interests of the child. Id. at 115, 607 A.2d at 940 (emphasis add ed). In reali ty, however, the Turner court did not simply allow the court to consider the best interests of the child, but instead mandated that the court consider the best interests of the child before a blood test is ord ered. Id. at 116, 607 A.2d at 940. Good c ause sim ply requires that the requ est be mate rial to some iss ue in the cas e. The req uest in this cas e is undeniab ly material to the issu e in the case , that is, the patern ity of Kendi. 2 I cannot subscribe to a view that precludes the discovery of the true facts, undeniab ly ascertainable and reliable.3 I agree fu lly with the ph ilosophy repe atedly 2 This is not a case where a third party blithely asserts that he is the fath er of a child born to a married woman. Evans and Wilson had a sexual relationship, beginning in March 2001. Evans regularly spent nights at W ilson s home, and attend ed a baby sh ower in November 2001. Ev ans receive d mail from Wilson, an d his paren ts visited Kendi at the hospital on the day tha t she was b orn. Wilson prepared a birth announcement indicating that Evans was the f athe r, and on V alen tine s Da y, when Kendi was one month old, Wilson sent Evans a card identifying him as Daddy. Evans visited with Kendi and bought her clothes, diapers and toys. 3 As pointed out by the Supreme Court of Nebraska, in B.H. v. K.D., 506 N.W.2d 368 (Neb. 1993): The result of the test is universally accepted by distinguished scientific and medical authority. There is in fact, no living authority of repute, medical or legal, who may be cited adv ersely . . . There is now . . .practically universal and unanimous judicial willingness to give decisive and controlling evidentiary weight to a bloo d test ex clusion of pate rnity. Id. at 382 ( quotin g S. Sc hatkin, Disputed Paternity Proceedings § 5.03 (1975)). -3- expressed by Judge E ldridge, and articula ted b y him in Monroe v. Monroe, 329 Md. 758, 783 , 621 A.2d 898, 910 (1993), that under the majority s approach, sometimes the most relevant facts will not be ascertained in order to prevent what a court may regard as an unsatisfactory resolution of the dispute. To reiterate his analysis set forth in Turner: The majority has formulated a procedure whereby the trial court must determine the ultimate result, in order to discover whether that result is satisfactory, before it can ascertain the facts. If the court decides that it likes the predicted ultimate result, then the fact finding process con tinues. If the court decides that it does not like the predicted ultimate result, the process ends. I cannot subscribe to the proposition that relevant, ascertainable evidence sho uld be exc luded bec ause it may lead to a result which the court does not like. The trial court s conjecture over wh ether the result will be satisfactory should not determ ine wheth er facts relevant to that result are concealed. I simply canno t agree with the majority s view that a government (through its courts) is entitled to determine in a particular case that on e will be better off by the perpetuation of a falsity an d the su ppress ion of r elevan t, unpriv ileged f acts. 327 M d. at 123 -24, 60 7 A.2d at 944. Although the Court may think it preferable to bring a paternity action under the Estates & Trus ts Article, the Family Law Article remains an alternate avenue to determine pate rnity, and as I have st ated, the prefera ble statu te. Section 5-1002(c) of the Family Law Article, which w as ad ded to the Paternity Act in 1997 by the General Assembly, states as follows: Establishment of Paternity . 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. -4- Under § 5-1029 of the Fam ily Law Arti cle, a putative father is entitled to a blood or genetic test to determine paternity. The best interests analysis plays no role in determining wheth er the tes t should be orde red. See Langston v. Riffe, 359 Md. 396, 437, 75 4 A.2d 389, 41 1 (200 0). Evans is a putative father under the Family Law Article, and arguably, Kendi is a child b orn ou t of we dlock, notwit hstand ing the f act that s he is leg itimate. 4 Evans points out that puta tive fath ers h ave f ar gr eate r righ ts tod ay than they enjoyed when Turner was considered b ecause of the add ition of § 5-1002(c) to the Family Law Article. Maj. op. at 16. Although agreeing with Evans that putative fathers have expanded rights, the majority dismisses E vans s argu ment by con cluding tha t the expan ded rights to which he refers do not apply to individuals in his position. Id. 4 First, all children are legitimate. Second, under the statutory presumption, Kendi is legitimate , even th ough th ere ma y arise com peting p resum ptions, i.e., the statutory presumption of legitimacy versus the presump tion that migh t arise if Evans is p roven to be the b iologica l father. The Court of Appea l of Florida f or the secon d district mad e a cogen t distinction between legitimacy and paternit y. See Daniel v. Daniel, 681 So. 2d 849 (Fla. App. 1996). The court reasoned as follows: We believe confusion has arisen in the law because of a failure to distinguish between paternity and legitimacy. The presumption of legitimacy is one of the strongest reb uttable presu mptions known in the law . . . The American Heritage College Dictionary 10 01 (3d ed . 1993), def ines paternity as th e state of being a father; fatherhood . . . a woman attempting to establish that a particular man is the father of h er child . . . Only one person can be the biological father of a child. The American Heritage College Dictionary 775 (3d ed. 1993), defines legitimate as being in compliance with the law; lawful. . . Born to legally married parents. Paternity and legitimacy are related concepts, but nonetheless separate and distinct concepts. Id. at 851-852. -5- The majority adopts the reasoning of the court set out in Stubbs v. Colandrea, 154 Md. App. 673, 841 A.2d 361 (2004) in dismissing Ev ans cla im. See maj. op. at 20-21. Using Black s Law Dictionary as the definitive source, bolstered by the stated purpose of the Paternity Act and the legislative history of §5-1002(c), the Stubbs court cons trued the term putative father in § 5-1002(c) to mean a person who has fathered a child out of wedlock. 154 Md. App. at 684, 841 A.2d at 367. The Stubbs court then interpreted a child born out of wedlock to refer only to a child born to an unwed mother and denied that a man who claims to be the father of a child while the mother is married to another man h as rights under § 5-100 2(c) to b ring a p aternity su it. Id. at 689, 8 41 A.2 d at 370 . Although the primary impetus for the enactment of § 5-1002(c) of the Family Law Article may have b een to imp lement the f ederal ma ndate requ iring each sta te to have in effect laws to increase the effectiveness of child support enforcement, that is not the exclusive purpo se of th e statute . The Bill Analysis of Senate Bill 636 sets out eleven changes effectuated in State law b y the bill. 5 5 Many of the chang es are obv iously The Bill Analysis of Senate Bill 636 sets out the changes to State law that are included in the bill as follows: Making it mandato ry, rather than vo luntary, for an ap plicant for a marriage licen se to give the socia l security n umb er of each party; ¢ Expressly authorizing a pu tative father to file an action to establish his paternity of a child; ¢ Eliminating an alleged father s right to a jury trial in a paternity action; ¢ Establishing that an affidavit of parentage constitutes a legal finding of paternity, rather than a rebuttable presumption; ¢ Allowing a legal finding of paternity established by affidavit to be set aside only if it is rescinded within 60 days or, after the expiration of the 60-day period, the party challenging it proves that the affidavit was executed because -6- designed to improve child support, such as making it mandatory to provide the social security number of each party to a marriage license, requiring court-ord ered temporary support orders in certain circumstances, and changing the presumptions in paternity findings by affidavit. B ut expressly au thorizing a p utative father to file an actio n to establish his paternity of a child and mandating blood tests to the putative father upon request is not limited solely to improving the effec tiveness of child suppo rt enforceme nt. Paternity procee dings a re desig ned to p rotect th e welf are of th e child. Branch v. Fields, 496 A.2d 607, 611 (D.C. App. 1985). Since the primary purpose is to provide support ¢ ¢ ¢ ¢ ¢ ¢ of fraud, d uress, or a m aterial mistake of fact; Authorizing the Child Support Enforcement A dministration (CSEA ) to require any in dividual to su bmit to blood or ge netic tests to de term ine p atern ity; Making written statements concerning the cost of a blood or genetic test and records relating to the cost of the mother s medical and hospital expenses and the child s neonatal expenses admissible in evidence in a paternity action without the presence of the custodian of the records and establishing that the statement or record constitutes prima facie evidence of the amount of expenses incurred (su bject to a party s rig ht to subpoena the custodian at lea st 10 days before trial); Requiring the court in a paternity action to pass a temporary child support order if the laboratory report of a blood or genetic test establishes a statistical probability of paternity of at least 99% and the putative father has the ability to pay; Amending the State new hire reporting law to require reporting of additional emp loyment in form ation requ ired for the N ation al New H ire R egistry; Providing immunity for employers, public service companies energy providers, financial institutions, and labor unions that comply with requests for information from the CSEA; and Requiring the CSEA to establish a S tate disbursem ent unit for collection and disbursement of support payments in specified cases effective October 1, 1998, and requiring the Executiv e Director to report to the General Assembly on or before December 1, 1997 on the implementation of the State disbursement unit. -7- for the child, and although Kendi at the present moment is receiving support from Wilson s husband, there may come a time in the future when he will refuse to support the child, perhaps c laiming that he is not the natural father. Moreover, there are many other reasons that a child m ay benefit from the knowledge of the identity of the biological father. The term putative father is broader than the definition of the majority and the Stubbs court and includes a person claiming to be the father of a child born in an extant marriage. The United States Supreme Court and Maryland cases have used the term putative father to refer to a man who claims to be the father of a child born while the mother is marrie d to ano ther ma n. See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 109 S. Ct. 2333, 105 L . Ed.2d 91 (1989 ); Sider v. Sider, 334 Md. 512, 639 A.2d 10 76 (1994); Monroe v. Monroe, 329 M d. 758, 6 21 A.2 d 898 ( 1993) . Further, a review of the case law from our sister states reveals that many states use the term putative father in this manner. For exam ple, Kelly v. Cataldo, 488 N.W.2d 822, 825 (M inn. App. 1992), discu sses a paternity action under M innesota s Parentage Act. The intermediate appellate court referred to a man as the putative father who was seeking parental rights with a child who was conceive d and bo rn while the mothe r was m arried to anothe r man. Kelly v. Cataldo, 488 N.W .2d at 828; see also Ban v. Quigley, 812 P.2d 1014 (A riz. App. 19 90); R.N. v. J.M., 61 S.W.3d 149 (Ark. 2001); In re Jonathan M., 764 A.2d 739 (Co nn. 2001 ); Weidenbacher v. DuClos, 661 A.2d 988 (Co nn. 1995 ); Preston v. Cummings, 871 So. 2d 1055 (Fla . App. 2004 ); K.S. v. -8- R.S., 669 N.E .2d 399 (In d. 1996); C.C. v. A.B., 550 N.E .2d 365 (M ass. 1990); In re KH, 677 N.W .2d 800 (Mich. 2004); Ivy v. Harrington, 644 So. 2d 121 8 (Miss. 1994). The restrictive definition formulated by the majority is un warranted , unsuppo rted, and resu ltoriented. The definition as cribed to b orn out of wedlock is also impo rtant. The majo rity and the Stubbs court simply assume that out of wedlock has only one meaning a child born to an unwed mother. Courts around the country have considered the meaning of this language and have interpreted the phrase to mean either a child born to an unmarried mother or a child born to a married woman but fathered by a man other than the mother s husb and. See, e.g., In re Legitimation of Locklear, 334 S.E.2d 46, 50-51 (N.C. 1985). In Locklear, the North Carolina Supreme Court considered the meaning of the phrase and concluded as follows: Our research indicates that the phrase, born out of wedlo ck, should refer of the status of the parents of the child in relation to each other. Pursley v. Hisch, 119 Ind. App. 232, 235 , 85 N.E. 2 d 270, 27 1 (1949). A child born to a married woman, but begotten by one other than her husband, is a child born o ut of w edlock . . . Id. citing State of North Dakota v. Coliton, 73 N.D. 582, 17 N.W.2d 546 (1945). This same interpretation of the phrase is also consistent with the position taken by the Uniform Act on Pate rnity, § 1, 9A U.L.A. 626 (1979 ) (act withdrawn 19 73), which states, A child born out of wedlock includes a ch ild born to a married woman by a man other than her husba nd. Fina lly, the Uniform Illegitimacy Act of 1922, § 1, 9 U.L.A. 391 (1942) (act withdrawn 1960) interprets the term wedlock as referring to the status of the parents of the child in relatio n to one anothe r. S. Schatkin, I. Disputed Paternity Proceedings § 1.01, at 1-2 (rev. ed. 1984). The -9- alleged parents of Stanley Locklear, Petitioner herein and Stan ley s mother, in their relation to one another, did not acquire the statu s of w edlock . Thus, the minor child was born out of wedlock, although his mother w as married to anothe r man, n ot his na tural fath er. Id. Many other courts have adopted the definition of out of wedlock to mean a child born to an unmarried woman and one born to a married woman but having a fath er other than the mothe r s husb and. See, e.g., County of Lake v. Palla, 114 Cal. Rptr. 2d 277 (2001); Lewis v. Schneider, 890 P.2d 148 (Co lo. App. 19 94); Estey v. Mawdsley, 217 A.2d 493 (Conn. Cir. Ct. 1966); Wilkins v. Georgia Department of Human Resources, 337 S.E.2 d 20 (Ga . 1985); Johnson v. Studley-Preston, 812 P.2d 1216 (Idaho 1991); Pursley v. Hisch, 85 N.E.2 d 270 (Ind . App. 194 9); Girard v. Wagenmaker, 434 N.W.2d 227 (M ich. App. 1 988); Martin v. Lane, 291 N.Y.S .2d 135 (N .Y. Fam. C t. 1968), rev d sub nom. on other grounds; State v. Coliton, 17 N.W.2d 5 46 (N.D. 1945 ); Baker v. Munro, 692 P.2d 126 (Or. App. 1984). The Idaho Supreme Court considered the meaning of the p hrase, noted the common definition, and adopted the broader one. Johnson v. Studley-Preston, 812 P.2d 1216 (Idaho 1991). The court stated as follows: [The Idaho statute] 7-1103 defines child born out of wedlock as a child who is begotten and born outside of lawful matrimony. While this phrase has commonly been construed to mean only a child born to an unmarried mother, it is susceptible to another interpretation. Many jurisdictions have interpreted the phras e child born out of w edlock to mean either a child born to an unm arried moth er or a child born to a married woman but fathered by a man other than the mother s husband . . . . We agree with the above -10- authorities and hold that § 7-1103, which d efines child born out of wedlock as a child who is begotten and born outside of lawful m atrimony, refer s to either a child born to an unmarried woman or a child born to a married woman but who was conceived by a man other than the mother s husband. This interpretation is consistent with the remaining section s conta ined in th e Idaho Patern ity Act. Id. at 1219. The term putative father in the Family Law Article includes a man who claims to be the biological father of a child where th e mother is either unmarried or where the child was conceived by a man other than the woman s husband. This construction is mandated not only because it is fair and makes sense, but also because it is required under the Equal Rights Amendment of the Maryland Constitution. Article 46 of the Maryland Declaration of Rights, known as the Equal Rights Amendment (E.R.A.), was adopted in Maryland in 1972 an d provide s as follow s: Equality of rights under the law shall not be abridged or denied because of sex . In Rand v. Rand, 280 Md. 508 , 515-16, 374 A .2d 900, 904-905 (1977), this Court established that the Equal Rights Amendment forbade gender based discrimination and that the people of Maryland were fully committed to equal rights for men and women. We reiterated in Bainum v. Burning Tree, 305 M d. 53, 64, 501 A.2d 8 17, 823 (1985), that the E.R.A. flatly prohibits gender-based classifications, either under legislative enactments, governmental policies, or by application of common law rules, in the allocation of benefits, burdens, rights and responsibilities as between men and women. -11- It is a violation of the Equal Rights Amendment if a greater burden is placed on the male biological parent to rebut the presumption of legitimacy than on th e female biological parent. See R.McG. v. J.W., 616 P.2d 616 (Colo. 1980). State statutes that employ gender-based classifications such as: [e]xclusive statutes, w hich allo w the m other, husband and child to rebut the m arital presum ption, but de ny this ability to all putative fathers do not w ithstand this scrutiny. First, while not immedia tely ob viou s, suc h statutes emp loy a gender-based classification . . . . Exclusive statutes employ three classifications of persons: biological parents, presumed fathers and children. Within the b iological parent classification, exclusive statutes discriminate on the basis of gender: only women may rebut the presumption. Traci Dallas, Rebutting the Marital Presumption: A Developed Relationship Test, 88 Columbia L. Rev. 369, 379-80 (1988). Applying the majority s reasoning in the instant case causes the Paternity Proceedings subtitle of the Fa mily Law A rticle to fall with in the classification of an exclusive statute because it permits the biological mother to bring a suit to rebut the presu mption of legitimacy, wh ereas it does n ot allow this s ame right to a man claiming to be the biological father. Currently, a woman can bring a paternity action under the Family Law Article to rebut the presumption that her husband is the father of her c hild. See Toft v. S tate of Nev. ex. rel P imental, 108 Md. App. 206, 223224, 671 A .2d 99, 1 07-10 8 (199 6). But a man claiming to be the bio logical fathe r is required to bring a paternity action under the Estates & Trusts Article to rebut the presumption that the mother s husband is the father o f the ch ild. See Turner, 327 Md. at 113, 60 7 A.2d at 938. -12- A man claiming to be the biological father of a child is mo re significan tly burdened than the biological mother if he wishes to rebut the presumption of legitima cy. Section 5-1027(c) of the Family Law Article in effect permits the natural mother to seek a declaration of paternity in a man who is not her husband, and thereby undo the state s interest in prese rving f amily stab ility. Moreover, the Toft court ruled th at a mothe r could receive blood tests to rebut the presumption of legitimacy contained in § 5-1027(c) of the Family Law Article. 108 Md. App. at 225; 671 A.2d at 108. The Toft court did not condition the natural mother s right to seek a declaration of paternity and to receive blood tests on consideration of the child s best interests. Y et, a non-spo use claimin g to be the biological father is requ ired to bring s uit under the Estates & Trusts Ar ticle to establish paternity and to rebut the presumption that the mother s husban d is the father. See Turner, 327 Md. at 113, 607 A.2d at 93 8. More over, unde r the Estates & Trusts Article, the court will not allow the man s request for a blood test unless and until it finds that it is in the best interests of the child to conduct the test. This leads to the biological mother securing blood tests without any qualifications, whereas the man claiming to be the biological father cannot receive the same unless the cou rt finds that it is in the best interests of the child to grant the request for the test. This result is really no different than that found by the Colorado Supreme Court in R.McG. v. J.W., 615 P.2d 666, 671 (Colo. 198 0): that Section 19-6-107(1) [of Colorado s Uniform Parentage Act] exemplif ies a gende r-based clas sification predicated on an overbroad generalization that a mother has a legitimate -13- interest in establishing a determination of paternity in a non-spousal father, while such fathe r has no interest in establishing a determination of paternity in himself. The ramifications of today s decision may lead to some unfortunate results. Assume that sometime in the future, Harris, Wilson s husband, asserts that he is not the father of Kendi and refus es to suppo rt her. Neithe r Kendi n or Harris w ere parties to th is action.6 Would W ilson be per mitted to brin g an action against E vans? If s o, why shou ld Evans not be permitted to bring the action today? Also, if Kendi should need a bone marrow transplant or needs to ascertain genetic information for medical treatment in the future, she will have been denied the benefit of the critical genetic information that Evans is seeking to make available at this time. What happens if these scenarios arise and Evans is no longer alive? Policy and logic req uire that the court order the blood tests requested by Evans. 6 Although no one has raised the issue, I believe that the action should have been dismiss ed for f ailure to join Ke ndi and Harris a s neces sary partie s. -14-

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