Court for Anne Arundel County Case No. C-02-FM-15-0003308
Friedman, Moylan, Charles E., Jr., (Senior Judge, Specially
looking at this case, we find ourselves in an improbable hall
of mirrors in which the customary roles are eerily reversed.
Maryland Code, Family Law Article, Sect. 5-1028 provides for
an "Affidavit of parentage." The appellant,
Samantha Boone, however, invokes it to ask for a declaration
of non-parentage. It is frequently the unwed mother who seeks
to establish the paternity of the biological father in order
to ensure child support. It is the unwed mother herein,
however, who seeks to disenfranchise the legally established
paternity of the appellee, John Youngbar. Conversely, it is
frequently the putative father who shrinks from a designation
as the father. It is the unwed father herein, however, who is
fighting to retain his legally established paternal status.
Up is down and in is out. The topsy-turvy procedural posture
of the case, however, does not begin to explain the flaws in
the appellant's argument.
without benefit of clergy, the appellant and the appellee
cohabitated for approximately three years. It was during that
period, on September 19, 2012, that the appellant gave birth
to a daughter (hereinafter "N."). At the time of
N.'s conception, the appellant was, albeit briefly,
engaging in a sexual relationship with someone other than the
appellee. She nonetheless believed that the appellee was
N.'s biological father, as did the appellee. The appellee
is listed on N.'s birth certificate as biological and
legal father. N., moreover, bears the appellee's last
name. Pursuant to Family Law Article, Sect. 5-1028, both the
appellant and the appellee executed an Affidavit of
Parentage, attesting to the fact that the appellee was,
indeed, N.'s biological father.
September of 2014, however, the appellant and the appellee
separated. With respect to N., they agreed to a shared
custodial arrangement (one week on and one week off). That
arrangement continued until October 12, 2015, when the
appellant filed the "Petition to Establish
Paternity" (actually a Petition to Disestablish
Paternity), which is the subject matter of this appeal. In
that petition, the appellant asserted that she had come to
believe that the appellee was actually not N.'s
biological father. Accordingly, she requested that the
Circuit Court for Anne Arundel County order a DNA test to
confirm the appellee's non-paternity. On January 10,
2016, the appellant filed an Amended Petition, which she
properly titled a "Petition to Disestablish
Paternity." In the Amended Petition, she further alleged
that the appellee had, in fact, already taken a paternity
test and had acknowledged that the test showed that he was
not the biological father of N. The appellant further alleged
that the actual biological father had also taken a paternity
test that affirmatively established his paternity.
N.'s birth, the appellee has been deeply involved in
raising her. In a case not directly involved in this appeal,
he is currently litigating the issues of both custody and
visitation. With respect to the appellant's Amended
Petition to Disestablish Paternity, the appellee has
consistently maintained that the Petition should be
dismissed. Following a full hearing on February 3, 2016 on
the Amended Petition and on the appellee's Motion to
Dismiss, Judge Arthur M. Ahalt (as a visiting judge) granted
the Motion to Dismiss. The appellant has taken this timely
appeal from that dismissal.
appellant's two contentions are framed as questions. She
1. Was the Circuit Court's grant of the Appellee's
Motion to Dismiss the Petition to Establish Paternity correct
considering the factual allegations set forth in the
Appellant's Petition to Establish Paternity, Opposition
to Motion to Dismiss, and Amended Petition to Disestablish
2. Did the Trial Court err by granting the Appellee's
Motion to Dismiss without taking any evidence or testimony or
making a factual and legal determination under Family Law
Article §5-1028 that the Affidavit of Parentage executed
by the parties in this case was not obtained by either fraud,
duress, or material mistake of fact?
Affidavit Of Parentage
case is controlled by Maryland Code, Family Law Article,
Title 5 "Children, " Subtitle 10 "Paternity,
" Sect. 5-1028, which provides for an "Affidavit of
parentage." The affidavit affords the unmarried parents
of a child the opportunity to establish their legal
parentage. Section (a) 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.
the requirements for the filing of such an affidavit is that
both the mother and the father be fully advised as to the
legal significance of signing the affidavit. Subsection
(2) Before completing an affidavit of parentage form, the
unmarried mother and the father shall be advised orally
and in writing of the legal consequences of executing the
affidavit and of the benefit of seeking legal counsel.
(Emphasis supplied). Subsection (d) alerts the signers that
"Execution constitutes legal
finding of paternity." The appellant does not
deny having been advised of both the legally determinative
effect of executing the affidavit, and the benefit of
retaining counsel prior to doing so.
(d) goes on to set forth the extremely limited circumstances
under which the affidavit may be legally challenged.
(1) An executed affidavit of parentage constitutes a
legal finding of paternity, subject to the
right of any signatory to rescind the
(i) in writing within 60 days after execution of the
affidavit; or (ii) in a judicial proceeding relating to the
1. in which the signatory is a party; and
2.that occurs before the expiration of the 60-day period.
(d)(2) emphasizes the severe limitation on any legal
(2)(i) After the expiration of the 60-day period, an
executed affidavit of parentage may be challenged in
court only on the basis of fraud, duress, or material
mistake of fact.
shortly after the birth of N. that the appellant and the
appellee executed the Affidavit of Parentage pursuant to
Sect. 5-1028. That affidavit fully complied with all legal
requirements. That executed Affidavit of Parentage was not
rescinded or challenged in any way within the 60-day period
following its execution. By the very wording of the statute,
it now constitutes a "legal finding of [the
appellee's] paternity" of N. The appellant
challenges that legal finding.
Road Not Taken"
Frost's "The Road Not Taken" concludes:
Two roads diverged in a wood, and I- I took the one less
traveled by, And that has made all the difference.
anomaly of this paternity dispute's not following the
stereotypical script and its disputants' not playing
their stereotypical roles "has made all the
difference." The road more heavily travelled, whose
troubled course we have been spared, has turned out, for the
moment at least, to be intractable terrain.
in the more typical scenario, it were the appellee herein
who, based upon genetic evidence, was attempting to repudiate
his status as legal father notwithstanding his earlier
affidavit of parentage, we would find the controlling law to
be at the moment in a state of turbulent uncertainty. The
opinion of this Court in Davis v. Wicomico County Bureau
of Support Enforcement, 222 Md.App. 230, 112 A.3d 1024
(2015), had held that the status of paternity, once
established by an affidavit of parentage, enjoys an enhanced
invulnerability to subsequent challenge by the
"father" not enjoyed by the more tentative status
of "father" established by judicial declaration in
a typical paternity case. The latter status could be attacked
by genetic evidence challenging it. The former status, that
established by an affidavit of parentage, could be attacked,
after a period of 60 days from the signing of the affidavit,
only by a showing that the original ...