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Boone v. Youngbar

Court of Special Appeals of Maryland

September 29, 2017


         Circuit Court for Anne Arundel County Case No. C-02-FM-15-0003308

          Reed, Friedman, Moylan, Charles E., Jr., (Senior Judge, Specially Assigned), JJ


          MOYLAN, J.

         In 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.

         The Factual Background

         Albeit 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.

         In 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.

         Since 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.

         The Contentions

         The appellant's two contentions are framed as questions. She asks:

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 Paternity?
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?

         The Affidavit Of Parentage

         This 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.

(Emphasis supplied).

         Among 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 (c)(2) provides:

(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.

         Subsection (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 affidavit:
(i) in writing within 60 days after execution of the affidavit; or (ii) in a judicial proceeding relating to the child:
1. in which the signatory is a party; and
2.that occurs before the expiration of the 60-day period.

(Emphasis supplied).

         Subsection (d)(2) emphasizes the severe limitation on any legal challenge.

(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.

(Emphasis supplied).

         It was 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.

         "The Road Not Taken"

         Robert 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.

         The 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.

         If, as 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 ...

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