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Faison v. Mcocse ex rel. Murray

Court of Special Appeals of Maryland

December 4, 2017


         Circuit Court for Montgomery County Case No. 134567-FL

          Nazarian, J., Beachley, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.


          Nazarian, J.

         Although it was hardly Reginald Faison, Jr.'s plan, his appeal in this case reprises Davis v. Wicomico Cty. Bureau, 447 Md. 302 (2016), without the intervening res judicata question. Throughout KaSandra Murray's ("Mother") pregnancy, Mr. Faison believed he was the father of her child. The day after the baby girl ("Child") was born, both Mother and Mr. Faison signed an affidavit of parentage attesting that Mother was Child's mother and Mr. Faison was her father. In the months that followed, Mr. Faison and his family maintained a relationship with Child. But he came over time to suspect he wasn't Child's father after all, the relationship ceased, and these child support proceedings ensued.

         In response to the Montgomery County Office of Child Support Enforcement's ("MCOCSE" or the "Office") complaint against him, Mr. Faison denied formally that he was Child's father, and requested a blood test to determine paternity. The Circuit Court for Montgomery County denied his request, finding the affidavit had created a presumption of parentage and that he had not borne his burden of proving that he signed it as a result of fraud, duress, or a material mistake of fact.[1] He appeals on two grounds: first, that the circuit court erred when it denied his Motion for Genetic Testing, and second, that the circuit court erred by failing to consider whether he met his burden of proving a material mistake of fact. We agree with his first contention and reverse so that he can pursue the second on remand.

         I. BACKGROUND

         Mother and Mr. Faison met at Salisbury University. They first had sexual relations in mid- to late July 2014, returned to college in August, and began dating exclusively in late September. On January 14, 2015, Mother texted Mr. Faison and told him she was at least three months pregnant and that he was the father. He believed he was the father after calculating three months from January and determining that the baby was conceived in late September, when they last had unprotected sex. He later testified that learning the baby was due in mid-June 2015 gave him "more reason . . . to believe that [Child] was [his]."

         As it turned out, Child was born a month earlier, on May 15, 2015. Even so, Mother and Mr. Faison signed an Affidavit of Parentage (the "Affidavit") the day after Child was born. The top of the Affidavit stated that "This Affidavit is a legal document and constitutes a legal finding of paternity." (Boldface type in original.) And above the space for his signature, Father acknowledged paternity, under penalties of perjury:

I solemnly affirm under the penalties of perjury that the contents of the foregoing paper are true to the best of my knowledge, information, and belief. I am the natural father of the child named in Part I of this affidavit.

(Emphasis added.) Mr. Faison also was listed as the father on Child's birth certificate.

         Mr. Faison testified that when he signed the Affidavit, he believed he was Child's biological father, and he would never have signed it had he known the actual conception date, which he came later to believe occurred sometime in August, not late September. He testified that two at-home DNA tests excluded him as the father.[2] Although Mr. Faison and his family developed and maintained a relationship with Child from the time she was born until early December 2015, all communication and contact with Mother and Child ceased after that point.

         The Office filed a form complaint against Mr. Faison for child support that relied on the Affidavit to establish parentage. Mr. Faison answered the Complaint and denied that he is Child's father. In addition to the relative timing of their last relations and Child's birth, Mr. Faison attached copies of Mother's separate petition to change Child's name from his to hers, [3] as well as the results from the at-home DNA tests.[4] Along with his answer, Father also filed a Motion for Genetic Testing (the "Motion") that the Office opposed.

         The circuit court held a hearing on the Motion on August 19, 2016. After taking testimony from Mr. Faison, his mother, and Mother, the court found that Mr. Faison had signed the Affidavit and that his signature was not the a result of fraud or misrepresentation, and denied his Motion:

I make the following findings. The child in this case was born in May 2015. There has been lots of testimony here today about [Mother]'s contact with [Mr. Faison]. So [Mother]'s contact with Mr. Faison and also her contact with another gentleman whose last name is Marshall.
The testimony establishes that from the time [Mother] announced that she was pregnant and that she believed Mr. Faison to be the father Mr. Faison and his family participated with the child-well, not the child yet-with [Mother] in an attempt to get to know her and her family and that there were no questions about whether Mr. Faison was the child's father.
* * *
I don't know and I don't think anybody in the courtroom knows exactly when this child was conceived given that the plaintiff and the defendant were involved in a romantic relationship which included sexual relations. I also have evidence from the defendant that when he was presented with the affidavit of parentage at the hospital he signed it. The plaintiff stated that she asked him whether he was sure about this. He says that didn't happen. Either way he signed it.
As we discussed at some length, the affidavit of parentage itself has a series of instructions at the top of the page which are clear about what you should do if you have any questions or there is any possibility that you think you might not be this child's father. And then we get to the fall of 2015 when the paternal grandparents decided that they would have the child tested.
So they got a home kit and they did a test. And then they got another home kit and they did another test and both times the test indicated that Mr. Faison wasn't the child's father. While what I am about to say probably sounds like a ridiculous legal hurdle because of the way the law works and should work with regard to children and parents, and because there needs to be some control over testing gets done, and by whom the court system contracts with an entity to do the testing.
We don't do testing when someone has already acknowledged parentage. This alas until about 30 years ago was the method by which we identified who is a parent was that the woman was pregnant and a man who had been with her took responsibility or sometimes didn't and once in a while there had to be a proceeding, a trial, but often what happened is the woman was left in a situation where she had a baby that couldn't be identified-whose father couldn't be identified. ...

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