Appeals case raises paternity questions; Husband who learned that twins are not his fights support ruling

THE BALTIMORE SUN

Several years before the Valentine's Day 1986 wedding, he had a vasectomy. She knew that.

Several weeks after the wedding, she had a one-night stand with a stranger. He didn't know that.

When the twins were born, his doubts about having fathered them aside, he raised no objection to his name on their birth certificates. He raised them for a decade -- even after the truth about infidelity and his doubts about paternity surfaced, when the twins were 5 1/2.

But now, as the Glen Burnie couple divorce, the state's highest court is grappling with whether he can be forced to pay child support.

Attorneys who specialize in family law are closely watching the case, which was argued last week in the Court of Appeals. While this is not the first time the court has looked at the issue of child support involving nonbiological or adoptive parents, this case raises new questions about how far the court might go in favoring a child's interests over those of an adult.

This case is unusual because a lower court has ruled that the man the twins know as their father is not their parent but ordered him to pay child support anyway. However, that court encouraged him appeal to the higher court to clarify the law.

The Sun is withholding names to protect the children, who do not know the truth about their paternity.

"They could make [a] new law," the wife's attorney, John J. Ryan, said in an interview. "They ought to say if you go down that road, you have to commit to going all the way down that road. You can't act as that child's parent and walk away when it's no longer convenient."

Appearing before the court, Ryan argued, "If you look like the father, you act like a father, you tell the children you are the father, you tell other people you are the father, then you are the father."

He posed the question: "After 10 1/2 years, why shouldn't he be held to child support?"

Because he's neither the biological nor adoptive father, said the husband's attorney, Michael J. Lay. "You talk to people, and they say, 'How could you be held responsible for a child that isn't yours?' " Lay said. "It's not fair. There is a responsible party that was not standing in the courtroom."

Lay argued that stepfathers and live-in lovers could find themselves saddled with support payments if the top court rules to order support in this case. "Those stepparents are going to be looking over their shoulders," he said, arguing that they might insist on prenuptial disavowals for children the wife had before the marriage.

"I think the danger in this case is that it doesn't [define] responsibility in situations in our society that have become more prevalent," he said.

In a landmark 1986 case similar to this one, a divided Court of Appeals looking at economic harm ruled that the mother should seek child support from the biological father. His identity was known in that divorce case.

In this case, the biological father's identity is not known. The man who brought them up is the only "father" they have known.

"How convenient for her," said Lay, the father's attorney, pointing to that ruling as bolstering his arguments. "Are we going to find responsibility in a third party, because she can't remember a name because she was inebriated?"

In Maryland, as in some other states, other challenges have resulted in rulings that said whether a man is the biological or adoptive father is irrelevant, said Jane C. Murphy, director of the Family Law Clinic at the University of Baltimore School of Law.

Experts say the idea in many states is to protect the child -- often by insisting on a prompt legal challenge to paternity or by laws that look to the reality of the situation instead of blood tests.

"Biology is just one aspect of paternity," said Ira Mark Ellman, a visiting law professor at the University of California at Berkeley and author of the top-selling casebooks on family law. "To upset the social reality makes no sense."

Men who assume the roles of fathers -- even if that is a fiction -- can't simply change their minds years later, Maryland courts said in later rulings.

In a 1992 case, the Court of Appeals ruled that lower courts must examine interests of the children before ordering paternity testing. If a judge finds the children could be harmed -- in one instance, a child attempted suicide after learning of his illegitimacy -- testing may not be performed, and the people who acted as fathers must remain responsible for support, experts said.

In a 1994 Maryland case, two men asked to stop paying child support after several years because they belatedly learned they had not fathered the children. They were turned down by the Court of Appeals, which ruled that they missed their 30-day window to challenge paternity and said that prolonged paternity battles could leave children fatherless and without financial support.

All of which, said attorney Stephen P. Krohn, a family law expert, may not be fair to the men.

The state has an interest in the legitimacy of children and a desire not to see the children on welfare rolls or as wards of the state, experts said. Many men might be unaware that if they don't challenge paternity promptly, the right might evaporate.

"I think the whole concept is unfortunate," Krohn said.

In previous generations, the issue rarely arose in courts because of stigma and less sophisticated medical technology, said attorney Paula J. Peters, a family law expert. Complex genetic testing didn't exist, making it nearly im- possible for a man to claim successfully that a child was not his.

"It was such a horror to create" an illegitimate child, Peters said. A husband would be too proud to acknowledge he had been cuckolded. A woman would be scorned. Illegitimacy disgraced children.

In the current case, the wife said nothing about the fling. The husband didn't know she had sex with anyone but him. She has said she's unsure of the real father's name and where he lived.

The girls were born on Christmas Day 1986. Although he had doubts about his daughters' paternity, the husband did not object to his name on the birth certificate and took on the role of father. He said that, although he was emotionally tormented, he continued to act as the children's father.

Then he had an affair. The marriage soured, and the couple separated in 1997. He sought genetic testing to prove whether he was the twins' biological father. She responded with an affidavit acknowledging he was not the biological father, and last year, an Anne Arundel County Circuit judge signed an order stating that the husband was not the father -- something the twins do not know.

After the hearing Dec. 7, Judge James C. Cawood Jr. wrote that he was concerned about the children and ordered support. While Cawood encouraged the husband to appeal to clarify the law about children born during, but not from, a marriage, he wrote that he hoped the husband would continue his role as father to the girls as he had during the marriage.

He has not.

"You can never make somebody act like a father," Krohn said.

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