Turner v. Whisted

607 A.2d 935, 327 Md. 106, 1992 Md. LEXIS 118

• Court: Court of Appeals of Maryland
• Decided: June 22, 1992
• Docket: 52, September Term, 1991
• Status: Published

Opinions

CHASANOW, Judge.

On March 8, 1986, Kelly Whisted (Kelly) gave birth to a son and named him Jeffrey. Approximately five and a half months prior to Jeffrey’s birth, Kelly married Danny Whist-ed (Danny). Before her marriage, Kelly was also involved in a relationship with William Turner (Turner). Jeffrey was conceived during the time Kelly was seeing Turner, and Kelly, on at least two occasions, wrote to Turner that he was her child’s father. Despite these letters, Jeffrey was given the Whisted name and Danny Whisted was listed as father on Jeffrey’s birth certificate. Six months after Jeffrey was born, Kelly left her husband and renewed her relationship with Turner. Despite the separation, Danny continued to visit Jeffrey on a regular basis and to pay support for his care and maintenance.

The relationship between Kelly and Turner continued for eighteen months, during which time Turner appears to have developed a relationship with Jeffrey. When Kelly and Turner broke up once again, Turner’s contact with Jeffrey ended. Turner then filed a “Complaint for Visitation” in the Circuit Court for Harford County, naming Kelly Whist-ed as defendant and seeking visitation with Jeffrey. Pursuant to Maryland Code (1974, 1991 Repl.Vol.), Estates and Trusts Article, § l-206(a), which provides that “[a] child born or conceived during a marriage is presumed to be the legitimate child of both spouses,” Jeffrey is presumed to be the legitimate child of Danny Whisted. Apparently recognizing this presumption, Turner later amended his complaint naming Danny Whisted as an additional defendant.

In addition, Turner filed a “Motion for Blood Test” to establish that he was Jeffrey’s biological father. The Whisteds, each by separate counsel, filed a Motion to Strike Turner’s Motion for Blood Test. The circuit court assumed Turner’s request for blood tests to be pursuant to Md.Code (1984, 1991 Repl.Vol.), Family Law Art., § 5-1029, (Family Law Article, Title 5, Subtitle 10 will hereinafter be referred to as the “paternity statute”). The court ruled that mandatory blood tests under § 5-1029 were not available to Turner for the purpose of rebutting Jeffrey’s presumed legitimacy. Consequently, the court denied Turner’s motion for blood tests and granted the Whisteds’ motions to strike.

Thereafter, Danny Whisted filed a Motion for Summary Judgment on the ground of laches, in which Kelly Whisted joined. The circuit court granted the motion and Turner appealed to the Court of Special Appeals. The intermediate appellate court, in an unreported opinion, disagreed with the circuit court’s dismissal of the action by summary judgment, finding that the issue of “whether [Turner had] delayed too long in seeking visitation was very much in dispute.” Accordingly, that court remanded the case to the circuit court for a resolution of the conflicting evidence related to the extent of Turner’s delay in bringing his action.

The Court of Special Appeals then looked to the remaining issue of whether Turner was entitled to have all of the parties submit to a blood test. Viewing the Motion for Blood Test in the same posture as did the circuit court, the intermediate appellate court agreed that Turner “may not initially use the blood test provisions of the paternity statute to overcome the presumption of legitimacy of the child herein.” We granted Turner’s petition for writ of certiorari to determine:

“Whether a male individual who claims to be the father of a child born to a married couple is entitled to petition a circuit court for a blood test to determine paternity for the purpose of determining whether said male individual is the biological father of the child when the child was conceived prior to the marriage of said married couple.”

Initially we note that neither Turner’s Complaint for Visitation nor his Motion for Blood Test contains a single reference to the paternity statute. Indeed, as a result of the State’s Attorney’s refusal to consent to Turner’s action under the paternity statute, Turner invoked the equitable powers of the court to grant visitation. As grounds for his Motion for Blood Test, Turner cites § 1-208 of the Estates & Trusts Article and this Court’s opinion in Thomas v. Solis, 263 Md. 536, 283 A.2d 777 (1971). Md.Code (1974, 1991 RepLVol.), Estates & Trusts Art., § 1-208 provides in relevant part:

“(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 child of his father only if the father

(1) Has been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings; or

(2) Has acknowledged himself, in writing, to be the father; or

(3) Has openly and notoriously recognized the child to be his child; or

(4) Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.”

In Thomas, an unwed father, wishing to protect his visitation rights and to assure entitlement to notice of any attempted adoption of the child, sought a declaratory judgment that he was the child’s natural father. This Court held that compliance with any of the four methods set forth in § 1-208 of the Estates & Trusts Article was sufficient to achieve this end. 263 Md. at 544, 283 A.2d at 781.

Referring to § 1-208 of the Estates & Trusts Article, we have on several occasions

“indicated that a ‘liberal interpretation’ of our legitimation statute was essential; that it was ‘not limited in its scope and application to matters of inheritance only’ but was legally sufficient ‘to establish other rights, ... arising from the relationship existing between parent and legitimate issue,’ ... and that the status sought by the father was afforded to him by compliance with the legitimation statute.”

Bridges v. Nicely, 304 Md. 1, 7-8, 497 A.2d 142, 145 (1985), quoting Thomas, 263 Md. at 542, 283 A.2d at 780. See also Dawson v. Eversberg, 257 Md. 308, 262 A.2d 729 (1970). Consequently, we believe that Turner, alleging that Jeffrey was a child “born to parents who have not participated in a marriage ceremony with each other,” quite properly cited § 1-208 of the Estates & Trusts Article as a basis upon which he could seek to establish his status as Jeffrey’s natural father.

Most recently in Taxiera v. Malkus, 320 Md. 471, 578 A.2d 761 (1990), this Court implicitly recognized that paternity could be established by a statutory action in a paternity proceeding under the Family Law Article or in an equitable action under the Estates & Trusts Article. In Taxiera, we noted the reciprocal references in the two articles. Section 5-1005 of the Family Law Article states: “An equity court may determine the legitimacy of a child pursuant to § 1-208 of the Estates & Trusts Article.” Conversely, § 1-208 provides that one way to legitimize a child is if the father “[h]as been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings.” 320 Md. at 478-79, 578 A.2d at 764. Thus, the legislature offered a choice of actions by which one could seek to establish paternity.

Indeed, over two decades earlier, the Court acknowledged that one might seek a declaration of paternity under either the paternity statute or in equity. In Shelley v. Smith, 249 Md. 619, 241 A.2d 682 (1968), the Court could

“see no reason why the child’s rights to inherit from M should in any respect depend on whether M’s paternity was established in a paternity proceeding pursuant to [the paternity statute] or in an equity proceeding like the case at bar. And if that be so then the rules of evidence controlling the proof of paternity ought to be the same in either case.” (Emphasis added).

Id. at 630, 241 A.2d at 688. See also Staley v. Staley, 25 Md.App. 99, 103-04, 335 A.2d 114, 118, cert. denied, 275 Md. 755 (1975). Consequently, we believe that § 1-208 of the Estates & Trusts Article provides an alternate avenue by which one could seek blood tests for the purpose of establishing paternity.

For the reasons set forth below, in those cases where two men each acknowledge paternity of the same child, we believe that an action to establish paternity is more appropriately brought under the Estates & Trusts Article. As advanced by this Court in Thomas and Dawson, the Estates & Trusts Article presents the “more satisfactory” and “less traumatic” means of establishing paternity. Thomas, 263 Md. at 544, 283 A.2d at 781; Dawson, 257 Md. at 314, 262 A.2d at 732. In Turner’s attempt to establish paternity under the Estates & Trusts Article, he had to rebut the presumption that Jeffrey was the legitimate child of Kelly and Danny Whisted. See Md.Code (1974, 1991 Repl.Vol.), Estates & Trusts Art., § 1-206. A motion for blood tests made under the Estates & Trusts Article is best analyzed as a request for a physical examination under Maryland Rule 2-423,¹ and the court has discretion to grant or deny the blood tests.

As a discovery request, the court may order the blood tests on motion for good cause shown. The Whisteds’ legitimate interests in privacy must be considered along with Turner’s relationship with Jeffrey. In Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91, reh’g denied, 492 U.S. 937, 110 S.Ct. 22, 106 L.Ed.2d 634 (1989), the Supreme Court was presented with a factual situation analogous to the instant case. While married to Gerald D., Carol D. had an adulterous affair with Michael H. and sometime later a child, Victoria, was born. Michael H. and Carol D., without Gerald’s knowledge, had blood tests performed which conclusively established that Michael H. was Victoria’s biological father. Michael H. filed an action to establish paternity and for visitation. A California statute created a conclusive presumption that a child born to a married woman living with her husband is a child of the marriage, and the statute denied Michael H. the right to prove he was Victoria’s father. Michael H. contended the California statute violated his due process rights by denying him the opportunity to rebut the presumption of legitimacy. A majority of the Supreme Court upheld the California presumption and held Michael H. had no constitutionally protected right to establish his paternity of Victoria. In a plurality opinion authored by Justice Scalia and joined by Chief Justice Rehnquist, and in part by Justice O’Connor and Justice Kennedy, the Court noted that there was a common law presumption of legitimacy and that society has historically protected the integrity of the marital family unit from claims of paternity by other men. The rationale was based on the promotion of family harmony, as well as a reluctance to declare the children of a married woman illegitimate. 491 U.S. at 125, 109 S.Ct. at 2343, 105 L.Ed.2d at 107. The opinion further pointed out that “to provide protection to an adulterous natural father is to deny protection to a marital father, and vice versa.” ² 491 U.S. at 130, 109 S.Ct. at 2345, 105 L.Ed.2d at 110.

Justice Brennan in a dissenting opinion noted that “[f]ive Members of the Court refuse 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 cohabiting with another man at the time of the child’s conception and birth.’ ” 491 U.S. at 136, 109 S.Ct. at 2349, 105 L.Ed.2d at 114 (dissenting opinion). Justice Brennan pointed out that on four prior occasions, the Supreme Court had considered whether unwed fathers have a constitutionally protected interest in a relationship with their children. See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). Justice Brennan observed that these cases

“produced a unifying theme: although an unwed father’s biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will 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 Clause.’ ” (Citations and footnote omitted.)

Michael H., 491 U.S. at 142-43, 109 S.Ct. at 2352, 105 L.Ed.2d at 118-19, quoting Lehr, 463 U.S. at 261, 103 S.Ct. at 2993, 77 L.Ed.2d at 626, in turn quoting Caban, 441 U.S. at 392, 99 S.Ct. at 1768, 60 L.Ed.2d at 307.

We believe that a trial court ought to be able to consider and balance the different interests that were separately recognized by the majority and the dissent in Michael H. A discovery request for blood tests allows the court to weigh these competing interests. Most significantly, the determination of good cause allows the court discretion to consider the best interests of the child. Matter of Marriage of Ross, 245 Kan. 591, 783 P.2d 331, 338 (1989) (“Prior to ordering a blood test to determine whether the presumed parent is the biological parent, the district court must consider the best interests of the child____”); McDaniels v. Carlson, 108 Wash.2d 299, 738 P.2d 254, 261 (1987) (where child is presumed legitimate, best interests of the child should be considered before ordering blood tests).

While Jeffrey is not a party to the action, Rule 2-423 permits the physical examination of a party ór a “person in the custody or under the legal control of a party.” Consequently, the court might even appoint counsel to represent Jeffrey’s interests if it believes that those interests might be compromised by the blood test. If Jeffrey’s best interests would be jeopardized by submitting to a blood test, the child’s representative may then request a protective order.

The criteria for determining the child’s best interests in cases of disputed paternity include consideration of the stability of the child’s current home environment, 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. Ross, 245 Kan. 591, 783 P.2d at 338; McDaniels, 738 P.2d at 262. Finally, other factors might even include the child’s ability to ascertain genetic information for the purpose of medical treatment and genealogical history.

On remand, the trial court should consider the extent of Turner’s commitment to the responsibilities of parenthood, and balance his interest in establishing his status as Jeffrey’s natural father against the Whisteds’ interest in protecting the integrity of the familial relationships already formed. This balance of interests should be considered in connection with the court’s paramount concern of protecting Jeffrey’s best interests.

Turner’s motion for blood tests of all parties is impeded, but not absolutely precluded, by the presumption that Jeffrey is the legitimate child of Danny Whisted. Not being prohibited from granting the motion solely because of the presumption of legitimacy, the trial court could have, and should have, held a hearing to determine whether ordering the blood tests would be contrary to Jeffrey’s best interests. See Traci Dallas, Rebutting the Marital Presumption: A Developed Relationship Test, 88 Colum.L.Rev. 369, 383 (1988) (“All putative fathers should be afforded a preliminary hearing to determine whether [a developed] relationship exists.”) Accordingly, the Court of Special Appeals was in error in its determination that blood tests could not be used to rebut the legitimacy presumption. The issue of laches is not before us.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR HARFORD COUNTY AND TO REMAND THE CASE TO THE CIRCUIT COURT FOR HARFORD COUNTY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO BE PAID ONE-HALF BY THE PETITIONER AND ONE-HALF BY THE RESPONDENT.

ELDRIDGE, J., concurs in part and dissents in part, in which McAULIFFE, J., joins.

1 . Blood tests are clearly a permissible discovery request under Maryland Rule 2-423. Former Maryland Rule 420, from which 2-423 was derived, provided that the court may order an examination "[wjhenever the mental or physical condition or the blood relationship ... is material____” (Emphasis added). Present Rule 2-423 permits the court to order an examination “[w]hen the mental or physical condition or characteristic of a party or of a person in the custody or under the legal control of a party is in controversy____” (Emphasis added). The amendment is explained in the Eighty-second Report of the Standing Committee on Rules of Practice and Procedure:

“This Rule is enlarged to cover characteristics, as well as conditions. The Committee believes this change is appropriate in light of the sophisticated testing procedures now available. ‘Characteristics’ includes, but is not limited to, a person's blood group."

Maryland Register, Vol. 10, Issue 10, Page S-2 (May 13, 1983).

2 . It has even been suggested that to grant all putative fathers an absolute cause of action to rebut the marital presumption would interfere with the constitutionally protected right to "family integrity’ of the husband, wife, and child. See Traci Dallas, Rebutting the Marital Presumption: A Developed Relationship Test, 88 Colum.L.Rev. 369, 372-77 (1988).