Paternity and Unmarried Parents

Unmarried parents have the same rights and obligations toward their child as married parents. What differs is the starting point: legal parentage has to be established before a court will decide custody, access or support. That is the first step, not a formality to be handled later.

The marital presumption

If the mother is married at the time of the child’s conception or birth, Maryland law presumes her husband is the child’s father. The presumption can be challenged, but it is the legal starting position and it carries real weight.

The Affidavit of Parentage

For unmarried parents, the simplest route is a voluntary Affidavit of Parentage signed by both. It is usually offered at the hospital at birth and can be signed any time before the child turns 18. Once signed and filed it is a legal finding of parentage; no court case is needed.

Two things about it are worth knowing before anyone signs.

• There is a 60 day window to rescind. A signer can cancel the affidavit within 60 days using the rescission form.
• After that window it takes a court. Setting the affidavit aside later requires proof of fraud, duress or material mistake of fact.

If there is genuine doubt, resolve it before signing rather than after. Signing an affidavit about a child who may not be yours creates an obligation that is difficult to undo.

When paternity is disputed

Either parent, or the State’s child support office, can start a case. Where parentage is contested the court orders genetic testing, normally a cheek swab, with results in roughly four to six weeks. A result showing a statistical probability of at least 97.3 percent is admissible as evidence of paternity. A man who refuses testing can be compelled to submit to it.

What follows from establishing parentage

Once parentage is established, everything else becomes available:

• Legal custody and physical custody are decided on the best interests of the child, using the same factors as in any other case. Unmarried fathers do not start from behind.
• Child support is calculated under the same guidelines.
• The child gains inheritance rights, and access to benefits such as health insurance and Social Security through that parent.
• The child’s medical and family history is complete on both sides.

A common and expensive mistake

Paying support informally, without an order, does not establish parentage and does not protect a father’s relationship with the child. Nor does being named on the birth certificate always settle the legal question on its own. If you want enforceable access, establish parentage and get an order. See parenting plans.

Support can be ordered retroactively

A support obligation does not necessarily start on the day the case is filed. Courts can reach back, which is a reason for both parents to address the question sooner rather than later.

Related

• Custody factors
• Custody FAQ
• Enforcing and modifying orders

Official resources

• Maryland People’s Law Library, paternity
• Maryland Department of Human Services, establishing paternity

Talk with a Towson attorney

The Law Office of Thomas K. Mallon, LLC offers a free consultation. Call (410) 847-9075 or request a consultation online. The office is at 1107 Kenilworth Drive, Suite 305, Towson, MD 21204.

This page provides general information about Maryland law. It is not legal advice, and reading it does not create an attorney-client relationship. Maryland law changes, and how it applies depends on the facts of your situation.