Fathers may seek DNA tests to reopen paternity cases, Maryland court rules.

In a 4-3 decision, the Maryland Court of Appeals, the state's highest court, ruled in June that genetic or blood tests are available to putative fathers seeking to challenge prior paternity declarations, without consideration of the best interests of the child. (Langston v. Riffe, Nos. 117, 136, 137, 2000 WL 829363 (Md. June 28, 2000).)

Two men who had previously entered into paternity declarations sought to have genetic tests conducted to establish whether they were really the fathers. A 1995 Maryland law, [sections] 5-1038, permits a court to set aside or modify a paternity declaration "if a blood or genetic test done in accordance with [Maryland Code] [sections] 5-1029 ... establishes the exclusion of the individual named as the father in the order."

A circuit court dismissed the men's complaint, refusing to set aside the original paternity declarations.

On appeal, the men both argued that the blood or genetic test requirement of [sections] 5-1029--which provides that any party to a proceeding, upon motion, may have a blood or genetic test performed to determine paternity--applies in a proceeding to set aside a prior paternity declaration. The state, representing the mothers, claimed that a court must first consider the best interests of the child before granting a motion for tests.

The state high court reversed. It found that the "plain language" of the 1995 law precludes courts from considering the best interests of the child in a proceeding to set aside a paternity order. The law provides that "except for a declaration of paternity," a court can modify or set aside any order after considering the best interests of the child. This language is clear that the best-interests standard may only be applied in matters that are corollary to the paternity proceeding, such as visitation or custody rights, the court explained.

Writing for the majority, Judge Dale Cathell noted that the law "originally was to be modified ... to require the best-interests analysis in any attempt to review a prior paternity or paternity-related court order.... Ultimately, that language was amended so that only orders coming out of a paternity proceeding, other than paternity declarations themselves, could be amended" after consideration of the best interests of the child.

Mandatory test

The court also discussed the law's cross-reference to the state's blood or genetic test requirement, which provides that when a party files a motion requesting a test, the court "shall order" the test "to determine whether the alleged father can be excluded as being the father of the child." The word "shall" is evidence that a blood or genetic test is "triggered automatically" once a party, including a putative father, moves for it, the court said.

Cathell wrote, "Given the mandatory statutory language of [this] section ... the `best interests' analysis generally may not be conducted in determining whether to grant a motion for testing."

Moreover, the high court criticized as "illogical" the state's position that the exclusionary testing must have been requested and obtained before the original paternity declaration. If this were so, the court said, there would have been no need for the legislature to enact a law allowing courts to set aside paternity declarations if blood or genetic testing excludes the adjudged father.

In an angry dissent, Chief Judge Robert Bell wrote, "Under the majority view, the trial court is required, mechanically, to order a blood test and thus risk disturbing a legally established paternity judgment, irrespective of the impact the test may have on the child or the child's family life." Bell criticized the majority's interpretation of the law, finding that the law's testing provision should apply to an initial paternity determination, but should not be read to grant an absolute right to anyone to obtain a blood or genetic test.