Tuesday, May 12, 2015


In a recent decision, the Maryland Court of Special Appeals held that an individual was obligated to pay child support for two children even though the children were not his. 

In Davis v. Wicomico County, Jessica Cook gave birth to twin boys.  Shortly after the birth of the twins, Ms. Cook and her boyfriend, Justin Davis, signed an “affidavit of parentage” at the hospital.  (Such affidavits are signed when the mother is not married.)  By this affidavit, Ms. Cook and Mr. Davis affirmed that they were the children’s parents.

Ms. Cook may have been the mother of the children but Mr. Davis later found out that he was not the father.  Although she knew Mr. Davis was not the father, Ms. Cook sought child support from him.   Mr. Davis, of course, opposed Ms. Cook’s efforts for child support and asserted that he was not responsible to pay child support since the children were not his.  (This sounds like a reasonable argument to me.) 

Mr. Davis requested a paternity test but his request was denied by the Court.  Relying upon the Affidavit of Parentage that he signed at the hospital, the Circuit Court held that because Mr. Davis had affirmed that he was the father of the children at the time they were born and he did not rescind his affidavit within 60 days of signing it (as provided for by statute), the issue of parentage could not be re-litigated by him. 

The Court of Special Appeals affirmed the trial court’s decision.  As a result of the decision, Mr. Davis is now obligated to pay child support for two children who are not his.  All because he signed an affidavit of parentage at the hospital.

The take away from this decision:  do not sign an affidavit of parentage at the hospital unless you know you are the children’s father.  The assertion contained in the affidavit that you are the parent of the child will be binding upon you unless you rescind the affidavit within sixty days of its execution, unless you can prove, fraud, duress or material mistake of fact.   (How’s this for fraud:  “She lied to me and I believed her.”  Or material mistake of fact:  “She told me I was the father and I believed her.”)

Although the Court’s holding may be technically correct based upon the applicable statute and the procedural history of the case, it is grossly inequitable.  It requires an individual who is not the father of two children to be responsible for their support for roughly 18 years.  The legislature should look at this issue next session and amend the applicable statute to prevent a recurrence of the inequity that occurred in this case.

The Maryland Department of Human Resources encourages new mothers to have the putative fathers sign the affidavit of parentage at the hospital.  From the DHR website, “Right after your baby is born, you can encourage the father to start the paternity process by signing the Affidavit of Parentage while you are still in the hospital. . . . The hospital staff can help you complete the form free of charge. They can even act as your witness. . . .The hospital staff will send the Affidavit to the Division of Vital Records.”  DHR’s website also proclaims that “Paternity Establishment is Important!”  That may be true but I think it is more important for the state to determine paternity correctly and when paternity is determined in error, to provide a mechanism to correct it.

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