Ruling limits paternity tests Mother may not challenge father in custody case.

September 06, 1991|By Glenn Small | Glenn Small,Evening Sun Staff

A mother who misleads her husband into thinking he's the father of her child cannot later demand a blood test during a custody dispute, Maryland's Court of Special Appeals has ruled.

The opinion by the state's second-highest court reverses the decision by a Baltimore County Circuit Court judge who allowed such a blood test into evidence, then denied custody to the husband based on that test.

The test showed that the husband, a Timonium resident, was indeed not the biological father of the daughter his wife had told him was his for five years. The names of the couple were withheld in this story to protect the child.

The wife should be prevented from being able to "bastardize the child," the court wrote in a 12-page opinion, because it would harm both the father and daughter.

The Timonium man is "is the only father the child has ever known," the opinion said. "The strong father-daughter bond that has existed for five years will be broken" and both father and child "will suffer great emotional loss."

"We're pleased with the way it turned out," said Ann McKenrick Turnbull, attorney for the husband. "But we're very unhappy with the damage that's been done to both sides."

The wife, who represented herself before the Court of Special Appeals, can now ask the Court of Appeals, the state's highest court, to review the case. It can accept or reject such requests.

The woman, who now lives in Memphis and has an unlisted telephone number, could not be reached for comment.

Robert M. Winegrad, an attorney who represented her until she no longer could afford to pay him, said yesterday the decision unfairly puts the woman on equal footing with a man who is not the child's real father.

"There's no question that he is not the father," said Winegrad. "It doesn't matter what you say, he's not the father."

But the Court of Special Appeals, relying on similar cases in Rhode Island and New York, said that because the husband thought he was the father and acted as the father for a lengthy period of time, he should be treated as the child's legitimate father.

The couple met and began dating in the fall of 1984, according to court records. In early 1985, she told him she was pregnant and he was the father.

Initially skeptical, he was persuaded he was the father after the woman took a "voice stress analysis,"something akin to a lie-detector test, records show.

They moved in together, the child was born in December 1985 and they married in May of 1988. A year later, they voluntarily separated and agreed they would share custody.

The wife asked for and received child support payments, but in the spring of 1990, she left the state with her boyfriend, taking the daughter with her.

A judge ordered her to bring the child back to Maryland and granted temporary custody to the husband, pending a full hearing. At that point, the woman raised the paternity question and sought the blood test.

The biological father never has come forward and no one, not even the woman, is sure where the man is, said Turnbull.

It's the first time a Maryland court has decided such a case, said Turnbull, adding that more accurate paternity blood tests have made the issue more prevalent.

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