Court allows blood test in custody case

March 27, 1993|By Norris P. West | Norris P. West,Staff Writer

A woman may use blood test results during a custody battle to prove that her estranged husband is not her child's biological father, the Maryland Court of Appeals ruled yesterday.

The unanimous decision by the state's highest court overturned a previous decision by the Maryland Court of Special Appeals.

The intermediate court had disallowed the use of blood test results in the case of a woman whose estranged husband sought custody of her daughter even though he is not the girl's natural father.

The Sun is withholding the names of both parties to protect the girl's identity.

When the woman became pregnant in 1985, she misled the man into believing he was the father.

The man gained temporary custody of the girl when the mother left the state during the court battle. The girl, now 7, lives with him in Timonium.

The woman, who now lives in Memphis, Tenn., has tried to gain permanent custody by using the blood test results to prove the man is not the father. She was thrilled by yesterday's ruling.

"I'm packing," the woman said after learning of the decision. She said she is engaged to a man in Tennessee who is ready to adopt the girl after the woman is divorced and the custody battle ends.

"What we'd really like to do is get back to normal and get the courts out of our lives," she said yesterday.

The court's decision, written by Judge Robert M. Bell, said it was concerned about the child's best interest. The court noted the man's role in her life before ruling against him.

"He was present in the delivery room when she was born and he lived with her and her mother, with the exception of a period of separation," Judge Bell wrote. "He has, in short, treated the child as if she were his biological child from the time of her birth up to, and beyond, the determination" that she is not.

A Baltimore County master ordered the man to submit to blood tests and allowed the results into evidence. A Circuit Court judge upheld that decision. In 1991, the state's second highest court ruled against use of the blood tests.

The high court's ruling yesterday sent the case back to the Circuit Court, which will make the custody decision. The man will be designated a "third party" in the dispute against the woman as a natural parent.

The man still has a chance to retain custody, said his lawyer, Ann M. Turnbull.

The fact that the girl has lived with him the past two years should weigh in his favor, she said.

Ms. Turnbull said the man regards the girl as his daughter, despite his awareness that he is not her biological father.

The man could not be reached for comment.

The child's mother said she believes her estranged husband "truly does think of her as his child.

"Mentally, he wanted so much to believe that he was the father," she said.

"But he has known from the time she was 3 1/2 years old that she was not his."

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