In Maryland, a child born or conceived during marriage is presumed to be the legitimate child of both spouses. See Maryland Estates & Trust section 1-206(a). Often times, the husband suspects or knows that he is not the biological father of a child born during the marriage. If the husband raises the child as if he were the father, it will be extremely difficult for the husband to disavow paternity and evade paying child support, if and when the parties separate.
The Court will deny the husband the right to conduct paternity testing in a custody or child support case, unless it is in the best interest of the child to establish that the husband is not the biological father. Maryland courts typically deny a husband’s request for paternity testing, because courts believe that it would be unfair for the child to lose the only father he or she has ever known. For the same reason, Maryland courts routinely deny a wife’s request for paternity testing in order to prove that the husband is not the biological father.
However, the court is likely to order paternity testing for a married couple when a putative father (a man not married to the mother) is willing to assume the responsibility of raising the child with the mother and paying child support.
(If the mother is unmarried, then both the mother and the putative father have the right to request paternity testing during a child support or custody case, because there is no presumption as to who is the biological father of a child born to an unmarried mother).
What steps should a husband take if he suspects that he is not the biological father of a child born by his wife? He should immediately conduct private paternity testing. If the DNA test establishes that the husband is not the biological father of the child, he should consider the following options: (a) separating from his wife on the grounds of adultery; (b) asking his wife to seek child support from the putative-biological father; and/or (c) entering into an agreement in which the wife acknowledges that the husband is not the biological father of the child and that it would be in the child’s best interest to obtain paternity testing in the event of a separation or divorce.