Paternity

When meeting with clients initially and discussing the general course of litigation, I will advise them that discovery is part of that process, which usually prompts many questions. First and foremost is what is discovery? Discovery is a litigation tool used to gather and exchange relevant information and potential evidence from and with the opposing side prior to a trial. In a divorce matter it most frequently consists of Interrogatories, Request for Production of Documents, and Depositions of parties and witnesses. However, discovery may also involve Request for Admission of Facts, Notice of Records Depositions, and/oror Mental or physical Examinations of parties. Interrogatories are a list of a maximum of thirty questions usually involving employment history, lifestyle, assets, marital and non-marital property, child rearing responsibilities, and reasons for the dissolution of the marriage. Request for Production of Documents are a list of requests asking for documents from a party. These usually consist of financial documents, employment records, documents regarding the children, documentation of communications with the other party, documentation of expenses/debt and documents regarding the parties’ assets.

Many clients question why these documents need to be exchanged as they feel it is an invasion of their privacy. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets or have withheld discoverable information from the other. Further, client’s must know that if you or the opposing party makes a request or raises a particular issue in a matter, then the issue must be explored. The old adage “what is good for the goose is good for the gander”, often applies in these situations. If a document is requested that is particularly confidential in nature or for some reason should not be turned over to opposing counsel, clients can seek protection of that document by filing a motion with the court. If the opposing side is not turning over their documents and answers in a timely fashion then one may file a motion with the court asking them to compel these documents or to prohibit that party from entering any evidence regarding same at trial. If a party tries to introduce a document at trial that was not turned over to the other side prior to the hearing then the Judge may prohibit it from being entered into evidence. The discovery process is governed by the Maryland Rules commencing with Rule 2-401. Clients should also understand that while all pleadings in a matter are filed with the court, the discovery requests and responses are not. The court will not see the Answers to Interrogatories or Responses to Request for Production of Documents unless they are admitted in evidence at a trial.
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On September 21, 2009, the Maryland Court of Appeals issued an opinion holding that the Circuit Court for Garrett County had erred in ordering a paternity test for a child without first considering the child’s best interest. The case, Kamp v. Department of Human Resources, began when Darren Kamp, the father of four children with ex-wife, Vicki Duckworth, requested a paternity test for his fourth child after his ex-wife filed a motion to increase child support. The parties had been married for 16 years, had three children whose paternity was not questioned, but then had a fourth child after Darren had had a vasectomy. During the divorce proceedings in 1999, Darren agreed that he had four children.

The trial court, after ordering paternity testing that found that Darren was not the father of the fourth child, denied Vicki’s motion to increase child support and further terminated Darren’s child support obligation. The Department of Human Services appealed the trial court’s ruling, arguing that Darren could not contest paternity. Maryland’s highest court’s judges all agreed that trial court erred in ordering the test and terminating support, but disagree on their reasoning why. Three of the judges would base their decision on Darren’s 13 year delay in challenging paternity of the child, while the other four judge’s base their decision on the trial court’s lack of consideration of the best interest of the child before ordering the test.

The law in Maryland states that “there is a rebuttable presumption that the child is the legitimate child of the man to whom its mother was married at the time of conception.” Maryland Code, Family Law 5-1027. The issue of paternity often arises during a divorce when there are adultery allegations. Based upon this new ruling, if the putative father is unsure he is the biological father, it is his burden at the divorce stage to pursue and resolve the issue. The failure to do so could mean he is financially obligated to support the child until child support would otherwise terminate.
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Articles Posted in Paternity

Discovery in Maryland Divorce Matters

Recent Maryland Court of Appeals Ruling on Paternity