Faison v. MCOCSE
No. 1486, September Term 2016
Opinion by Nazarian, J.

HEADNOTES

MARYLAND FAMILY LAW ARTICLE SECTIONS 5-1028, 5-1032, 5-1038

A father is entitled to a blood or genetic test on request for the purpose of setting aside a §
5-1032 judicial declaration of paternity or attempting to rescind an affidavit of parentage
under § 5-1028.

MARYLAND FAMILY LAW ARTICLE SECTIONS 5-1028, 5-1038

An order pursuant to § 5-1032 does not preclude an assertion of a right to a genetic test
under 5-1038.

PATERNITY – AFFIDAVIT OF PARENTAGE – MISTAKE OF MATERIAL FACT

An alleged father may request a blood or genetic test to establish a material mistake of fact
in an effort to rescind an affidavit of parentage.
Circuit Court for Montgomery County
Case No. 134567-FL                                 REPORTED

                                      IN THE COURT OF SPECIAL APPEALS

                                                 OF MARYLAND

                                                     No. 1486

                                              September Term, 2016

                                          _________________________


                                            REGINALD FAISON, JR.

                                                         v.

                                      MCOCSE, ex rel KASANDRA MURRAY

                                          _________________________


                                         Nazarian,
                                         Beachley,
                                         Zarnoch, Robert A.
                                         (Senior Judge, Specially Assigned),

                                                        JJ.

                                          _________________________

                                              Opinion by Nazarian, J.

                                          _________________________

                                         Filed: December 4, 2017
         Although it was hardly Reginald Faison, Jr.’s plan, his appeal in this case reprises

Davis v. Wicomico Cty. Bureau, 447 Md. 302 (2016), without the intervening res judicata

question. Throughout KaSandra Murray’s (“Mother”) pregnancy, Mr. Faison believed he

was the father of her child. The day after the baby girl (“Child”) was born, both Mother

and Mr. Faison signed an affidavit of parentage attesting that Mother was Child’s mother

and Mr. Faison was her father. In the months that followed, Mr. Faison and his family

maintained a relationship with Child. But he came over time to suspect he wasn’t Child’s

father after all, the relationship ceased, and these child support proceedings ensued.

         In response to the Montgomery County Office of Child Support Enforcement’s

(“MCOCSE” or the “Office”) complaint against him, Mr. Faison denied formally that he

was Child’s father, and requested a blood test to determine paternity. The Circuit Court for

Montgomery County denied his request, finding the affidavit had created a presumption of

parentage and that he had not borne his burden of proving that he signed it as a result of

fraud, duress, or a material mistake of fact.1 He appeals on two grounds: first, that the

circuit court erred when it denied his Motion for Genetic Testing, and second, that the

circuit court erred by failing to consider whether he met his burden of proving a material

mistake of fact. We agree with his first contention and reverse so that he can pursue the

second on remand.




1
    The court also ordered him to pay child support, a decision not before us in this appeal.
                                 I.     BACKGROUND

       Mother and Mr. Faison met at Salisbury University. They first had sexual relations

in mid- to late July 2014, returned to college in August, and began dating exclusively in

late September. On January 14, 2015, Mother texted Mr. Faison and told him she was at

least three months pregnant and that he was the father. He believed he was the father after

calculating three months from January and determining that the baby was conceived in late

September, when they last had unprotected sex. He later testified that learning the baby

was due in mid-June 2015 gave him “more reason . . . to believe that [Child] was [his].”

       As it turned out, Child was born a month earlier, on May 15, 2015. Even so, Mother

and Mr. Faison signed an Affidavit of Parentage (the “Affidavit”) the day after Child was

born. The top of the Affidavit stated that “This Affidavit is a legal document and

constitutes a legal finding of paternity.” (Boldface type in original.) And above the space

for his signature, Father acknowledged paternity, under penalties of perjury:

       I solemnly affirm under the penalties of perjury that the contents of the
       foregoing paper are true to the best of my knowledge, information, and
       belief. I am the natural father of the child named in Part I of this affidavit.

(Emphasis added.) Mr. Faison also was listed as the father on Child’s birth certificate.

       Mr. Faison testified that when he signed the Affidavit, he believed he was Child’s

biological father, and he would never have signed it had he known the actual conception

date, which he came later to believe occurred sometime in August, not late September. He




                                             2
testified that two at-home DNA tests excluded him as the father.2 Although Mr. Faison and

his family developed and maintained a relationship with Child from the time she was born

until early December 2015, all communication and contact with Mother and Child ceased

after that point.

       The Office filed a form complaint against Mr. Faison for child support that relied

on the Affidavit to establish parentage. Mr. Faison answered the Complaint and denied

that he is Child’s father. In addition to the relative timing of their last relations and Child’s

birth, Mr. Faison attached copies of Mother’s separate petition to change Child’s name

from his to hers, 3 as well as the results from the at-home DNA tests. 4 Along with his

answer, Father also filed a Motion for Genetic Testing (the “Motion”) that the Office

opposed.

       The circuit court held a hearing on the Motion on August 19, 2016. After taking

testimony from Mr. Faison, his mother, and Mother, the court found that Mr. Faison had




2
  Counsel for the Office objected to Mr. Faison’s reference to the DNA results on the
grounds that the at-home tests were not court-approved, but the court permitted the
testimony on the condition that it was admissible “for the purpose of the process and not
for the truth of the matter asserted.”
3
  In her Petition for Change of Name, Mother wrote that “Reginald Faison Jr. is not the
father.” She contended at the hearing that she did this only in response to a letter from Mr.
Faison’s counsel threatening liability for his attorney’s fees if she didn’t. When asked on
redirect whether she believed it would be in Child’s best interest to have contact with her
biological father, Mother testified that Mr. Faison is Child’s biological father. Mother then
stated that Child “knows [Mr. Faison] as her father.”
4
  The DNA Test Report that Mr. Faison submitted notes that the results “may not be
defensible in a court of law for the establishment of paternity . . .” because the samples
were not collected under a strict chain of custody by a third neutral party.
                                              3
signed the Affidavit and that his signature was not the a result of fraud or misrepresentation,

and denied his Motion:

              I make the following findings. The child in this case was born
              in May 2015. There has been lots of testimony here today about
              [Mother]’s contact with [Mr. Faison]. So [Mother]’s contact
              with Mr. Faison and also her contact with another gentleman
              whose last name is Marshall.

              The testimony establishes that from the time [Mother]
              announced that she was pregnant and that she believed Mr.
              Faison to be the father Mr. Faison and his family participated
              with the child—well, not the child yet—with [Mother] in an
              attempt to get to know her and her family and that there were
              no questions about whether Mr. Faison was the child’s father.

                                            ***

              I don’t know and I don’t think anybody in the courtroom knows
              exactly when this child was conceived given that the plaintiff
              and the defendant were involved in a romantic relationship
              which included sexual relations. I also have evidence from the
              defendant that when he was presented with the affidavit of
              parentage at the hospital he signed it. The plaintiff stated that
              she asked him whether he was sure about this. He says that
              didn’t happen. Either way he signed it.

              As we discussed at some length, the affidavit of parentage itself
              has a series of instructions at the top of the page which are clear
              about what you should do if you have any questions or there is
              any possibility that you think you might not be this child’s
              father. And then we get to the fall of 2015 when the paternal
              grandparents decided that they would have the child tested.

              So they got a home kit and they did a test. And then they got
              another home kit and they did another test and both times the
              test indicated that Mr. Faison wasn’t the child’s father. While
              what I am about to say probably sounds like a ridiculous legal
              hurdle because of the way the law works and should work with
              regard to children and parents, and because there needs to be

                                              4
             some control over testing gets done, and by whom the court
             system contracts with an entity to do the testing.

             We don’t do testing when someone has already acknowledged
             parentage. This alas until about 30 years ago was the method
             by which we identified who is a parent was that the woman was
             pregnant and a man who had been with her took responsibility
             or sometimes didn’t and once in a while there had to be a
             proceeding, a trial, but often what happened is the woman was
             left in a situation where she had a baby that couldn’t be
             identified—whose father couldn’t be identified. We don’t do
             it that way anymore but we haven’t quite gotten to the place
             where we test every child at birth.

             So do we test them in the hospital waiting room and whoever
             is there gets tested and it turns out that person is not the father
             we go from there[?] I hope we never get there but we might
             have to because of this kind of situation. It is clear that
             sometime during the year of 2014 up until sometime in the
             summer [Mother] had relations with another man,
             Mr. Marshall, who also goes by BJ. I do not have the evidence
             today to say that Mr. Faison’s acknowledgment of parentage
             of [Child] was the result of fraud or misrepresentation.

             And because this is the case, I cannot order the testing that he
             would like me to order so that he could prove or not that he is
             not the child’s father. So that’s the legal answer. And now the
             practical answer which is that it is clear to me from the
             evidence that I had that your family embraced this child and
             then has not had any contact with her because of a testing
             process that was done outside the legal framework and
             decisions that were made about what that testing meant.

      After a second hearing on child support, Mr. Faison filed a timely notice of appeal.

We will discuss additional facts as necessary below.




                                             5
                                     II.    DISCUSSION

         Mr. Faison raises two issues on appeal.5 First, he argues that he was entitled under

Davis v. Wicomico Cty. Bureau, 447 Md. 302 (2016), to an order for genetic testing and

that the circuit court erred in denying it. Second, he argues that the circuit court erred by

failing to address whether he met his burden of proof of mistake of a material fact. We

review the court’s legal decisions de novo, Walter v. Gunter, 367 Md. 386, 392 (2002), and

review for abuse of discretion the court’s application of the law to the facts, since trial

courts are “in the best position to assess the import of the particular facts of the case and to

observe the demeanor and credibility of witnesses.” Beckman v. Boggs, 337 Md. 688, 703

(1995) (citing Petrini v. Petrini, 336 Md. 453, 470 (1994)).

         A.     Mr. Faison Is Entitled To Genetic Testing.

         First, Mr. Faison argues that the court erred when it denied his motion for an order

authorizing genetic testing, and that he was entitled to a test for the purpose of proving that




5
    Father phrased the issues as follows in his brief:

                1.      DID THE TRIAL COURT ERR IN DENYING
                        FAISON’S MOTION FOR GENETIC TESTING
                        WHEN THE STATUTE MAKES SUCH TESTING
                        MANDATORY UPON REQUEST OF A PARTY?
                2.      DID THE TRIAL COURT ERR BY DENYING
                        FAISON’S MOTION FOR TESTING WITHOUT
                        CONSIDERING WHETHER FAISON HAD SIGNED
                        THE AFFIDAVIT OF PARENTAGE AS A RESULT
                        OF A MATERIAL MISTAKE OF FACT?

                                                6
he signed the Affidavit under the materially mistaken belief that he was Child’s biological

father. The Office counters that he was not entitled to a genetic test because he

acknowledged parentage when he executed the Affidavit, and that he failed to prove that

he signed as a result of fraud, duress, or material mistake of fact. We agree with Mr. Faison

that the governing statutory law, as interpreted by a majority of the judges of the Court of

Appeals in Davis, 447 Md. at 302, entitles him to genetic testing for the purpose of pursuing

claims that he signed the Affidavit as a result of a material mistake of fact and the resulting

declaration of paternity should be set aside.

       The governing statutes are contained in Subtitle 10 of Title 5 of the Family Law

Article (“FL”), titled “Paternity Proceedings.” An executed affidavit of parentage

constitutes a legal finding of paternity. FL § 5-1028(d)(1). An affiant may rescind the

affidavit within sixty days after execution. See id., § 5-1028(d)(1)(i) – (ii). After that, “an

executed affidavit of parentage may be challenged in court only on the basis of fraud,

duress, or material mistake of fact.” Id., § 5-1028(d)(2)(i). Everyone agrees, and the court

found, that neither Mother nor Mr. Faison rescinded the Affidavit within sixty days of its

execution. So, as the trial court explained, the Affidavit established Mr. Faison’s paternity

pursuant to § 5-1028, and Mr. Faison had the burden to show fraud, duress, or a mistake of

material fact if he wanted to rescind the Affidavit. Id., § 5-1028(d)(2)(ii). In addition, a

parent can seek to set aside the declaration of paternity “if a blood or genetic test done in

accordance with § 5-1029 of this subtitle establishes the exclusion of the individual named

as the father in the order.” Id., § 5-1038(a)(2).

                                                7
       Mr. Faison’s Answer disputed that he is Child’s father, and his Motion sought to

satisfy his burden of proving that he was mistaken in believing at the time he signed the

Affidavit that he was Child’s biological father. His answer didn’t allege that Mother

committed fraud, but that Mother later “informed him that he is not the father of the minor

child” and that at-home DNA tests confirmed this.

       The question of an affiant parent’s right under the Family Law Article to genetic

testing for this purpose, and on this posture, came before the Court of Appeals in Davis,

447 Md. at 302. But although all of the opinions in Davis addressed this statutory question,

the case was resolved on res judicata grounds not present here, and the 3–1–3 vote to affirm

the underlying judgment veiled a four-vote majority interpreting the statute to entitle a

putative father, post-affidavit execution, to obtain a genetic test. On its posture, the Davis

concurrence-plus-dissent’s statutory analysis qualifies officially as dicta. Dicta or not, we

agree that the Davis dissent has analyzed the statute correctly, and we will follow its

analysis here. Accord Boone v. Youngbar, No. 465, September Term 2016 (issued Sept.

29, 2017), slip op. at 5–10 (adopting Davis’s concurrence-plus-dissent’s statutory analysis

of the relevant FL sections as “the controlling law of Maryland on this issue”).

       In Davis, the Wicomico County Bureau of Support Enforcement (“Bureau”) filed a

Complaint for Child Support alleging that Mr. Davis was responsible for supporting twin

boys. Like Mr. Faison, Mr. Davis had executed affidavits of parentage when the boys were

born. Appearing pro se, Mr. Davis requested a paternity test and denied parentage of the

children, alleging that his signatures on the affidavits had been obtained through fraud or

                                              8
misrepresentation. The trial judge disagreed, denied Mr. Davis’s request for a paternity

test, and ordered him to pay child support. The trial court based its decision on the affidavit

of parentage and the lack of evidence showing fraud, duress, or mistake of material fact.

Mr. Davis did not appeal that decision. Davis, 447 Md. at 304–05.

       Two years later, with the assistance of counsel, Mr. Davis filed a second complaint

requesting a genetic test under FL § 5-1029 and, assuming that the test confirmed that he

was not the father, asking the court to set aside the declaration of paternity and order of

child support under FL § 5-1038. The circuit court granted summary judgment in the

Bureau’s favor, holding that Mr. Davis was not entitled to a genetic test because the statute

did not permit genetic testing for the purpose of challenging an affidavit of parentage, and

that he was precluded by res judicata from challenging the affidavits or pursuing his claim

for a genetic test. Mr. Davis appealed to this Court, and we affirmed. We concluded that

Mr. Davis’s claims were barred by res judicata, and we found no error on the trial court’s

part. 222 Md. App. 230 (2015). The Court of Appeals granted Mr. Davis’s petition for a

writ of certiorari. Davis v. Wicomico Cty. Bureau, 444 Md. 638 (2015).

       The Court of Appeals ultimately affirmed the judgment. A three-judge plurality

agreed with our conclusions that res judicata barred Mr. Davis’s claims, and that in any

event, a person who has signed an affidavit of parentage does not have an automatic right

to blood or genetic testing pursuant to FL § 5-1028. A fourth judge concurred with the

plurality’s finding that res judicata barred the appeal, and thus formed the majority to

affirm. The concurring judge added, however, that but for the res judicata problem, she

                                              9
would have joined the dissent’s “careful and thoughtful interpretation” of the statutes and

held that Mr. Davis was entitled to a genetic test, because it “would surely be the equitable

result.” Davis, 447 Md. at 336 (Adkins, J., concurring). A three-judge dissent then analyzed

the governing statutes, and concluded, both from the language and structure of the statute

and in light of the legislative history, that Mr. Davis was entitled to a genetic test:

              This case involves construction of the statutes concerning
              genetic tests to prove or disprove paternity—and the
              relationship of those statutes to the statute providing for
              affidavits of parentage. As always, statutes must be construed
              in context. Lockshin v. Semsker, 412 Md. 257, 276, 987 A.2d
              18 (2010) (“the plain language must be viewed within the
              context of the statutory scheme to which it belongs”).
              Accordingly, one must consider the statutory scheme in which
              these provisions appear.

              The provision that pertains to the affidavit of parentage is
              located in Family Law Article, Title 5 (Children), Subtitle 10
              (Paternity Proceedings), Part V (Hearing on Complaint).

                                            ***
              The main provision for genetic tests also appears in Part V:
              “On the motion of the [Child Support Enforcement
              Administration of the Maryland Department of Human
              Resources], a party to the proceeding, or on its own motion, the
              court shall order the mother, child, and alleged father to
              submit to blood or genetic tests to determine whether the
              alleged father can be excluded as being the father of the
              child.” § 5-1029(b) (emphasis added). This language is
              mandatory: when a proper person or entity makes a proper
              motion, the court must order the test.

              It is in Part VI that a key provision, § 5-1038, appears. It
              provides that a declaration of paternity is final except, as
              pertinent here, “if a blood or genetic test done in accordance
              with § 5-1029 ... establishes the exclusion of the individual
              named as the father in the order.” § 5-1038(a)(2)(i)(2). It is

                                              10
notable that such a challenge to a declaration of paternity is
subject to an exception: “a declaration of paternity may not
be modified or set aside if the individual named in the order
acknowledged paternity knowing he was not the
father.” § 5- 1038(a)(2)(ii). This suggests that an individual
who acknowledges paternity—e.g., by executing an affidavit
of parentage—without knowledge that he is not the father may
overturn a finding of paternity with the results of a genetic test.

In the context of this statutory structure, the role of an affidavit
of parentage becomes clear. The provision describing an
affidavit of parentage as constituting a “legal finding of
paternity,” § 5-1028, appears in Part V, which describes the
hearing on the complaint and procedures for proving or
disproving paternity. This placement indicates that an affidavit
of parentage serves to preempt the usual trial process: the
parties can either have a full bench trial, as described in
§§ 5- 1024 through 5-1027, or a party can short-circuit that
process by presenting an affidavit of parentage
under § 5- 1028. In essence, given its location in the statutory
scheme, § 5-1028 appears to be an alternative procedure to
establish legal paternity. Indeed, in this case, the Bureau’s
entire case consisted of submission of the affidavits of
parentage executed by Ms. Cook and Mr. Davis.

Either way, once the hearing is complete, if the court finds that
the alleged father is the father, then the court issues an order
under the provisions in Part VI. This order includes a
declaration of paternity under § 5-1032 and anything else
appropriate under that Part. That is, there are two ways to reach
a declaration of paternity under § 5-1032: a bench trial under
the first four sections of Part V or an affidavit of parentage
under § 5-1028, also in Part V. Both paths lead to the same
destination: a declaration of paternity under § 5-1032.

In this context, the role of § 5-1038 also becomes clear: by its
terms, § 5-1038 provides the grounds for modifying or setting
aside a “declaration of paternity in an order”—that is, a
declaration of paternity in an order under § 5-1032.
Because § 5-1029, which is referenced in § 5-1038, is located
in Part V (Hearing on the Complaint), and Part V describes

                                11
court procedure, it must be possible to request this test during
the court proceedings. Also, because § 5-1038 refers to
“modif[ying] or set[ting] aside” an order, it must be possible to
request this genetic test after the court issues the order, as this
Court has held. See Langston v. Riffe, 359 Md. 396, 754 A.2d
389 (2000) (allowing a genetic test nine years after the court
order).

It may seem strange that the standard in § 5-1038 for setting
aside a judicial order is so different from the standard in § 5-
1028 for setting aside an affidavit of parentage. After all, it is
possible for an alleged father to satisfy the standard in § 5-
1038—he signed the affidavit of parentage believing that he
was the father, but he would like a genetic test now that doubt
has arisen, and the genetic test shows that he is not the father—
even if he cannot meet the standard in § 5-1028 for rescission
of the affidavit—there was no fraud, duress, or material
mistake of fact. The alleged father might have honestly but
mistakenly believed he was the father without legally meeting
the standards of fraud, duress, or material mistake of fact.
Indeed, that may be this case: the alleged father’s
misunderstanding       may      have     arisen    because      of
miscommunication, rather than intentional deception.

                              ***
Because the goal of the legislation was to hold parents
responsible for their own children and to establish a connection
between parent and child, it seems entirely contrary to the
legislative intent to hold non-parents responsible for other
people’s children. See Walter v. Gunter, 367 Md. 386, 399
n.12, 788 A.2d 609 (2002) (“Our Legislature never stated that
the ‘decent support of children’ should be imposed upon those
who are found, conclusively, not to be the child’s parent ...”).
Denying a paternity test to a person who signed an affidavit of
parentage runs the risk of doing precisely the opposite of what
the General Assembly intended.

                             ***
The bottom line is evident: an affidavit of parentage is not
meant to conclusively prove that which is false. Rather, an
affidavit of parentage is meant to correctly establish paternity

                                12
              by a formal acknowledgement so that unwed fathers provide
              financial, emotional, and social support to their biological
              children. See Pamela C. Ovwigho, Catherine E. Born, &
              Shafali Srivastava, Maryland’s Paternity Acknowledgment
              Program: Participant Entries into the Public Child Support
              and Welfare Systems, at 6, October 2002, available at
              https://perma.cc/363W–8YUC. Thus, when an alleged father is
              not the biological father of the children, using an affidavit of
              parentage to establish paternity incorrectly over the protest of
              the alleged father not only unfairly saddles an individual with
              responsibility for children unrelated to that individual, but also
              deprives the children of the connection with their biological
              father that the affidavit of parentage was supposed to
              encourage and protect. Such an interpretation seems contrary
              to the purpose of the statute.

              Hence, as the statutory text explains and the legislative history
              confirms, when an alleged father signs an affidavit of
              parentage on the basis of a genuine but incorrect belief that he
              is the father of the children, and he later requests a genetic test
              to show whether is in fact the father of the children, he is
              entitled to one. Then, if the test conclusively shows that he is
              not the father of the children, he no longer has the legal
              responsibilities that a father must have.

Davis, 447 Md. at 342–49 (McDonald, J., dissenting) (emphasis added).

       This case presents the identical issue without the res judicata wrinkle or the

analytical inversion in Boone.6 Unlike Mr. Davis, Mr. Faison appealed the trial court’s




6
 In Boone, the mother sought genetic testing for the purpose of disproving the affidavit-
acknowledged paternity of the father, with whom she was litigating custody and visitation.
We affirmed the circuit court’s dismissal of the mother’s petition to disestablish paternity,
holding that FL § 5-1028(d) did not authorize her to seek genetic testing for the purpose of
seeking to prove that the father had signed the affidavit under a material mistake of fact.
Id., slip op. at 10–12. Put another way, the statute authorized testing to attempt to prove
one’s own mistake, not the mistake of another.
                                            13
decision denying his motion for genetic testing. Unlike Ms. Boone, Mother is not

attempting to prove that someone else made a material mistake of fact—Mr. Faison is

trying to prove that he signed the Affidavit based on the mistaken belief that he was Child’s

father. The Affidavit begat a finding that Mr. Faison is the Child’s father, and that finding

remains in place until disproven. But as the Davis dissent explicated, that finding isn’t

immutable—the statute contemplates that a parent might sign an affidavit against a

genuinely mistaken belief of his parentage, and it allows Mr. Faison the opportunity to try

and establish that mistake in an appropriate (and likely conclusive either way) manner, and

have the Affidavit rescinded under § 5-1028 or the declaration of paternity set aside under

§ 5-1038. This is precisely the situation that the Davis dissent anticipated, where the father

may or may not be able to prove that he signed the affidavit as a result of fraud, duress, or

material mistake of fact, but may have had a good faith belief that he was the father that

testing can now resolve. Davis, 447 Md. at 345–46 (McDonald, J., dissenting) (“In such a

situation, the affidavit of parentage is not rescinded, but the judicial order declaring

paternity and requiring child support may be set aside if the genetic test excludes the

alleged father.”).

       The trial court recognized properly that the signed Affidavit constituted a legal

finding of paternity. But when Mr. Faison requested a genetic test, the court should have

granted that request. Without the opportunity for a genetic test, the provisions of the Family

Law Article would place Mr. Faison in a complicated catch-22: he would be entitled to

rescind the Affidavit if he can prove fraud, duress, or material mistake of fact, or to attempt

                                              14
to exclude himself as Child’s father, but would have no way to obtain the one form of

testing most likely to answer these questions. The Legislature did not intend to hold non-

parents responsible for other people’s children, Davis, 447 Md. at 348 (McDonald, J.,

dissenting), nor to encourage a court to avoid finding out the truth about a child’s parentage.

So “when an alleged father signs an affidavit of parentage on the basis of a genuine but

incorrect belief that he is the father of [a child], and he later requests a genetic test to show

whether [he] is in fact the father of [the child], he is entitled to one.” Davis, 447 Md. at 349

(McDonald, J., dissenting).

       For the same reason, the circuit court erred when it required Mr. Faison first to

satisfy a best interest of the child analysis as a prerequisite to a genetic test:

               [I]t’s probably useful for me to try to articulate what I think
               I’m doing here this morning -- because I think it’s a fairly
               narrow process. I am trying to determine whether it is in the
               child’s best interest or not to override the presumption that is
               created by the signature of this document which says at the top,
               this is a legal document and constitutes a legal finding of
               paternity, the presumption that he is this child’s father. What I
               have to hear in order to override that presumption is what, if
               any, evidence there is that would lead me to the conclusion that
               it’s in the child’s best interest to do this testing. And ordinarily,
               what that requires is some articulation of how it’s beneficial to
               the child.

               Typically people tell me that it would be beneficial for the child
               to know who the child’s parents are, that’s fine, as long as there
               is somebody who is the alleged other parent. And typically then
               what I do is allow testing for the gentleman generally who is
               alleged to be the parent, the father, and if that produces a
               positive genetic test, we proceed from there. I don’t generally
               get the evidence that’s required to make a determination about
               the best interest of the child in a situation where there is no

                                                15
              other nominee, let’s say, for parent of the child. So maybe to
              say it the other way, from my perspective having done a lot of
              these cases, it is not in the child’s best interest generally to
              remove one of the parents without there being some other
              explanation.
                                            ***
              The law says he’s the father, and so it becomes his job to
              explain why it’s in the child’s best interest to have a parent
              removed from the child’s life.

       The child’s best interests play no role in the statutory question of whether a

declaration of paternity may be set aside. The question is whether Mr. Faison can establish

that he signed the affidavit of parentage subject to a mistake of material fact, FL § 5-

1028(d)(2), or whether he’s entitled to set the declaration of parentage aside, § 5-

1038(a)(2), either of which will depend on whether the blood or genetic test excludes him

as the father. FL § 5-1030(2)(i)(2); see also Langston v. Riffe, 359 Md. 396, 428, 435

(2000) (“[A]n examination of the best interests of the child has no place” in a court’s

determination to grant a putative father’s request for a genetic test).

       Whether Mr. Faison can, after testing, meet his burden of proof remains to be seen,

and we express no views on whether he ultimately will succeed. He is, however, entitled

to a genetic test for the purpose of attempting to prove that he signed it pursuant to a mistake

of fact or that he is otherwise entitled to have his declaration of parentage set aside, and we

reverse the judgment of the circuit court and remand for further proceedings consistent

with this opinion.




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     JUDGMENT OF THE CIRCUIT
     COURT    FOR    MONTGOMERY
     COUNTY REVERSED AND CASE
     REMANDED      FOR   FURTHER
     PROCEEDINGS       CONSISTENT
     WITH THIS OPINION. APPELLEE
     TO PAY COSTS.




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