If both parents are on the birth certificate who has custody in Maryland

Learn how you can establish paternity and why it's beneficial for your child in Maryland.

This article provides on overview of paternity in Maryland, including what it means and how you can establish it. If you have questions about paternity after reading this article, you should contact an experienced family law attorney in your area.

What is Paternity in Maryland?

Under Maryland law, when a married couple has a baby, both parents are automatically viewed as being the legal parents of their child. That gives them all the rights and responsibilities of parenthood. But Maryland doesn't have the same rule for unmarried couples. When unmarried couples have a baby, only the mother is automatically recognized as a legal parent. This means that the father and the baby will miss out on important benefits and obligations of the parent-child relationship unless some further action is taken.

Maryland's General Assembly (meaning, the state legislature) has specifically stated that "this State has a duty to improve the deprived social and economic status of children born out of wedlock" and must act "to promote the general welfare and best interests of children born out of wedlock by securing for them, as nearly as practicable, the same rights to support, care, and education as children born in wedlock."

Establishing paternity refers to the legal process for making sure that the baby's biological father becomes the legal father, too. Unmarried Maryland couples have to take extra legal measures, above and beyond what married couples do, to make sure that their child's paternity is established. In turn, Maryland's lawmakers have acted "to simplify the procedures for determining paternity, custody, guardianship, and responsibility for the support of children born out of wedlock."

How Can You Establish Paternity?

In Maryland, there are four basic methods to establish paternity.

Marriage

The first has already been discussed—the father and mother have married at the time of conception or before the child's birth. The second method also pertains to marriage—the father and mother can marry after the baby is born, provided that the father openly acknowledges, orally (meaning, in spoken words) or in writing that the baby is his. It's best to discuss this with an attorney.

There are two more methods that unmarried Maryland couples with a baby commonly take to establish paternity: the parents can sign an "Affidavit of Parentage" form and have the father's name added to the birth certificate, or the question of the baby's paternity can be adjudicated (decided) by a judge after someone files a paternity lawsuit.

Affidavit of Parentage

Signing the affidavit of parentage is a simple and totally voluntary process. (By contrast, going to court is an involuntary process because everyone is bound by the judge's decision and there's no element of choice.)

If you have any doubts about paternity, don't sign the affidavit because once it's signed, it's a legally binding document that's very hard to overturn. Instead, pursue your right to genetic testing (which will be saliva swab testing, not a blood draw) first, so you can find out if there's a DNA link between you and the child. You also have the right to talk to a lawyer before you sign anything. If you want to look at a copy of the affidavit, call the Maryland Department of Health & Mental Hygiene, Division of Vital Records, at 410-764-3182, and they will send you one.

Most commonly, unmarried couples choose to sign the affidavit at the hospital or birthing center. An affidavit is a sworn statement, so the mother and father will have to sign it in the presence of official witnesses. The hospital has the necessary forms and staff available to assist you and act as witnesses for your signature. The hospital will also make sure the affidavit gets to Vital Statistics for filing. It's important to know that you don't have to sign the affidavit at the hospital if you have reservations or you don't feel ready. You can sign later if that's what you want, but know that both parents will have to sign in the presence of a notary public (official licensed with the State of Maryland to witness official signatures), which may require a small fee.

By signing the affidavit, the parents are agreeing that the father is the biological and legal father of the baby. They also agree that the father may have to pay child support and that the child has the right to inherit from the father. Custody rights stay with the mother. But by signing the affidavit, the father earns the right to go to court and ask for a new custody and visitation schedule. Finally, they agree that the father's name should be added to the birth certificate.

Going to Court

The final way to establish paternity is through the judicial process. A paternity action can be brought to court by either of the parents or by a government lawyer for the local office of the Child Support Enforcement Agency (CSEA), which usually gets involved because the mother or child is received financial assistance through the State of Maryland. CSEA is interested in paternity cases because its mission is to make sure that biological parents are providing financial support for their children.

If anyone requests genetic testing, the court will order it and everyone must submit to testing. The parties can settle the case at any time or they can go to trial. If they go to trial, the judge will decide whether the alleged father is the baby's legal and biological father. If the answer is "yes," the court will issue a final paternity "judgment of filiation," which means that paternity has been formally established. The court can also enter an order assessing financial obligations (child and medical support) and make a decision about custody, visitation, and residency (where the child will live).

Why Should Either Parent Establish Paternity?

There are a number of benefits to establishing paternity, including:

• If the father and mother live together, child support is unlikely to be an issue. But if they don't, the father and mother may have financial obligations to pay child support, maintain health insurance, and pay medical expenses and educational costs. They can help each other financially.
• The parents can work together to make decisions that are best for their child.
• Signing the affidavit secures the father's right to go to court to ask for expanded custody and visitation.
• By exposing children to both parents and both sides of the family, parents bond more closely with their children from a young age and give them a feeling of inclusion and connectedness.

Children also enjoy a wide variety of benefits when paternity is established:

• Your child's birth certificate will include both parents' names.
• Your child is guaranteed the ability to access medical histories from both sides of the family.
• A child with a legal father can qualify, through the father, for benefits like Social Security, medical insurance, and other state, federal, and inheritance benefits.

Additional Resources

The Maryland Department of Human Resources, Child Support Enforcement Administration, has a paternity information page which explains the process of getting an affidavit of parentage signed. There is also a child support page with contact information and a web-based e-mail submission form that anyone can use to contact their local CSEA. Remember: either parent, or the government, can get help from a CSEA to determine paternity. The state CSEA has also prepared a booklet, which contains a lot of information about child support but also some helpful insights into paternity and why it's so important.

The Maryland Courts, Department of Family Administration, maintain an online listing of official forms you can use to ask a judge for help with custody, visitation, child support, and related issues.

The People's Law Library of Maryland, which is managed by the State Law Library, has a paternity topic page with links to external pages, including the applicable statutes.

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