An Illegitimate Child Conceived or Born During Separation – Who is the Legal Father?

Dana McKee

By Dana W. McKee

Several years ago, I had a client who was in a very unhappy marriage.  She and her husband had one child. She was the primary breadwinner and caregiver to their son, while her husband contributed little to their family, financially or otherwise.  He was controlling and emotionally abusive, and so it took some time before she was able to muster the courage to leave him.  She lived in fear that he would act out in some way, impeding her ability to move on, or even use their son as a weapon against her.

Eventually, my client did leave him. And, as she feared, her husband did everything in his power to keep her tethered to him.  During the separation, my client developed a wonderful, loving relationship with another man.  The two fell in love and planned to marry following my client’s divorce.  As fate would have it, however, my client became pregnant with her boyfriend’s child, further complicating the divorce process.

Why? Maryland law provides that when a child is conceived or born to a married woman, there is a presumption of legitimacy for that child; the woman’s husband is automatically presumed to be the child’s biological father, even if the parties are separated with the intention of getting a divorce.

We now had a new concern: what impact would this pregnancy have on her divorce proceeding, and the custody of her children, both born and unborn?  Would her husband try to assert custody over the unborn child, punishing my client and her boyfriend?  Would her husband use the information to claim that my client was an unfit mother and that he should have primary physical custody of their son?

Fortunately, her husband did not do these things.  He wanted nothing to do with the unborn child, and her boyfriend stepped up to the plate.  My client’s boyfriend appeared in court and testified that he was ready, willing, and able to be a father to the unborn child and that he would provide the financial and emotional support required.  The judge concluded that based on the testimony, the Maryland presumption of legitimacy was properly rebutted, and the boyfriend was found to be the father of the unborn child.

Would the outcome have been different if the boyfriend had been unwilling to accept responsibility for his unborn child?  Perhaps.  Under Maryland law, testimony of the married woman or her husband cannot be used to bastardize a child conceived or born during their marriage.  Additional evidence, such as testimony from a third party that the husband did not have the opportunity or ability to engage in sexual relations with his wife at the time of the child’s conception or a DNA test result excluding her husband as the child’s biological father, is necessary to rebut the presumption of paternity.

The scenario faced by my client – a married woman who became pregnant after separation but prior to divorce –is occurring more frequently as couples delay getting a divorce after their separation.  If you are in this situation, whether you are the husband, wife, or the fellow who fathered the child, you will need to know your rights and what to expect in court.  The family law attorneys at Brown, Goldstein & Levy, LLP, Dana McKee and Alyssa Hildreth, are here to help guide you through the process.  Call us at (410) 962-1030 to schedule a consultation.