Review: ADR/Private Ordering Family Law: Primary Methods are Negotiation and Mediation Mediation Issues: Different Approaches; Lawyer/Mediator; Confidentiality; Training GOAL: Agreement Between Parties

Separation Agreements: Enforcement and Modification Property Negotiation/Enforcement – “arm’s length” parties No full disclosure unless asked in discovery Result must be fair? No – unconscionability standard Other options for “wronged” party? Alimony Negotiation/Enforcement: Parties can waive or agree to any amount if not unconscionable Modification: Unless “no modification” clause in K, cts can modify alimony if agd. to or reserved

Provisions Regarding Children 1) Cust & Visitation Enforceable: Yes, but ct must make best interest finding Modification: Parties cannot limit ct’s ability to modify 2) Child Support Enforceable: Only if complies with child support guidelines Modification: Parties cannot limit court MD: Incorporate vs. Merge Merge – only enforceable as court order Incorp but not merged pref – enforceable as both contract & order

Forming Families Outside of Marriage April 13, 2004

Rights of Children of Unmarried Parents Numbers dramatically increasing Trend toward treating children of married/unmarried parents the same: equal protection analysis

Paternity Action Historically: Roots: in Crim Law (jury trial; right to counsel, etc.) Proof: witnesses, circumstantial evid. Goal: Identify unmarried fathers for punishment Modern: Civil Proceeding (trials rare) Proof: scientific testing Goals: 1. Protect children 2. State (support) 3. Protect unmarried fathers

Under Maryland Law? • § 5-1006 – Statute of Limitations – 18 yrs. • § 5-1010 – Procedure

Issue:. Under what circumstances can legal Issue: Under what circumstances can legal father seek to “revoke” paternity? Maryland Law? Uniform Parentage Act?

Annotated Code of Maryland, Family Law (1999) § 5-1038 Annotated Code of Maryland, Family Law (1999) § 5-1038. Finality; modification. (2)(i) A declaration of paternity may be modified or set aside: 1. In the manner and to the extent that any order or decree of an equity court is subject to the revisory power of the court under any law, rule, or established principle of practice and procedure in equity; or 2. 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. (ii) Notwithstanding subparagraph (i) of this paragraph, 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.

Uniform Parentage Act Section 6. [Determination of Father and Child Relationship; Who May Bring Action; When Action May Be Brought.] (2) for the purpose of declaring the non-existence of the father and child relationship . . . only if the action is brought within a reasonable time after obtaining knowledge of relevant facts, but in no event later than [2] years after the child’s birth. Best interest test applies Child Appt. Counsel

Policies Served By Marital Presumption: Protect integrity of family (and family is defined by marriage) Protect children where no father “waiting in the wings” MD version - § 5-1027

Rights of Unmarried Fathers Supreme Court Jurisprudence Relationship Bio Bio + Bio + Sub Marriage Marriage Only Only Some Rel. Rel. (w/o bio) (w/bio) Lehr Quillion Stanley/Caban Michael H. Social Biological Legal Fatherhood Fatherhood Fatherhood