Alexandria, VA asked in Family Law for Maryland

Q: Can a man take me to court to establish paternity on a new born that passed away at the hospital ?

How can genetic testing be done on a baby that doesn’t exist ?

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2 Lawyer Answers

A: It is generally possible for a man to seek to establish paternity of a child, even if the child is no longer alive. Paternity can be established through a legal process, either voluntarily or through a court order. In some cases, paternity may be established through genetic testing.

If a man wishes to establish paternity of a child who has passed away, he may need to file a petition with the court and provide evidence to support his claim of paternity. The court will consider the evidence and make a determination as to whether the man is the father of the child,

Mark Oakley
Mark Oakley
  • Rockville, MD
  • Licensed in Maryland

A: If blood or tissue samples were preserved from the child (either through an autopsy procedure to investigate the cause of death or for other reasons), or if the child was buried and the body can be exhumed, then DNA testing is possible and can confirm paternity. It is unclear why the alleged father wants to establish paternity in this instance, as you have not identified his reasons which I assume are in the petition he filed, but there may be a great emotional attachment to the idea that a life was brought into the world, however short, that is the son or daughter of the petitioner, who would like to know that and come to terms with it. Or there may be monetary considerations, such as the right to participate in and pursue a wrongful death action if the child died as the result of the negligence of another, or from the malpractice of a physician; or perhaps the child was alive long enough to qualify for an inheritance of a deceased relative--which would give each parent a right to split the estate of the deceased child that now is the beneficiary of that inheritance. There may be other reasons that a court would be compelled to find good cause to justify a paternity test, or in the absence of a DNA sample, to hold an evidentiary hearing regarding whether the petitioner is in fact the father. It will be up to the judge to determine whether there is sufficient evidence, and the father will need to present that evidence. If you wish to contest the petition, you should retain counsel and review the facts in the petition to determine what the motivation is of the purported father, and whether there is a valid basis to proceed, or whether you have grounds to file a motion to dismiss. I imagine if represented by counsel, the petitioner will want to take your deposition and examine you under oath about what other sexual partners you had around the time of the child's conception who could be the father if not the petitioner. That would be reason to contest the petition if it is being pursued solely to find out private details of your life and not for any puported need to know about paternity. Other reasons to contest the proceeding may be simply the huge emotional trauma of having to exhume your child's body if that is what is being requested, which is not outweighed by the petitioner's need to know. Meet with an attorney in private to discuss your concerns and how you would like to proceed.

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