1. REVIEW: Enforcing Obligations Between Adult Cohabitants Theories of Recovery Under Marvin v. Marvin: Contract (Majority Approach) Will be enforced as long as it doesn’t rest upon unlawful consideration 1. Express contract Oral or written Stable and significant relationship 2. Implied contract – contract arising from conduct of parties – one party contributed services or property with the expectation of receiving property and/or support in return.

2. Any non-contract theories of recovery for unmarried cohabitants? Other claims in law recognized: claims based on title to property (e.g. tenancy-in-common/joint tenancy) Equitable remedies: constructive trust unjust enrichment

3. Forming Families Outside of Marriage Part II: Children April 15, 2003

4. Rights of Children of Unmarried Parents Numbers dramatically increasing. Stronger Protections than Adult Members of Family. Trend toward treating children of married/unmarried parents the same as long as paternity established based upon Constitutional Equal Protection decisions.

5. 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. Protect State 3. Protect unmarried fathers

6. How To Establish Paternity Judicial Declaration Statute of Limitations? Defenses? Marital Presumption Goals?

7. Policies Served By Marital Presumption: 1.Protect integrity of family (and family is defined by marriage) 2.Protect children where no father “waiting in the wings”

8. Disestablishing Paternity 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.

9. §4 [Presumption of Paternity] (a)A man is presumed to be the natural father of a child if: (1) he and the child’s natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by the court (2) [attempted marriage] (3) [post-birth marriage plus written acknowledgment] (4) while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child; or (5) [filed written acknowledgment w/consent of any other presumed father]

10. (b) A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which n the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man.

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