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Archive for the ‘Paternity’ Category

Pennsylvania has long clung to the presumption of paternity by estoppel, which means simply:  if you hold yourself out as the parent, you are the parent, even if you are not the biological parent.  Under this fiction, DNA evidence is not admissible.  Some states are moving away from this somewhat archaic presumption.    In the holding of K.E.M. v. P.C.S., No. 67 MAP 2011, 2012 WL 573635 (Pa. Feb. 21, 2012), the Pennsylvania Supreme Court recently declined an opportunity to do away with the presumption entirely, but it did add one ripple: the courts must look at the best interest of the child when applying the presumption of paternity by estoppel.  There, the Supreme Court of Pennsylvania deemed that paternity in Pennsylvania by estoppel will continue in this Commonwealth.  There, the biological mother acknowledged that she had an extramarital affair with the alleged father during the course of her marriage to her husband. Testing did establish that her husband was not the biological father of the child.

The alleged biological father asserted paternity by estoppel to defeat the child support claim and argued that the husband had established the father relationship with the child, adding that his involvement in the child’s life had been insignificant. Also, the mother and her husband remained married even though they were separated.

The alleged father maintained that he has little involvement in the child’s life and that the mother remained married to her husband, though separated.  This prompted the lower court and Superior Court to grant his motion to dismiss the support action against him.  The husband remained responsible for the child’s support.  But then the Supreme Court of Pennsylvania had a look and reversed the lower court’s decision.  Specifically the Supreme Court remanded to the lower court for proceedings with the following directive:  the purpose of paternity by estoppel is to keep families intact and protect the best interests of the child. It was then up to the lower court to evaluate the best interest of the child based on a new evidentiary hearing.   This left in tact the doctrine of paternity by estoppel but it must be supported by a consideration of the best interest of the child.

Before this new provision in the law, the party seeking to challenge an order to pay child support based on paternity by estoppel could defend on two grounds:  (1) show that he did not hold himself out as the parent; or (2) show that he relied on the other parent’s false and fraudulent claim that he was the biological father, when he was not.  This issue came up a few years ago in a case that was litigated in Allegheny County before the Honorable Judge Wetch and appealed to the Superior Court of Pennsylvania.  The case was also profiled in the New York Times.

In that case, the mother was married to her husband, Mike, when she had a child (“L”) with another man, Rob.  Her husband held himself out as the child’s father even though he knew he was not, eventually, and claimed that he had only done so because his wife had lied and told him was, in fact, the biological father.

This is how the New York Times described the case:

The real issue, her attorney, Todd Elliott, told the court, was that Mike didn’t really want to stop being L.’s father.  ‘Every time he was given a chance to deny paternity, he never did,’ Elliott said, according to the transcript. ‘He signed consent order after consent order because he wanted to be the father. The testimony here today is that he only did it because of some philanthropic belief that he wanted to step up. That’s not true. . . . He fought for every other weekend. He fought for having her overnight on a Wednesday. He fought for having her not be able to leave the jurisdiction. These aren’t things that someone does because they are just philanthropic. He wants to be the dad; he just doesn’t want to pay support.’ Elliott’s accusation infuriated Mike, who believed it accurately described Rob, not him.

The hearing officer was persuaded by Elliott’s argument: Mike hadn’t been defrauded into admitting paternity after the DNA tests, and he had hardly abandoned L. after he learned the truth. Still, the officer ruled, Rob had also acted “essentially as a parent.” During the hearing, Stephanie testified that Rob was the biological father, and that he and L. loved each other. He had taken her on vacations to Disney World, Las Vegas and the ocean, celebrated at her birthday parties, bought her gifts and attended her soccer games and school activities. As such, the hearing officer ordered, Rob should help pay her support, too.

Despite being named a defendant in Mike’s lawsuit, neither Rob nor any legal representative for him ever showed up in court or contested the rulings. But Stephanie did. Her attorney argued in an appeal that parenthood shared by one mother and two fathers “would lead to a strange and unworkable situation.” So, the lawyer reasoned, Rob should not be forced to help pay for L.’s care. David Wecht, the state-court judge charged with hearing the appeal, agreed with Stephanie’s conclusions, albeit for different reasons. Pennsylvania law did not allow for the recognition of two fathers of the same child, he wrote in his opinion, and thus he could not order two men to pay paternal support. Wecht concluded that under the law, Mike was L.’s legal father. Fraud is the only way to rebut the key paternity doctrine, and Wecht, like the hearing officer, concluded fraud did not induce Mike to continue as L.’s dad after the DNA results; love did.

The superior court agreed with and fully upheld the lower court’s decision.  The Supreme Court of Pennsylvania declined to hear the case.  There, however, the issue was whether the lower court erred in failing to find fraud, not whether the presumption of paternity by estoppel should be abandoned or abrogated, which did not occur until recently, in K.E.M. v. P.C.S., No. 67 MAP 2011, 2012 WL 573635 (Pa. Feb. 21, 2012), as set forth above, and now the court may — and must — consider the best interest of the child when applying paternity by estoppel.

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The New York Times has recently reported on an unusual child support case.  There, a mother in an intact family cheated on her husband and became pregnant.  The husband acted as a father to the child even after the husband suspected the child was not his.  Husband and wife separated.  The husband agreed to pay child support while he continued to act as the father by exercising shared physical custody.

Everything was OK until the mother married the man with whom she had cheated.  Then,  the ex-husband was enraged.  He filed a petition to terminate child support, only, had already acknowledged paternity.  Plus, he had acted as the father at all material times.   He asserted the fraud defense to paternity.  He reasoned that he had been defrauded by his wife into thinking that the biological father would never act as a father toward the child and, hence, for that reason (and that reason alone) he agreed to act as the father. 

The case went to trial before a hearing officer in Allegheny County, Pennsylvania.  The ex-husband’s claim of fraud was found to be not credible.  The hearing officer also found that the ex-husband had acknowledged paternity and had held himself out as the father long enough for the presumption of paternity to apply.  Accordingly, the ex-husband was ordered to continue paying child support and the child resided primarily with the biological mother and the alleged biological father. 

The ex-husband filed exceptions to the hearing officer’s recommendations and the exceptions were dismissed.  Then, the ex-husband appealed to the Superior Court of Pennsylvania, which upheld the lower court’s decision.  A request was made that the Supreme Court hear the case; however, the request was denied.  Ultimately, the ex-husband was found responsible to continuing to pay child support based on his acknowledgment of paternity and because of paternity by estoppel:  holding himself out as the biological father. 

To this day, the ex-husband continues to exercise his partial custody rights.  He sees the child on weekends; however, to date, the alleged biological father has never been joined as a party in this case, nor has he been ordered to undergo a paternity test for evaluation of whether he should be at least partially responsible for some portion of the child’s expenses that other payers cannot afford, for example. 

In the media, this case has been portrayed as an example of gross inequity.  The New York Times article on November 22, 2009 includes a lengthy description of the case from the standpoint of how DNA testing is changing the role of fatherhood.  A local CBS News outlet in Pittsburgh (KDKA News) is running on a story on the issues, as well.  The million dollar question has been:  why should the ex-husband have to continue paying child support for a child that’s not his?

The answer is simple.   The ex-husband has to pay support because he acknowledged paternity and because he is the father.  OK, maybe not in the biological sense.  But he fought for (and won) the right to partial physical custody (seeing the child on weekends).  He also fought for (and won) the right to shared legal custody, meaning, he has a voice in deciding where the child gets medical care, what religion she’ll be exposed to, what schools she’ll attend, whether she can leave the jurisdiction, et cetera.  These are all substantial parental rights, which the ex-husband continues to exercise to this day. 

And with every right comes a responsibility…

The law firm of Elliott & Davis, PC was involved in the above because we represented the mother. The other question we get is:  OK, but why hasn’t the alleged biological father been made to pay support?  The answer is a little more complicated.  First of all, the supposed biological father is paying support…sort of.  Inasmuch as the alleged biological father lives with the child and provides food for the household, he is contributing to the child’s daily expenses to a certain degree.   But what happens if a big-ticket expense comes up for the child (such as a rare medical condition not covered by any health insurance plan, for example), and what if the ex-husband and mother can’t afford the expense?In that case, can the alleged biological father be pulled into the case as a responsible party? 

The answer is, no.  

Once paternity is established in Pennsylvania (by consent or by operation of law), the court’s cannot consider DNA evidence absent fraud.  Here, the ex-husband both acknowledged paternity and he held himself out as the father.  Plus, the child support system in PA is not designed for the situation created by the facts in this case. Perhaps the law in this area should change.  But for right now, the legal fiction of paternity by estoppel is alive and well in Pennsylvania and the courts will recognize only one payor-“dad.”   

Parenthetically, in closing, we would also like to extend a warm recognition of the work by professor Turley and his meaningful blog post concerning recent law in Pennsylvania.

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