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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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