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.