Mother’s Secret Tryst Doesn’t Excuse Husband from Paying Child Support for Boyfriend’s Child

by Brian Vertz on April 5, 2013

When the Pennsylvania Supreme Court announced its decision last year in K.E.M. v. P.C.S., 38 A.3d 798 (Pa.2012), it changed the face of child support paternity law, applying a “best interests of the child” standard in cases involving paternity by estoppel. An age-old concept, “paternity by estoppel,” means that a man who acts as though he is the father of the child may be held legally and financially responsible, even if there is no paternity test to prove his fatherhood, or as in this case, the DNA test  proves that he is not the child’s father.

An unpublished decision of the Superior Court, P.A.P. v. T.A.P., No. 1932 MDA 2012 (April 4, 2013), illustrates the point. In this case, Mother and her husband had two children, divorced and then remarried. Another child was conceived while Mother was having an extramarital affair. She swore to her husband that she used protection with her boyfriend, so he trusted her. For the first three years of the child’s life, Mother’s husband stayed in the marriage and treated the child as his own. They eventually separated and filed for divorce when the child was 4 years old. A few months later, the husband secretly performed a genetic paternity test and learned that he was not the father. He didn’t cut off contact with the child, but reduced his custodial time. He continued to take the child to family functions, went to her school events, and claimed her as his child on his tax returns. The child continued to call him “Daddy” and knew no other father.

When Mother sued her ex-husband for child support, he objected, knowing that he was not the father. He asked the court to perform paternity testing to prove it, but the court refused to perform testing. The Superior Court affirmed, finding that Mother’s husband was not legally permitted to deny his paternity after acting like the child’s father for so many years. The concealment of Mother’s affair did not rise to the level of “fraud” that would excuse her husband from denying paternity, especially since he continued to treat the child as his own after he learned the truth.

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