No “Best Interest” Hearing to Determine Fatherhood if Putative Father has No Relationship

by Brian Vertz on December 21, 2012

A few months ago, the Pennsylvania Supreme Court resculpted the landscape of paternity cases in K.E.M. v. P.C.S., 38 A.3d 798 (Pa.2012), by establishing a “best interests” standard in cases where the presumption of paternity by estoppel might apply. Paternity by estoppel is a legal principle that prohibits the genetic testing of children who have the benefit of an unmarried father’s love, care and financial resources. As the Superior Court once wrote: “[B]ecause of a person’s conduct (e.g. holding out the child as his own, or support[ing] the child), that person, regardless of his true biological status, will not be permitted to deny parentage, nor will the child’s mother who has participated in this conduct be permitted to sue a third party for support, claiming that the third party is the true father.” In other words, someone who acts like a father will be treated as the father under the law, and no court will order tests to prove otherwise.

This principle, once strong, has eroded over the years, as unmarried parentage and genetic testing have become more prevalent. For a while, our Courts held that paternity by estoppel would not apply where it would not preserve an intact family unit. In other words, if the man who acted like a father broke up with the mother, the Court might permit genetic testing. Then, in 2011, the Pennsylvania Supreme Court threw a curveball with its decision in K.E.M., where it held that paternity by estoppel would be determined by a “best interests” standard. In other words, a man who acts like a father will be barred from demanding a paternity test only if that is best for the child, i.e., there is no better alternative father available.

In September 2012, the Superior Court considered the first published decision after K.E.M.  In V.E. v. W.M., 2012 Pa. Super. 203 (September 24, 2012), the mother sued her boyfriend for child support when the child was just nine days old. Her boyfriend contested paternity, arguing that the infant was his brother, not his child. (Think about it.) More specifically, he alleged that his father had accepted the child as his own, provided financial support, and signed the child’s birth certificate as his father. The trial court held a hearing on the preliminary objections and ordered paternity testing, finding that paternity by estoppel would not apply in this case.

On appeal, the younger candidate argued that he was entitled to a hearing before the court may order genetic testing, based on K.E.M.  The Superior Court held that K.E.M. required an examination of the relationship between the child and each of the paternal candidates to determine which relationship was in the child’s best interests. Since no relationship existed in this case, K.E.M. was inapplicable. This decision perhaps exploits a loophole in K.E.M. that will permit the trial courts to avoid the onslaught of hearings that K.E.M. would seem to engender. If this decision is a correct interpretation of K.E.M., there is no need for a hearing to determine best interests if one or both putative fathers have no relationship with the child.

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