With a breathtaking sweep of their pens (or keyboards), four Justices of the Pennsylvania Supreme Court last week swept away decades of decisional law concerning paternity by estoppel, ushering a new era of parentage litigation, in KEM v. PCS, No. 67 MAP 2011 (February 21, 2012). The facts were relatively simple and commonplace: a married woman had an affair resulting in the birth of a child, who was four years old when she decided to sue the biological father for child support. Mother and her husband were separated, but neither had initiated a divorce action. The “other man” had occasional contact with the child and provided gifts from time to time. Genetic testing had been performed privately, ruling out the mother’s husband as the child’s father.
The York County trial court considered the labyrinthine intersection of case law concerning the presumption of paternity and paternity by estoppel. These two distinct but related concepts attribute parentage to a man who is not the child’s biological father under circumstances where equity dictates. The presumption of paternity is one of the “strongest presumptions in the law,” which designates the mother’s husband as the legal father of a child who is born to an intact marriage, unless the husband lacked access to the mother or was impotent at the time of conception. Brinkley v. King, 549 Pa. 241, 701 A.2d 176 (1997). Paternity by estoppel is a legal concept that prevents a man who assumes the duties of a child’s father, such as supporting the child financially, from denying his paternity. Fish v. Behers, 559 A.2d 523, 741 A.2d 721 (1999).
The law surrounding these equitable principles was by no means clear. A vast array of complex fact patterns brought before our Courts resulted in a tangled web of decisions that required careful study to glean the controlling legal concepts. Still, it was reasonably clear that our Courts would not allow genetic testing if the child enjoyed the benefit of a father who was its mother’s husband or acted as the child’s father by supporting the child and being actively involved in the child’s life.
In KEM, the mother of the child appealed the trial court’s decision to dismiss a support action against the mother’s paramour, based on a finding that the child was born to a marriage that was somewhat intact and mother had treated her husband as the child’s father, which precluded her from suing her paramour for child support. (This permutation of the “paternity by estoppel” principle was intended to prevent mothers who enjoyed the benefits of an intact marriage from supplementing their family resources by suing an outsider for financial support.) The Superior Court affirmed the trial court’s decision on the basis of patenity by estoppel but not the presumption of paternity, reasoning that the latter principle would not protect the marriage since everyone knew that the mother’s husband was not the child’s biological father. Thus, in the Supreme Court, the only question certified on appeal was whether the mother was estopped from denying her husband’s paternity.
The majority opinion (5-1-2) was written by Justice Saylor. After an exhaustive review of existing case law and the parties’ legal and policy arguments, Justice Saylor determined that existing case law does not adequately address modern circumstances, such as the prevalent availability of genetic testing and the erosion of social stigma associated with illegitimacy. In place of the traditional criteria, Justice Saylor established a “best interests of the child” standard for judging paternity by estoppel in child support cases. This new standard will require both fathers (the husband and the paramour) to testify in paternity proceedings if possible, consider the relationship of the child to each, and perhaps look at the financial resources of each father and prospects for maintaining relationships with the mother and child. The Court stated that a guardian ad litem can be appointed to advocate the best interests of the child, and genetic testing can be performed to impose the costs of a GAL on the biological father (even if he has no other financial obligation to the child). The Court explicitly acknowledged that its decision “will obviously require development [of jurisdprudence] through multiple cases as different fact patterns arise.” To guide those decisions, the Court advised that presumptions should retain their greatest force in cases where as intact family exists, and in cases where no solid relationship has developed between the child and any putative father, the responsibility for fatherhood should lie with the biological parent. The Supreme Court remanded this case to the York County trial court for a more thorough assessment of the child’s best interests.
In a concurring opinion, Justice Orie Melvin scolded the trial court for not developing a more complete record. She also endorsed the dissenting opinion filed in the Superior Court appeal, wherein then-Judge McCaffery wrote the majority opinion affirming the trial court’s decision. Judge Orie Melvin responded to the dissenting opinion by Justices Baer and McCaffery, arguing that the existing case law is outmoded in light of modern technology and social mores.
Justice Baer wrote a dissenting opinion, in which he did not defend existing case law, but advocated the outright abolition of presumptions. Citing the realities of modern life, Justice Baer wrote that most children born of an affair will eventually learn their true paternity. In those circumstances, the mother and paramour should be precluded from denying the husband’s paternity only if he invokes the doctrine to maintain his status as the child’s legal father.
Reading these opinions, one must wonder what effect the decision will have on a large and growing of body of cases involving families on public assistance, same-sex couples, children born by surrogacy, and other non-traditional family constellations where the child’s “best interests” are especially complex. The Court’s decision converts a child support proceeding into a mini-custody hearing in some respects by focusing on a criteria never before considered in the child support proceedings. Perhaps the Court’s call for legislative action on this topic are overdue.