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COMMONWEALTH EX REL. WESTON v. WESTON. (09/12/63)

September 12, 1963

COMMONWEALTH EX REL. WESTON, APPELLANT,
v.
WESTON.



Appeal, No. 187, Oct. T., 1963, from order of County Court of Philadelphia, Jan. T., 1963, No. 180, in case of Commonwealth ex rel. Ivory Weston v. John W. Weston. Order reversed.

COUNSEL

Seymore H.Johnson, Jr., for appellant.

Sadie T. M. Alexander, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Woodside

[ 201 Pa. Super. Page 555]

OPINION BY WOODSIDE, J.

The parties in this support case were married August 4, 1956, and separated January 1, 1963. While they were living together as husband and wife, the two children who are the subjects of this support action were born, LaTifa Weston on May 9, 1959, and Kasseem Weston on October 18, 1960.

[ 201 Pa. Super. Page 556]

After the parties separated, the wife brought an action against her husband for the support of herself and the two children. The father then filed a petition asking for an order for blood tests under the Act of July 13, 1961, P.L. 587, 28 P.S. ยง 307.1 et seq. known as the Uniform Act on Blood Tests to Determine Paternity. In the petition, apparently for the first time, the defendant questioned the paternity of the children who presumably were previously accepted and supported by him as his own.

The court below summarily ordered the blood test upon the defendant's petition. It was "of the opinion that under the decision of the Superior Court in Commonwealth ex rel. Goldman v. Goldman, 199 Pa. Superior Ct. 274 (September 14, 1962) [it] had no alternative but to enter the order prayed for in the husband's petition."

There is something inherently repulsive about a man questioning the paternity of children who were conceived by his wife and born to her while he was living with her and who were accepted and held out to the world by him as his children until his and his wife's personal differences led to a support action.

It has been the law of this Commonwealth since its earliest days that a husband could not question the legitimacy of children under such circumstances. Both he and his wife are denied the right to testify that they did not have intercourse within the time when she conceived the child.

The children of this case are relatively young, but if a compulsory blood test may be ordered in this case it may be ordered in a case involving older children. It is unfortunate for a child when circumstances cause it to doubt its paternity, but it is cruel for the law to inject such doubts into a child's mind when there are no circumstances to support the doubts except an ...


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