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09/17/97 LISA A. BRINKLEY v. RICHARD E. KING

SUPREME COURT OF PENNSYLVANIA


September 17, 1997

LISA A. BRINKLEY, APPELLANT
v.
RICHARD E. KING, APPELLEE

Appeal from the Order of the Superior Court dated October 18, 1995, at No. 0594PGH95, affirming the Order of the Court of Common Pleas of Lawrence County, Civil Division, dated January 25, 1995, at No. 939 of 1993 D.R. Composition OF The Court: Mr. Chief Justice John P. Flaherty. Zappala, Cappy, Castille, Nigro, Newman, JJ. Mr. Justice Zappala files a Concurring opinion. Mr. Justice Nigro files a Concurring and Dissenting opinion. Madame Justice Newman files a Concurring and Dissenting opinion in which Mr. Justice Castille joins.

The opinion of the court was delivered by: Flaherty

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

MR. CHIEF JUSTICE FLAHERTY

DECIDED: SEPTEMBER 17, 1997

One of the strongest presumptions in Pennsylvania law is that a child conceived or born in a marriage is a child of the marriage. In order to rebut the presumption it must be proved by clear and convincing evidence that at the time of conception, the husband either was not physically capable of procreation or had no access to the wife. The issue in this case is whether the presumption applies to the facts of this case.

Lisa Brinkley was married to and was living with George Brinkley in February 1991, when Lisa's daughter, Audrianna, was conceived. George moved out in July, 1991, four months before the child was born. Lisa stated that at the time Audrianna was conceived the former husband slept on the couch and she slept in a bedroom. Further, although her former husband was not physically incapable of procreation at the time Audrianna was conceived and although he was free to enter her bedroom, she and her husband did not have sexual relations. Lisa also testified that she was having sexual relations with Richard King during the period when Audrianna was conceived *fn1 and that her husband filed for divorce because he learned that she was pregnant by King.

Lisa testified that King came to the hospital when Audrianna was born and he visited the child on a weekly basis thereafter for approximately two years until Lisa filed a complaint for support. Although King and his wife also paid Lisa a monthly stipend for Audrianna's support, Lisa filed a complaint for support because the amount was insufficient. Finally, Lisa testified that King placed Audrianna on his medical insurance.

Concerning her former husband, Lisa testified that after they were separated, the former husband came to visit her other child, whom the former husband acknowledged as his own, but he did not visit Audrianna. *fn2

On October 29, 1993, Lisa filed a complaint for support against Richard King, alleging that Audrianna was the child of King. King denied paternity and refused blood testing. Lisa then filed a motion for adjudication of paternity and King answered that Lisa was precluded from claiming that he was the father of Audrianna because she had failed to rebut the presumption that her former husband was the father. The trial court treated the motion for adjudication of paternity as a motion for blood tests and directed the parties to submit memoranda of law on their positions. The court thereafter concluded that Lisa had failed to rebut the presumption that her former husband was Audrianna's father, for she was unable to establish that the former husband had no access during the period of conception, and denied the motion for blood tests. Lisa then appealed to Superior Court.

Superior Court affirmed, holding that Lisa had not presented clear and convincing evidence that her former husband had no access to her during the period of conception. Nonetheless, two of three Judges on the Superior Court panel, in a memorandum opinion, expressed reservations that considerations of impotence or lack of access should be the exclusive considerations sufficient to rebut the presumption of paternity. They suggested that this court consider whether additional factors, such as the identity of the father named on the child's birth certificate, whether the putative father has established a relationship with the child, whether the putative father provided support for the child, and whether the putative father provided medical insurance for the child should be also considered in rebuttal of the presumption.

We granted allocatur in order to review the way in which the presumption of paternity functions in Pennsylvania law. *fn3

In John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), a third party sued to establish his own paternity as against that of the presumptive father. The child was conceived before the mother married, but was born while the mother was married to and living with her husband. Husband and wife cared for the child and remained together at the time the lawsuit was filed. The third party sought to compel the presumptive father to submit to blood tests. Former Chief Justice Nix, Concurring in John M., wrote:

It should remain clear that a child born to a married couple will be presumed to be the issue of the husband. That presumption can be overcome only by proof of facts establishing non-access or impotency. Cairgle v. American Radiator and Standard Sanitary Corp.. 366 Pa. 249, 77 A.2d 439 (1951). It continues to be one of the strongest presumptions within our law. Commonwealth ex rel. Leider v. Leider, 434 Pa. 293, 254 A.2d 306 (1969); Cairgle, supra ; Commonwealth, ex rel. O'Brien v. O'Brien, 390 Pa. 551, 136 A.2d 451 (1958).

[The Uniform Act on Blood Tests to Determine Paternity] cannot be used by a third party, seeking to rebut the presumption, to compel a presumed father to submit to a blood test. Whatever interests the putative father may claim, they pale in comparison to the overriding interests of the presumed father, the marital institution and the interests of this Commonwealth in the family unit. These interests are the cornerstone of the age-old presumption and remain protected by the Commonwealth today.

Thus a third party who stands outside the marital relationship should not be allowed, for any purpose, to challenge the husband's claim of parentage. I believe the presumption in this situation is irrebuttable. . . .

524 Pa. at 322-23, 571 A.2d at 1388-89 (concurring opinion joined by four other members of the court).

In John M. a third party was attempting to defeat the paternity of the presumed father, but three years later, in Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993), we addressed a different fact situation. In Trojak the mother sued the third party for child support, claiming that he, rather than her husband, was the father. The child was born while she was married to and living with her husband. Trojak denied paternity and objected to the trial court's order for blood tests on the grounds that the mother had not rebutted the presumption that the child was the child of the marriage. We stated:

A court may order blood tests to determine paternity only when the presumption of paternity has been overcome. John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380, cert. denied, 498 U.S. 850, 111 S. Ct. 140, 112 L. Ed. 2d 107 (1990). This Court has held that the presumption can be overcome by proof of facts establishing non-access or impotency. Cairgle v. American Radiator and Standard Sanitary Corp., 366 Pa. 249, 77 A.2d 439 (1951). However, under certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as the father of the child.

535 Pa. at 105, 634 A.2d at 206. In Trojak the mother established that she and her husband did not live together as an intact family; her husband had not accepted the child; the husband and wife had repudiated their marriage vows long ago; the husband never supported the child; and when the child was conceived, the husband was physically incapable of procreation.

These cases set forth the fundamentals of the law of presumptive paternity: generally, a child conceived or born during the marriage is presumed to be the child of the marriage; this presumption is one of the strongest presumptions of the law of Pennsylvania; and the presumption may be overcome by clear and convincing evidence either that the presumptive father had no access *fn4 to the mother or the presumptive father was physically incapable of procreation at the time of conception. However, the presumption is irrebuttable when a third party seeks to assert his own paternity as against the husband in an intact marriage. John M., 524 Pa. at 323, 571 A.2d at 1388-89.

The legal identification of a father, however, even in a case involving the presumption of paternity, may also involve the question of estoppel. One or both of the parties may be prevented from making a claim based on biological paternity because they have held themselves out or acquiesced in the holding out of a particular person as the father. *fn5 In Trojak this court stated that:

under certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as the father of the child. . . . The doctrine of estoppel will not apply when evidence establishes that the father failed to accept the child as his own by holding it out and/or supporting the child. . . . Only when the doctrine of estoppel does not apply will the mother be permitted to proceed with a paternity claim against a putative father with the aid of a blood test.

Trojak, 535 Pa. at 105-06, 634 A.2d at 206. *fn6

The presumption of paternity and the doctrine of estoppel, therefore, embody the two great fictions of the law of paternity: the presumption of paternity embodies the fiction that regardless of biology, the married people to whom the child was born are the parents; and the doctrine of estoppel embodies the fiction that, regardless of biology, in the absence of a marriage, the person who has cared for the child is the parent.

The public policy in support of the presumption of paternity is the concern that marriages which function as family units should not be destroyed by disputes over the parentage of children conceived or born during the marriage. Third parties should not be allowed to attack the integrity of a functioning marital unit, and members of that unit should not be allowed to deny their identities as parents. *fn7 Estoppel is based on the public policy that children should be secure in knowing who their parents are. If a certain person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told that the father he has known all his life is not in fact his father.

Thus, the essential legal analysis in these cases is twofold: first, one considers whether the presumption of paternity applies to a particular case. If it does, one then considers whether the presumption has been rebutted. Second, if the presumption has been rebutted or is inapplicable, one then questions whether estoppel applies. Estoppel may bar either a plaintiff from making the claim or a defendant from denying paternity. If the presumption has been rebutted or does not apply, and if the facts of the case include estoppel evidence, such evidence must be considered. If the trier of fact finds that one or both of the parties are estopped, no blood tests will be ordered.

It remains to consider how one knows whether the presumption applies in any given case. Traditionally, the answer to this question has been that the presumption applies if the child was conceived or born during the marriage. We now question the wisdom of this application of the presumption because the nature of male-female relationships appears to have changed dramatically since the presumption was created. There was a time when divorce was relatively uncommon and marriages tended to remain intact. Applying the presumption whenever the child was conceived or born during the marriage, therefore, tended to promote the policy behind the presumption: the preservation of marriages. Today, however, separation, divorce, and children born during marriage to third party fathers is relatively common, and it is considerably less apparent that application of the presumption to all cases in which the child was conceived or born during the marriage is fair. Accordingly, consistent with the ever-present guiding principle of our law, cessante ratione legis cessat et ipsa lex, we hold that the presumption of paternity applies in any case where the policies which underlie the presumption, stated above, would be advanced by its application, and in other cases, it does not apply. *fn8

In the case at bar, at the time of the complaint for support, there was no marriage. Lisa and George Brinkley had separated before the birth of the child and were divorced at the time of the complaint. The presumption of paternity, therefore, has no application to this case, for the purpose of the presumption, to protect the institution of marriage, cannot be fulfilled. It was error, therefore, to fail to consider the estoppel evidence, for estoppel evidence may be presented where the presumption does not apply.

The order of Superior Court is vacated and the case is remanded to the trial court for a hearing on the issue of estoppel. *fn9

Mr. Justice Zappala files a Concurring opinion.

Mr. Justice Nigro files a Concurring and Dissenting opinion.

Madame Justice Newman files a Concurring and Dissenting opinion in which Mr. Justice Castille joins.

CONCURRING OPINION

JUSTICE ZAPPALA

DECIDED: SEPTEMBER 17, 1997

In John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), we held that a child born to a married couple will be presumed to be the issue of the husband unless there is proof of facts establishing non-access or impotency. Non-access is defined by the majority in this case to mean "that it was physically impossible for the presumptive father and mother to have had sexual relations." I find the majority's definition of non-access unnecessarily restrictive for the reasons articulated by Madame Justice Newman in footnote eight of her Concurring and Dissenting opinion. The testimony of Lisa Brinkley that she and her former husband did not have sexual relations during the period of conception was sufficient to establish non-access and to overcome the presumption. As this analysis is consistent with our holding in John M. v. Paula T., I do not believe it is necessary to re-examine the policy considerations that underlie our decision in that case. I would reverse the order of the Superior Court and remand the matter to the common pleas court for further proceedings.

CONCURRING AND DISSENTING OPINION

JUSTICE NIGRO

SEPTEMBER 17, 1997

I agree with the Majority that this case should be remanded, but, for the reasons presented below, I am unable to completely join in the Majority's decision.

The Majority recognizes that "separation, divorce, and children born during marriage to third party fathers is [now] relatively common, and it is considerably less apparent that application of the presumption [of paternity] to all cases in which the child was conceived or born during the marriage is fair." Slip Op. at 10-11. I agree with this assertion.

However, despite the Majority's recognition of this disparity between practical reality and legal rule, they have chosen nonetheless to preserve the "two great fictions of the law of paternity" -- the presumption of paternity and paternity by estoppel. Slip Op. at 9. The Court does hold that the presumption will no longer apply in cases where the policy it embodies would not be forwarded but, with regard to estoppel, today's decision represents no break with prior case law.

I am unable to join in this approach because I believe that both the presumption of paternity and paternity by estoppel should no longer be strictly applied, as they have been in the past. In light of the changed, and increasingly fluid, nature of the family, and the increased rates of divorce and separation, these legal fictions have become less reflective of social reality. They are now more problematic than useful, and more likely to lead to unfair results. Thus, I agree with the Majority that when the reason for a law ceases, the law should also cease, but I do not join in today's decision because, unlike the Majority, I believe that the time has come to take this principle to its logical Conclusion in the law of paternity.

I believe that the better course of action in these cases is to allow the trial court to determine paternity on a case-by-case basis, unburdened by the obligatory application of a presumption or an estoppel theory. These doctrines have acted as an obstacle to the discretion of the trial court to order blood testing of the parties, the single most valuable technique available to a court in determining parentage. Abandoning their strict application would remove this obstacle and allow the trial court to order blood testing of both the alleged father and the presumed father. The benefit of this approach is of course that the trial court is not precluded from considering test results representing, in essence, conclusive evidence of paternity,1a but is free to acknowledge this evidence, along with such concerns as the maintenance of an existing family unit, if any, and the promotion of the interests of the child, in the course of arriving at an equitable result.

Moreover, I do not believe that abandoning the obligatory application of these two doctrines in favor of the judicious use of blood testing will necessarily result in any more strain on a marriage unit than would, for example, forcing a cuckolded husband, because of the presumption, to care for a child he knows is not his -- a situation which would strain both the marriage and the husband's relationship with the child. Blood testing would also work to eliminate situations where a man is deceived into believing he is the father and is then made to bear legal responsibility, by reason of estoppel, for a child that is not his.

It cannot be ignored, however, that blood testing impacts on an individual's right to privacy and therefore may not be compelled without a balancing of the privacy interests of the one whose blood sample is sought as against the needs and interests of those seeking the test. See John M. v. Paula T., 524 Pa. 306, 316-17, 571 A.2d 1380, 1385, cert. denied, 498 U.S. 850, 111 S. Ct. 140, 112 L. Ed. 2d 107 (1990); see also Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983). The "good cause" requirement found in Pa. R.C.P. 4010(a) embodies this type of balancing.2a Rule 4010(a) states:

When the mental or physical condition (including blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined . . . .

Pa. R.C.P. 4010(a).

I believe this "good cause" requirement provides a workable standard to guide a court's determination whether to compel blood testing.3a "The requirement . . . is not met by mere conclusory allegations of the pleadings or by mere relevance of the physical or mental condition to the case, but rather, requires an affirmative showing by the moving party that good cause exists for ordering the examination." Goodrich Amram 2d § 4010(a):10, quoted in Uhl v. C.H. Shoemaker & Son, Inc., 432 Pa. Super. 230, 239 n.1, 637 A.2d 1358, 1363 n.1 (1994) (Beck, J., Dissenting); see also Schlagenhauf v. Holder, 379 U.S. 104, 85 S. Ct. 234, 13 L. Ed. 2d 152 (1964) (discussing the "good cause" requirement of Fed. R. Civ. P. 35, from which Pa. R.C.P. 4010 is drawn). If good cause is shown for the testing of either the alleged or the presumed father, I believe that he should be tested, despite the presumption of paternity or the presence of facts suggesting a finding of paternity by estoppel.4a

Abandoning the strict use of these doctrines would allow our courts to examine the situation presented, to compel blood testing if the appropriate showing is made, and to weigh the competing factors in order to reach a just result in each case. Given the realities of marriage, separation, and divorce today, I believe a flexible, case-by-case approach to paternity issues, acknowledging and benefitting from the relative certainty of blood testing, is simply more preferable than a system characterized by the strict application of overarching and outdated legal fictions that can lead, as the Majority admits, to unfair results.

Thus, I would also remand this case to the trial court, but for blood testing, not a hearing on estoppel. Since Audrianna was conceived while the Brinkleys were married, and because good cause exists, it would seem reasonable to test George Brinkley first. If he is Audrianna's father, the case would end. If he is not, Richard King should then be tested. If Mr. King is shown to be Audrianna's biological father, I believe, given the facts of this case, that he should then be made her legal father.

It is true that in some cases the answers provided by blood testing will perhaps not be easy for all parties to accept. Despite this, it is my belief that the clarity and finality provided by a case-by-case approach involving blood testing outweigh this concern and make such an approach more desirable than the current system. Accordingly, I am unable to join in the language of the Majority's decision, but I do join the Court's remand.

Mr. Justice Zappala files a Concurring opinion.

Mr. Justice Nigro files a Concurring and Dissenting opinion.

Madame Justice Newman files a Concurring and Dissenting opinion in which Mr. Justice Castille joins.

CONCURRING AND DISSENTING OPINION

MADAME JUSTICE NEWMAN

SEPTEMBER 17, 1997

I concur in the Majority's Conclusion that the presumption of paternity does not apply to this case, but I write separately to express my view that we must expand the factors available to rebut the presumption, particularly because of the accuracy and reliability of blood testing to determine paternity.

I also respectfully Dissent from the Majority's decision to remand this case for a determination of the estoppel issue. The evidence clearly indicates that neither the mother nor the husband is estopped from challenging the husband's paternity because neither held Audrianna out as a child of the marriage.

FACTS

Paternity is a fact-sensitive area of the law. Therefore, emphasizing the relevant facts of this case is important to demonstrate that (1) the presumption of paternity does not apply, (2) estoppel is not a relevant issue in this case, and (3) the next logical step is to perform blood testing to decide whether Richard King (King), the putative father, is Audrianna's biological father.

Both Lisa Brinkley (Lisa) and her now ex-husband, George Brinkley (George) testified that during the time of Audrianna's conception, presumably February of 1991, they did not engage in sexual intercourse. Although they continued to live in the same house, George slept on the couch while Lisa slept in the bedroom. Furthermore, Lisa testified, and King did not deny, that she and King were sexually involved prior to November of 1990 until about June of 1991.

George never held Audrianna out as his child, and King accepted full responsibility for Audrianna as his daughter during the first two years of her life. King was by Lisa's side at the hospital when she gave birth to Audrianna; he paid child support for approximately two years; *fn1 he visited Audrianna and Lisa regularly; and he included Audrianna on his medical insurance policy. Once Lisa sought a court order securing the child support payments from King, he denied paternity and refused to support Audrianna. *fn2

PRESUMPTION OF PATERNITY

It has long been the law in Pennsylvania that a child born to a married woman is presumed to be a child of the marriage. Freedman v. McCandless, 539 Pa. 584, 654 A.2d 529 (1995). See also, 23 Pa.C.S.A. § 5102(b). This presumption arose (a) to protect marital integrity and (b) to prevent a child from being labeled a "bastard" child, a classification that carried both a social and a legal stigma. *fn3 Modern laws, however, have erased the legal stigma of children born out of wedlock, hence depriving the presumption of one of its original purposes. 23 Pa.C.S.A. § 5102. *fn4

The goal of protecting marital integrity is also futile in a society where legal marital status does not always translate into a loving, intimate, monogamous relationship. *fn5 The presumption that a child born to a married woman is a child of the marriage is dubious at best and in many cases, such as here, is absurd. We are living a fable, both morally and legally, if we think that a family is typified by "Father Knows Best," where parents and children love and respect each other and where husband and wife are faithful to each other and adultery is merely a figment of one's imagination. *fn6 Thus, the presumption that a child born during coverture is a child of the marriage has lost its place in modern society, especially considering the scientific testing available both to prove and to disprove paternity.

The Majority takes the first step today in updating this ancient concept to conform with modern-day realities. Accordingly, I concur with the Majority's holding that the presumption of paternity does not apply where its purpose is not served. *fn7 However, the time has come to take the next logical step in the evolution of paternity law and expand the means of rebutting the presumption.

Knowledge of biological parentage is of paramount importance for a variety of reasons, including: discovery of genetic medical conditions, especially those conditions that medical science can prevent or successfully treat when discovered at an early stage; satisfaction of a child's innate desire to know his or her biological parents, as we often observe with adopted children; placement of moral and economic responsibility; and preservation of the rights of biological parents. Because of the significance of this determination, a party should not be unnecessarily restricted in his or her attempt to establish paternity. Therefore, I disagree with the Majority's statement that the presumption, when it does apply, may only be overcome with proof of the husband's non-access to the mother, *fn8 or his inability to procreate. Technology has advanced to a level where blood tests can exclude a man as the father with a 98% degree of reliability. *fn9 Therefore, when the presumption does apply, blood tests should also be available to parties to rebut the presumption of paternity.

The Uniform Act on Blood Tests to Determine Paternity (the Act) expressly permits the use of blood tests in any case where paternity is a relevant issue. 23 Pa.C.S. § 5104. The Legislature adopted the Act because reliable scientific evidence excluding a man as the father of a child is imperative in any suit where paternity is an issue, particularly where the child was born during wedlock. Tyler v. King, 344 Pa. Super. 78, 86, 496 A.2d 16, 20 (1985). Section 5104(c) of the Act confers upon the courts the authority to compel interested parties to submit to blood testing as follows:

§ 5104. Blood tests to determine paternity

(c) Authority for test.-- In any matter subject to this section in which paternity, parentage or identity of a child is a relevant fact, the court, upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to the tests, the court may resolve the question of paternity, parentage or identity of a child against the party or enforce its order if the rights of others and the interests of Justice so require.

The effect of the test results on the presumption is found in subsection (g), which provides:

(g) Effect on presumption of legitimacy. -- The presumption of legitimacy of a child born during wedlock is overcome if the court finds that the Conclusions of all the experts as disclosed by the evidence based upon the tests show that the husband is not the father of the child.

23 Pa.C.S. § 5104. The rules of statutory construction, 1 Pa.C.S. § 1501 et seq., dictate that we should give words and phrases in a statute their plain meaning unless they are terms of art. 1 Pa.C.S.A. § 1903. Section 5104(g) clearly and expressly provides that the presumption of paternity is overcome if the tests show that the husband is not the father of the child. *fn10 Yet, Pennsylvania courts have strenuously avoided employing the statute to compel blood tests absent a showing first that the presumption is overcome with evidence of the husband's non-access to the mother during the period of conception or his sterility or impotency.

For instance, the Superior Court has held that where a husband attempts to deny paternity of a child born during wedlock, he may not compel blood testing of himself, the mother and the child without first overcoming the presumption of paternity with common law evidence. McCue v. McCue, 413 Pa. Super. 71, 604 A.2d 738, allocatur denied, 531 Pa. 655, 613 A.2d 560 (1992). Similarly, in Scott v. Mershon, 394 Pa. Super. 411, 576 A.2d 67 (1990), the Superior Court prohibited a mother from compelling blood tests of a third party because she had not first rebutted the presumption of paternity with evidence of her husband's non-access or inability to procreate. See also Paulshock v. Bonomo, 443 Pa. Super. 409, 661 A.2d 1386 (1995), allocatur denied, 544 Pa. 669, 677 A.2d 840 (1996) (prohibiting the mother from utilizing blood tests that exclude the husband as the father to overcome the presumption of paternity, which also prevented her from presenting evidence of the putative father's probability of fatherhood). The courts' threshold requirement of common law proof to rebut the presumption is clearly erroneous pursuant to the Act, which explicitly provides that blood tests are an alternative method of rebutting the presumption. 23 Pa.C.S. § 5104(g).

Furthermore, Section 5104(c) permits "any party" to request blood tests, which would include the mother, the child, the husband or a putative father. Accordingly, a third party who stands outside the marriage and claims paternity of a child born during wedlock is authorized to request blood tests of himself, the child, the mother and the husband to overcome the presumption. In John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), this Court, however, denied a third party the ability to compel the husband to submit to blood tests to disprove the husband's paternity. This decision was based on public policy, including the Commonwealth's interest in protecting intact marriages. We stated the following:

It is true that the Act relaxes the presumption "to some extent" for it explicitly provides that the presumption "is overcome if the court finds that the Conclusions of all the experts as disclosed by the evidence based upon the tests show that the husband is not the father of the child." [23 Pa.C.S. § 5104(g)]. However, the Act does not relax the presumption to the extent that a "putative father," a third party who stands outside the marital relationship and attempts to establish paternity over a child born to the marriage, may compel the "presumptive father," the husband, to submit to blood tests on the strength of such evidence as has been presented herein.

Id. at 316, 571 A.2d at 1384-85 (citations omitted). This interpretation is in direct conflict with the plain language of the Act. See 23 Pa.C.S. § 5104(c). Moreover, denying a putative father the opportunity to challenge the husband's paternity and establish his own biological parentage, effectively terminates his parental rights without due course of law. Accord, In re J.W.T., 872 S.W.2d 189 (Tex. 1994). *fn11 Because I find that a parent or child's interests in determining paternity outweigh the Commonwealth's unavailing interest in preserving intact marriages, I would hold that, in accordance with the Act, any party to an action in which paternity is a relevant fact may request the court to order all parties to submit to blood tests. These results would then serve to rebut the presumption, irrespective of common law evidence. 23 Pa.C.S. § 5104(c). We would be both naive and remiss to perpetuate the strength of this presumption and ignore the results of reliable scientific tests; especially where, as here, the putative father has admitted to having engaged in sexual conduct with the mother during the period of conception, has accepted the child as his own, and has supported the child for the first two years of her life.

Pennsylvania is fast becoming one of only a minority of states that does not accept the results of blood tests that disprove the husband's paternity to rebut the presumption. Approximately two-thirds of the states currently have statutes permitting blood tests to be considered in the determination of paternity. *fn12 HOMER H. CLARK, JR., 1 THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 340 (2d ed. 1987). The United States Supreme Court has accepted the evidentiary value of blood grouping tests to disprove paternity as follows:

As far as the accuracy, reliability, dependability -even infallibility -- of the test are concerned, there is no longer any controversy. The result of the test is universally accepted by distinguished scientific and medical authority. There is, in fact, no living authority of repute, medical or legal, who may be cited adversely . . .. There is now . . . practically universal and unanimous judicial willingness to give decisive and controlling evidentiary weight to a blood test exclusion of paternity. S. Schatkin, Disputed Paternity Proceedings § 9.13 (1975).

Little v. Streater, 452 U.S. 1, 7, 68 L. Ed. 2d 627, 101 S. Ct. 2202 (1981). We should join the majority of states and accept these reliable scientific tests to rebut the presumption that a child born to a married woman is her husband's child. *fn13

For example, in S.E.B. v. J.H.B., 605 So. 2d 1230 (Ala. 1992), the Alabama Supreme Court granted a mother's request to compel her husband and the putative father to submit to blood testing to determine the paternity of a child born during wedlock. In Alabama, the "presumption may be overcome only by clear and convincing evidence that tends to show that it is naturally, physically, or scientifically impossible for the husband to be the father." Id. at 1232. Similarly, in Hawaii, a presumptive father may request blood tests to disprove his paternity. Doe v. Roe, 9 Haw. App. 623, 859 P.2d 922 (Haw. 1993). New Hampshire employs a more relaxed presumption of paternity, which "may be rebutted under [] common law by satisfactory proof that the husband is not the father," including blood tests, testimony by experts or others, medical or scientific evidence, statistical probability evidence, physical resemblance between the child and the putative father, or acquiescence by the mother and her husband. Bodwell v. Brooks, 141 N.H. 508, 686 A.2d 1179 (N.H. 1996). In Illinois, once blood tests exclude a husband as the father, the court may presume that an alleged father is the biological parent if (1) the blood tests of the alleged father do not exclude him as the father and (2) there is a probability of at least 500 to 1 that he is the father. People ex rel. Stockwill v. Keller, 251 Ill. App. 3d 796, 623 N.E.2d 816, 191 Ill. Dec. 226 (Ill. App. Ct. 1993). Utah requires blood tests in any case where paternity is an issue, and the results may conclusively rebut the presumption of paternity. In re Schoolcraft, 799 P.2d 710 (Utah 1990). But see Colorado - M.R.D. v. F.M., 805 P.2d 1200 (Colo. Ct. App. 1991) (party to the marriage not permitted to challenge husband's paternity beyond the five-year statute of limitations even where a competing presumption arose from blood tests that resulted in a 99.86% probability that the alleged father was the biological parent of the child); and Iowa - Dye v. Geiger, 554 N.W.2d 538 (IA 1996) (prohibiting an ex-husband from overcoming his presumptive paternity with genetic tests positively establishing another man's paternity when such rebuttal is not in the child's best interest).

California has a more liberal approach and permits the presumed father, the husband, or the child to rebut the presumption with blood test evidence. Cal. Fam. Code § 7541. Interestingly, a man may be a "presumed father" if he satisfies at least one of the following criteria: he and the mother are married at the time of the child's birth; the child is born within 300 days of the termination of the marriage; the couple has attempted to marry before or after the child's birth; or the man receives the child into his home and openly holds out the child as his own. Cal. Fam. Code § 7611.

Pennsylvania's approach to establishing paternity is clearly outdated. The unwavering interests in definitively determining biological parentage mandate that we permit the use of blood tests to rebut the "limited" presumption.

ESTOPPEL

Regardless of whether a party successfully rebuts the presumption of paternity, or the presumption does not apply, a party may nevertheless be estopped from denying the paternity of the husband if either the mother or the husband holds the child out to be a child of the marriage. John M. The theory supporting this concept is that once the husband forms a parent/child relationship with the child, neither he nor the mother should be permitted later to destroy that relationship because of marital discord. Fish, at *12.

The Majority, however, seems to misunderstand the concept of paternity by estoppel by holding that this case should be remanded to determine whether Lisa is "estopped" from denying her ex-husband George's paternity. Here, neither Lisa nor George ever held Audrianna out to be a child of the marriage. The evidence clearly demonstrates that Lisa never misled George to believe that he was Audrianna's father, nor did she lead anyone else to believe that George was the father. Likewise, George denied his paternity before the child was born, never supported the child financially or emotionally, and never formed a parent/child relationship with the child. Moreover, King, the putative father, accepted the child as his own, paid child support, provided medical insurance, and offered emotional support and parental guidance to Audrianna. It was not until Lisa sought court-ordered support that King denied his paternity. It is clear, therefore, that neither George nor Lisa is estopped from denying George's paternity.

ESTABLISHING PATERNITY

Therefore, the next step is to establish who is the father. Logic dictates that once a party overcomes the presumption, or the presumption does not apply, the case should be treated as if the child were born out of wedlock. The paternity of a child born out of wedlock is addressed by 23 Pa.C.S. § 4343, which permits a court to compel genetic testing *fn14 of any relevant party. Section 4343 states that genetic test results indicating a 99% or greater probability that the alleged father is the biological parent creates an affirmative presumption of paternity that may only be rebutted with clear and convincing evidence that the test results are unreliable. *fn15 23 Pa.C.S. § 4343(c). This approach should apply equally to a determination of the paternity of a child born during wedlock where either (a) the presumption does not apply, or (b) the presumption was overcome.

Conclusion

Therefore, I concur with the Majority's decision to the extent that it holds the presumption of paternity does not apply in cases where there is no marital relationship to preserve. However, I Dissent from that portion of the Opinion remanding for a determination of estoppel, because I believe that there is no such question in this case. Instead, I would remand this case for blood testing of King, Lisa and Audrianna to finally resolve the issue of Audrianna's biological father.

Mr. Justice Castille joins in this Concurring and Dissenting Opinion.


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