We live in interesting times. We have recently reported on significant cases discussing who has legal standing to seek custody of a child and whether that “standing” comes with a child support obligation. But one bedrock that has been around for a while is what is called the presumption that a husband is father unless someone proves he had no access or was incapable of procreation.
It has been a presumption which today stands despite the fact that science now allows us to show otherwise. Genetic testing has been around for about 20 years and today it is considered the standard. But the presumption of paternity is an interesting one. “A” may sleep with “B’s” wife but if wife becomes pregnant and B decides that he wants to play dad, the fact that “A” can prove that he is the real father is of no consequence. That’s the law of Pennsylvania although this author believes it has some constitutional weaknesses.
In M.L. v. J.G.M, a case decided on January 4, 2016, the two parties were married in 2001. They separated in late 2011 and divorced in September 2014, they had one child together who is today 10 years old.
As is happening with some frequency, the once separated Father started to have some thoughts about whether his child was, in fact, his child. Today, paternity tests are freely available so he administered one on the child (typically it involves an oral swab) and the test came back excluding him as the father. Almost two years after separation he filed a petition in Berks County to terminate support. He also sought blood testing within the court system to confirm that his drugstore test was accurate. Mother filed to prevent the test. The Berks County Court ordered the blood test because the marriage was no longer intact and the parties having been divorced several months before the motion was heard.
But the battle did not end there. The Superior Court had to wrestle with the Supreme Court’s ruling in K.E.M. v. P.C.S., 38 A.3d 798 (2012). There the court held that paternity by estoppel will apply only where the doctrine promotes the best interests of the child. In that case the father continued to promote his role as father even after learning from a biological viewpoint that the facts were not with him. The Supreme Court ruling contained an eloquent reflection on how the passage of time leaves the child with no hope of finding the actual parent and the clear harm of losing the only father the child had known. The language is moving but, unfortunately, science “moved” faster.
In current case as well as an earlier Superior Court case decided in 2011 (R.J.K. v. S.P.K., 32 A.2d 3d 841), the matter was remanded to develop a full record including psychological testimony related to the bond between the child and the presumed father. The opinion of Judge Lazarus does a thorough job of analyzing what courts are to look to when building that record. But, build it as you may, when the dust settles there are going to be some angry adults and a bewildered child. Typically we assume that these children are accidents or the product of loose morals on the part of both biological parents. But not every man who sleeps with a woman gets an honest answer about her marital status or her views on birth control even if he does inquire.
And the forgiving husband who adopts the child of the casual relationship despite the infidelity may not always remain so honorable or caring. The difficulty we face today is that anyone can buy and employ a genetic testing service. So while a Court may rule that “B” is officially Father in the Courtroom and the schoolhouse, it can’t, in practical terms try to prevent “A” from reaching out to his child or compel “B” to maintain a physical or emotional relationship. In this case, it appears that damage has been done as J.G.M. terminated contact with the child just after her eighth birthday. We can label him “dad” and we can compel him to pay support for her. But we can’t make him love her or “fix up” a family for this innocent child.
Almost twenty years ago, I was appointed to a committee of the state bar association to address this presumption issue. I was and, remain in a decided minority when I suggested that there be mandatory paternity testing at the hospital before a child is released. If that had been done in this case the cards would have been on the table. And knowing that the testing would be required, many couples would be forced to be more honest early on. The trouble is that far too often, a secret is kept and the longer it is kept, the more damaging it becomes to the child involved.