V.L.-P. v. S.R.D., a published decision by a three-judge panel on January 6 breaks ice that has been forming since genetic testing first became accepted in the mid-1980s. It is a classic case pitting best interests of the child against science. This week, science won the first round but the Superior Court decision is not yet final. 2023 Pa. Supoer. 2

Many practitioners who might read this don’t realize how paternity evidence worked in the dark ages of 40 years ago. The baby would be brought to the courtroom so that either a jury or a judge could decide whether the baby “looked like” the accused father. Genetic testing wasn’t accepted science. But, if a man acted like a father there was the ability to contend he was estopped from denying paternity. Blood tests had been statutorily approved in 1961  28 P.S. 307.1 but it offered accuracy that did not come close to genetic tests. Meanwhile in Com. ex rel Weston v. Weston, the Superior Court observed (a) that it was “repulsive” for a person to claim parentage only to later question it (b) blood testing was not definitive and (c) two judges had been shot because of their roles in trying to decide paternity. 193 A.2d 782 (1963). Weston involved a case where a husband who was denying paternity of a child born to his wife. In 1990 the Supreme Court ruled that a person outside a marriage who claimed paternity of a child conceived during the marriage had no standing to secure testing to establish his paternity. John M. v. Paula T., 571 A.2d 1380 (Pa. 1980). The table was set between the fundamental right to be a parent and the sanctity of marriage.

V.L.-P. v. S.R.D. 2023 Pa. Super. 2 (2023) offers a familiar variant on these kinds of issues.  A.D. was born in October 2008 from a non marital off/on relationship between the two litigants. The trial court credits mother’s testimony that the couple had intercourse on Super Bowl Sunday in 2008 (the role of the NFL schedule in conception remains unclear). Mother informed Father that he was her only sexual partner at the time and based on his conduct, it appears Father accepted that as truth. So, there were joint obstetric visits, an invitation to be present for A.D.’s birth and a post-partem custody schedule accompanied by payment of child support. There was no custody order or order for payment of support.*  But, it would appear from a child’s perspective, that A.D. had no reason to suspect that S.R.D. was not her natural father. In fact, in 2020 while the pandemic caused Father to lose employment, he assumed shared physical custody. The absence of child support eventually prompted Mother to resort to court to secure an order for it. That’s when Father (better said “putative Father”) denied paternity and demanded genetic testing. Mother asserted estoppel premised upon 12 years of S.R.D.’s conduct and A.D.’s life experience with S.R.D. as his father.

The catalyst for this controversy is not new. S.R.D. and his current wife decided to explore their history on Ancestry.com in early 2020. When the results came back S.R.D. saw that A.D. was not listed as genetically linked to him. This prompted him to question whether there was another game underway in February 2008 besides the Giants and the Patriots. The Lebanon County Court demurred to that request in an opinion that sets forth A.D.’s relationship not just with S.R.D. but other family members. The blood test was denied and a support order imposed.

The Superior Court panel decides that paternity was a fact that needed to be known. As Judge Megan King observes, failure to do so might be an innocent mistake or it might be assisting in perpetuation of a fraud.

There is a tragic element to this. A.D. not only survived a pandemic but marked her twelfth birthday with S.R.D.’s abrupt departure from her life. Today, she is fourteen and lives in a world where the man she understood to be “Dad” has withdrawn and suggested that her mom perpetrated a fraud. The trial court appointed a guardian ad litem who interviewed the child and found what you might expect; a bewildered young woman who doesn’t really understand why the man she sees as her father has jumped ship and doesn’t know whether her mom lied to that man.

There is no band-aid for this harm. Paternity by estoppel does not take away the sting of being lied to about parenthood. It is possible that S.R.D. is A.D.’s father although mother’s argument  that a swab is more harmful than the “truth” certainly rings hollow. It is also possible that this was an innocent mistake or the triumph of “hope” (S.R.D. impregnated her) over “fact.” (He didn’t).

A generation ago I was appointed to a state bar association committee to discuss this issue. When I suggested that the correct answer was mandatory paternity testing at the time every newborn was discharged from hospital I was dismissed by my colleagues as unrealistic. But this case actually crystalizes the harm inflicted by “closing eyes” or “living a lie.”  A 12 year old has grown to 14 not knowing who her father is or whether her mother set up a fraud. What is that child to think about the people she has loved her entire life and whom she perceived as her loving parents until Ancestry.com intervened. Mandatory paternity testing does seem to be a harsh remedy until you look at the world from the perspective of A.D.

Not an easy decision by the Superior Court; but the right one. Today, paternal “truth” is attainable. And it makes no sense to suggest that a man who thinks he has been lied to should just suck up paying support and continue to maintain a relationship with a child. Yes, that may be what a gentleman should do. But it’s easy to say that when you aren’t the victim. In this case the courts, the litigants and the child have contorted themselves in a fruitless search for “best interests” where the central question will always remain: “Is he dad or not?”

*There was an acknowledgement of paternity signed by S.R.D. at the hospital. There was a time when the support law was first enacted where that created an estoppel in its own right and one must ask why create these  paternity acknowledgment forms if they are revocable.