As if life is not confusing enough, we saw a precedential Superior Court custody case published on September 6, 2023 which speaks to the brave, new world of parenting.

            S.J. is born in April 2020. Mom was then in a relationship with Kareem Smith. Kareem thought he was dad and sadly, the child’s mother died in May 2021 of causes not described in the opinion. Enter a new player, Victor Taylor. Mr. Taylor gets a paternity test which confirms that he is the actual father of S.J. Paternity seems to be undisputed once the test results came back in July 2021. One month later Mr. Taylor files a custody action. The Lycoming County Court has a proceeding in September directed toward introducing Taylor to S.J. After three conferences the Court imposes an interim order of shared physical and legal custody. It does so based upon a finding that Mr. Smith’s involvement as perceived father for more than a year conferred in loco parentis status under K.W. v. S.L. 157 A.3d 498 (Pa. Super 2017).

            A custody hearing was held in February 2023. Father’s position at trial and on appeal was that Smith was effectively an interloper who was interfering with Taylor’s rights as the parent. Three weeks after the trial the court affirmed its interim shared physical and legal custody order.

            The appellate court walks us through the statutory analysis. Essentially, as we often see, they note appellate courts have broad powers where custody is at issue but that they need to be shown an abuse of discretion. They also visit that constitutional altar which says that a natural parent has a prima facie right to custody in proceedings involving a non-parent. But then the Court writes that notwithstanding this heavy presumption, the proverbial custodial polestar remains the best interests of the child. The actor in the child’s life playing the role of In Loco Parentis needs to show clear and convincing evidence that the natural parent’s prima facie rights are not consistent with the child’s best interests.

            The evidence cited in the appellate opinion does make this a challenge. The parties seemed to have told the court that notwithstanding their awkward circumstances, they have been civil and cooperative during the nearly two years this case consumed. The trial court performed its 16 part custodial analysis under 23 Pa.C.S. 5328 and concluded the factors weighed equally. Mr. Taylor’s view was that should be enough to “win” since he was undeniably the child’s natural father.

            One can’t fault the analysis we see of either the Lycoming or Superior Court. But, underneath the surface of this case is the lingering question of whether mothers have a right to hide paternity and whether there is any reason to suggest that genetic secrecy is in the innocent child’s best interest. We don’t have the detail here, but it seems that S.J.’s late mother was having a sexual relationship with both Messrs. Taylor and Smith. When S.J. was born, Smith was “in the lead” so to speak so everyone proceeded on the basis that Smith was dad. That understanding survived for 15 months during which mom died and Mr. Taylor secured a test showing that he was dad. Now, perhaps Mr. Taylor should have known better and slumbered on his custodial rights. That’s not in this record. But by July, 2021 Taylor was informed and a month later he acted. So, barring other circumstances, S.J. will grow up with two parents who have no relationship except that formed by his mother’s sexual proclivities. This writer may be presumptuous, but chances are that mom did not return from the delivery room to tell two men that paternity was a coin toss. Yet, two men, and a 3 year old child will live with that consequence forever.

Within the domestic relations community there is a debate about these cases. In the typical case we are used to seeing, a married couple gives birth to a child assuming that all is as the Bible suggests it should be. We have seen cases where a child is raised in an intact household but when things fall apart, a now suspicious “dad” resorts to getting a paternity test because his child looks a lot like the neighbor, the milkman, the personal trainer or the softball coach. When those results come back, all hell breaks loose, leaving an adolescent child in the worst imaginable position. We would like to think that a man in such a position would do the right thing and leave matters alone. But, folks, that is not the world we live in and can you really blame a father who has been living a lie for more than a decade for being outraged.

Some of us in the family law world have suggested that paternity testing should be mandatory shortly after a child is born. Others say that this is an unnecessary intrusion into the privacy of a family. To those privacy advocates, I respond that as a member of the “family” I might be entitled to know if there are other individuals who have “family benefits.” And if they do, perhaps they might be willing to pony up for some “family responsibilities.” This isn’t just a “family issue.” Forty percent of the kids born in Pennsylvania in recent years are born out of wedlock. Many parents are raising and supporting kids that may not be theirs. We can applaud those who do. But if the facts aren’t what they seem, it would be in the interests of all, including the child, to have the true facts revealed sooner than later.

Taylor v. Smith, 2023 Pa. Super. 160 (9/6/2023)

J-S24031-23o – 105660776238054373.pdf (