It can go without saying that relationships are in a state of flux these days. In 1980 less than one baby in five was born outside of marriage. Today it’s 40%. Until 1980 you couldn’t get a divorce without proving your spouse was a bad person. Today about half of marriages end in divorce and in a forty year career doing this work, I tried exactly one fault divorce. Perhaps most telling about how marriage has changed on the past 40 years is recent data reporting that just about one-third of Americans don’t think monogamy is the “best” way to conduct a marriage. https://d3nkl3psvxxpe9.cloudfront.net/documents/Monogamy_NonMonogamy_Relationships_Toplines_crosstabs.pdf .  In 1980 anyone even asking that question would have had their sanity questioned rather than their marital intent.

Enter B.C. v. C.P. and D.B., a paternity case decided by a unanimous court on January 29 with Justice Wecht concurring. The facts reflect the new reality of marital relationships. C.P. and D.B. married in 2016. Roughly a year later C.P. checks in for some addiction treatment and encounters a fellow traveler, B.C.  In 2018, after rehab, C.P. and D.B. separate and while that separation is underway, friend and former patient B.C. stops by to spend some time with C.P.  Suffice to say that in October 2018, B.C. had sex with both her husband and her friend and became pregnant along the way. But then there is a marital reconciliation. In March 2019 C.P. learns that she is five months pregnant. In June a baby comes along and husband is named as father on the birth certificate. BUT…..C.P. does take that baby to see B.C. and informs him that notwithstanding the marriage and the birth certificate, he is the real dad. In fact, B.C. is employed to provide some child care while C.P. resumes employment as a registered nurse. What D.B. knew or said about that arrangement is not mentioned.

In Spring 2020 there is a another split between mom and her husband. This time Mom (C.P.) moves in with B.C. Husband (D.B.) would see the child on weekends when B.C. would bring the baby over to the once marital residence. By late Summer 2020 the B.C. & C.P. relationship is also over and mom moves where? While back with her husband (D.B.) B.C. returns to rehab and in November 2020 C.P. brings the kid (now 17 months) for another visit with B.C. A bit more than a month after that visit, guess who separates for the third time? This time husband files for divorce and the couple reaches a joint custody agreement. Almost instantly after that filing and an agreed custody order (in which B.C. is not named as a party) the couple reconciles again.

In August 2021, B.C. files an action to have paternity determined. Now the thrice separated couple move to dismiss this claim because as an intact family they are allowed to invoke an irrebuttable presumption that the baby is theirs and B.C. has no right to sue.

There is a hearing in Westmoreland County about this in April 2022. At the hearing the married couple professes that they are back together for 14 months, the child has special needs related to autism and B.C. is a distraction. The idea that B.C. could be involved with the child he babysat, once provided a home to and saw while in rehab is “preposterous.” As for B.C., he seems to have agreed to or asked for genetic testing to confirm parenthood. He professed his delay in seeking custodial rights was caused by his substance abuse and need to first secure treatment. The trial court ordered the testing to proceed which prompted an emergency appeal to the Superior Court to block the testing.

Here we should pause to acquaint the lay reader with some law. Long, long ago, when issues like this arose, paternity “testing” consisted of holding the infant up to the judge or jury to decide if the kid looked like Candidate Father No. 1 or No. 2. There was no scientific means to better decide which was daddy. Back then there was a huge stigma associated with a child born outside the marriage. And because marriage was part of society’s “fabric” it was held that a child born to an intact marriage was irrefutably that of the husband even if the kid was the doppelganger of a fellow like B.C.

As marriage relationships acquired more on/off characteristics, the law began to evolve. “the presumption may be rebutted by clear and convincing evidence of a husband’s non-access, impotency, or sterility, the presumption is irrebuttable where the mother, the child, and the husband live together as an intact family and husband assumes parental responsibility for the child.”  B.S. v. T.M., 782 A.2d 1031 (Pa. Super. 2001). This idea from this line of cases was that there was no longer a need to protect a marriage that had disintegrated. A 1999 Supreme Court case Strauser v. Stahr  726 A.2d 1052 indicated that even if a husband had consciously ignored the possibility that he was not the father, he and his wife could exclude the father from custodial rights because their marriage merited that protection.

The trial court and the Superior Court in the present case found that the repeated separations coupled with B.C.’s frequent access to the child merited a paternity test as the marriage itself seemed to have a fragile history. The married couple appealed. B.C. did not participate in the Supreme Court proceedings.

The Supreme Court does a workmanlike job threshing the disparate rules that have evolved in settings where the preservation of marriage and privacy of the intact family confront the reality of infidelity and oft-times inconsistent response to that event. But here the majority concludes

“[T]he lower courts, in conducting their inquiry regarding whether Appellants’ marriage was intact for purposes of applying the presumption, erred by giving primary importance to their marital separations, which occurred prior to the filing of the paternity action, while giving no substantive consideration to the intact status of their marriage. While such separations and their attendant circumstances are, indeed, relevant to a determination of whether the marriage is intact, they are not dispositive. Accordingly, we reverse the order of the Superior Court, and remand to the trial court with instructions to grant Appellants’ motion to dismiss B.C.’s paternity action. In closing, we reiterate that this appeal does not present the issue of whether the presumption of paternity has outlived its usefulness in light of contemporary standards. Unless or until this Court abrogates the presumption of paternity in a case where that issue is preserved and fully developed, courts in this Commonwealth shall apply the presumption of paternity in the limited circumstance where its purpose to preserve marriage is advanced. See K.E.M., 38 A.3d at 806 n.4 “

The first problem with this kind of analysis is that the ruling pivots on when the case is heard. As it happened, this case was tried 15 months after the third reconciliation in a six year marriage. And each separation involves the same guy. Had B.C. filed for custody while he was providing day care in 2019, after the Spring 2020 split or the divorce filing in early 2021 it seems certain we get a different result. And for all we know, this couple could be divorced by now but sharing a common desire to keep B.C. out of the role of parent. The record closed in April 2022.

While timing is an issue, the far more compelling ones are constitutional. Although the principle of family privacy seems to be subject to U.S. Supreme Court review, Stanley v. Illinois and Troxell v. Granville remain the law and confer upon parents a constitutional right to manage their children. In this case, B.C. is foreclosed from even ascertaining his status as a parent in a setting where the mother told him he was a parent and asked him to discharge parental responsibilities to care for the child. The less discussed right in this setting is that of the child to have access to his/her father, assuming the genetic testing affirms that to be a reality. If that is the case, this three (now five) year old child should have some right to the care and comfort of the actual father. Again, I presume the testing confirms paternity but, there has been no testing while we focus on preserving a “family” afflicted with infidelity.

With the exception of paternity, nearly every reported family law case radiates with language celebrating the best interests of the child. In paternity cases, we seem to set that polestar aside in pursuit of the ephemeral rights of the intact family to privacy, even if it means depriving the actual father of any access to know whether this is his child. And we correspondingly usurp the right to the child to have any access to his or her father.

Justice Wecht concurs but observes that this is a place where the General Assembly might speak. As we noted at the top of this essay, we live in a day when infidelity is no longer a crime or a tort and where polls indicate that open marriage is gaining acceptance. Time will judge the wisdom of that, but this appears to be a case where a legal fiction prevails over constitutional rights and forecloses evaluation of a child’s best interests.