Last month we posted about a new Supreme Court decision seeking to keep paternity by estoppel alive.   This week brings us a precedential case from the Superior Court that illustrates just how chaotic this attempt to “preserve the family” has become.

David and Tauna Kish were married in 2015. In 2018 they had their third child whom we will call C.K. They remain married as of today so far as the appellate record reveals. But then we learn that while the marriage subsisted their cohabitation was sporadic and that Ms. Kish began her relationship with Michael Knecht shortly after she married Mr. Kish.

While pregnant with C.K. it seems that Ms. Kish lived at various times with Messrs. Kish and Knecht and, depending upon schedules, one or the other attended her obstetric appointments. Knecht testified that he was present for C.K.’s birth and signed “paperwork” acknowledging paternity although no father is identified on the birth certificate. The certificate does show the child having the surname Knecht.  Curiously, Mr. Kish says he drove his wife to and from the hospital for the child’s birth but he acknowledges that he didn’t stay for the birth proceedings. And he admits that he dropped his wife and C.K. off at Mr. Knecht’s home when mother and child were released from the hospital.  Two to three months after that “delivery” mother and her boyfriend were evicted from their common abode and C.K. ended up living with presumptive father, his presumptive siblings and his presumptive paternal grandmother at granny’s house That arrangement has continued since May 2019.

As you may have sensed, there are suggestions that Ms. Kish has substance abuse issues. She has also resided from time to time since 2019 with her husband and his mother. In September 2019  mother signed a document conferring temporary custody to her boyfriend’s mother  but the document states she was living in the same household at the time. The Superior Court opinion finds significant that C.K.’s presumptive father is a registered sex offender under Megan’s law. 42 U.S.C. 14071.

In January, 2020 the boyfriend’s mother filed for shared physical custody. Her son is not named as a party, yet an agreement is made by which mother had primary, boyfriend has partial and the court awards boyfriend’s mom some time each month. The order names boyfriend as C.K.’s father but father was not a party to the case. Curiously, the opinion suggests that despite this court order, C.K. continued to reside primarily with his presumptive father and presumptive grandmother.

In January 2023 the maternal and paternal grandmothers each file for additional time. This time husband (the appellant) is named as a party. An evidentiary hearing with all parties’ present takes place a week after the filing. At the hearing, the husband and presumptive father said he knew custody proceedings were taking place but made no effort to intervene. Following the hearing, husband filed a motion to confirm his status as C.K.’s father. The court suspended further custody proceedings in order to  ascertain who really is C.K.’s father.  Another hearing was held on April 12, 2023. Mother did not attend; again, that may be related to substance issues. Presumptive father said he and mother remained married; he had “access” when C.K. was conceived and he was not sterile. He has had primary custody since May 2019, a period of four years. Capping it all off, he testified that he did not know there was a custody dispute underway until just before he filed. The appellate opinion tells us that presumptive father’s brief acknowledges the marriage is on/off.

Mom’s boyfriend did attend the hearing and testified about C.K. calling him Dad and the involvement in obstetric appointments. Then he offered a bit of gratuitous testimony we hoped could be avoided once HLA blood and genetic testing became available: “C.K. looks just like me.”

The Trial Court awarded the testing, which was interrupted for nine months by this appeal. The Superior Court affirmed reciting all the established cases talking about presumptions and family preservation.

This is a precedential decision. It will decide who is father. But it also illustrates the diminished state of the American family. Candidly, there is no family here and it’s not certain that there ever was one. As we see in dozens of cases each year, grandparents have become the EMS of  American family life. What is especially problematic in this case is that we have a child entering first grade who doesn’t know who his father is; a fact that could have been easily and instantly decided six years ago. Instead, we have an appeal by a presumptive father who rightly or wrongly professes he did not know his presumptive child was the subject of more than two years of litigation. As I write this, algorithms following my typing are feeding my laptop invitations to buy a kit to perform paternity testing at home. Meanwhile, the child, the trial court and the taxpayer are left to wonder how paternity is not yet legally confirmed. There are places in the law where legal fictions help to promote consistency and stability. This case demonstrates that today the presumption of paternity does just the opposite of what the policy was intended to promote. Not only are families more fragmented than ever before, but a paternity test is right down the street at your local pharmacy.

If we roll the camera back a few feet from this convoluted case, we have a six-year-old child who has consistently lived on a primary basis with his presumptive father for nearly five years. Meanwhile his actual mother and her boyfriend have engaged in custody litigation while presumptive father stood “idly by” having de fact primary physical custody while courts entered agreed orders that confirm other arrangements. We have lots of litigation over who holds the crown called “Dad” while three children (recall C.K. has two siblings) live primarily with a father who, for an unspecified time, could not be alone with the children because of his sex offense history (recall the Megan’s law piece which the opinion says is now over).

The stated goal of paternity presumptions has always been to preserve the family. This case sadly illustrates that the challenge courts are facing more and more is to identify the family they are supposed to preserve. Here we have a 24 page precedential opinion that offers us not a word about what’s going on in the world of C.K. and whether these custody arrangements work. This fight is just over who’s daddy.

Kish v. Kish and Knecht 2024 Pa.Super. 23 (2/12/2024)