United States: New Twists In The Creeping Doctrine Of Paternity By Estoppel

Attorneys sometimes read appellate cases and wonders "why?" This is one such case; a case with any easy result made complicated and difficult for reasons not easily understood.

The facts of R.K.J. v. S.P.K. 2013 Pa. Super. 259 (9/26/13) are easily condensed. Man and woman have a multi-year relationship which borders upon marriage but that event never actually occurs. Along the way, a child is conceived and born even though the birth mother is still married to someone else. Because the relationship is "good" at the time the baby is born, the defendant goes to the hospital, participates in the birth and signs the proffered acknowledgment of paternity before mother and baby are discharged. He does so, even though he knows the child is not his. To this writer, the case is closed. Perhaps the man made a mistake but the one principle of law universally accepted even though not found in Purdon's or the body of judicial precedent is: "Don't sign anything unless you expect to be bound."

The facts get worse for this putative father. He and the mother continue their relationship and for the next six years he really does appear to play the role of father even though it appears someone else was the actual father.

The reader can guess the next part. Mother and "father" see their relationship disintegrate and mother decides to sue "father" for child support. The trial court decides the case on the principle of paternity by estoppel. The Superior Court affirms. The "father" asks the Supreme Court to review and they remand the case for consideration under their new decision in K.E.M.v. P.C.S.38 A.2d 3d 798 (2012)

Now, back in the trial court, the case starts to take on a surreal aspect. The Court appoints a psychologist to assess whether the defendant should be the father. The man renews a series of demands for blood tests, none of which is ever ordered. The psychologist renders an opinion that the child needs a father for all the reasons any layperson could figure out. The one reason that seems especially twisted is that since it is not clear who the real father may be, this man has an income and thus has the ability to support the child. So, voila the man is again declared to be "father" by estoppel even though the facts on which estoppel is traditionally based (e.g., written acknowledgment of paternity and in loco parentis conduct) seem to take a back seat to the psychological findings.

In olden days, paternity was decided based upon allegations of sexual access coupled with physical evidence that the child looked like the Father. In the late 1980s DNA evidence made it possible to determine with near arithmetic certainty whether a man was the Father. Throughout this period there was also the presumption that a child conceived during marriage was the child of the husband no matter what the facts. DNA testing has made a mockery of this latter doctrine but it still survives.

This case together with K.E.M. take us into dangerous new territory. All of it is built on the pure fiction that once a person is declared a "father" for whatever reason, he will want to act in a positive way. History has taught us that even fathers bound to their children by common DNA do not always do the right thing. Does anyone seriously believe that a father "trapped" into supporting a child not otherwise his for eighteen years is going to view the experience of being sued for support as an instructive enterprise? As attorneys advising clients, is it not now our responsibility to advise men who live with women who have children of uncertain parentage that any kindness, whether pecuniary or emotional, delivered to the child could create exposure for years of support premised upon the child's psychological perception of parentage and the "child's best interests?"

These are discomforting thoughts. When we have the scientific means to ascertain a real answer, it smacks of a return to common law legal fictions to say that we will ignore the science in favor of a perceived "best interest" as interpreted by a court appointed psychologist. Most common law legal fictions arose from the fact that we needed a scientific answer but could not secure one.

In this case, S.P. K. made a serious legal mistake when he acknowledged paternity without a blood test confirming his status. He compounded the mistake by embracing the child for only so long as his relationship with the mother endured. He could have been found liable for support based on the acknowledgment he signed or in loco parentis based upon his conduct in the succeeding years. But the concept that courts must now employ psychologists to help decide paternity based on a best interests analysis is fraught with the worst kind of peril; peril without purpose.

Post script: What makes this case all the more bizarre is the treatment of the man who was married to the plaintiff at the time she became pregnant. The defendant sought to join him as a party to the case. That request was denied. All the opinion offers us is that the child has never seen his alleged biological father. Query how this case can be decided without knowing positively the identity of the true father or considering the fact that under cases like Stanley v. Illinois 405 U.S. 645 (1972) the right to raise one's biological child is fundamental. If the plaintiff's husband (a) is the biological father and (b) was never told he had fathered this child, is there any constitutional basis to deny his petition for custody? Would S.P.K. also owe him child support if he demonstrated himself to be a more fit parent than the natural mother and secured primary custody?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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