Paternity by Estoppel?

In a legal proceeding involving the paternity of a child, one of the strongest presumptions at law is that, absent some irrefutable and clear evidence to the contrary, the child will be deemed to be the natural child of the husband.  Until recently in applying this doctrine of paternity by estoppel, about the only evidence deemed “irrefutable and clear” was proof that the husband was impotent or had no access (such as being abroad at war) at the time when conception could have occurred.

The policy that drives such a presumption is clear; legislatures and courts strongly favor preservation of the family unit and are loathe to label a child “illegitimate” with all of its dire consequences.  (Has there ever been a concept more brutal than designating a newborn child “illegitimate”?)

But things have changed.  With DNA testing, a fairly inexpensive, quick, and certain test is now available to determine with nearly 100% accuracy just who the father of a child is.  You would think that clearly this would cause the courts to change the rule    but you might be wrong.  The desire to preserve the sanctity of a family is so strong, that the rule is still applied.  Even though a husband has been determined through DNA testing not to be the biological father of his wife’s child, he might still be “deemed” to be the father with all the responsibilities imposed (mainly support for at least the first 18 years of the child’s life).

In preserving the doctrine of paternity by estoppel, the court insists that it is driven in its reasoning by what is in the best interest of the child.  In a case out of York County, K.E.M. v. P.C.S., the Pennsylvania Supreme Court in a 5-2 ruling has determined that irrespective of DNA test results to the contrary, a husband was deemed to be “legally” the father of a child who was conceived by a different man.

In that case the mother admitted to her husband before the child’s birth that she had been having an extra-marital affair and that it was possible that her husband was not the father (later to be confirmed by DNA testing).  Apparently, after hearing the news the husband and wife reconciled their differences, and he afforded emotional and financial support to his wife during the pregnancy and afterward when he held himself out as the child’s father.
Subsequently, however, the parties separated, and the husband sought to be released from any further parental responsibility.  The Court’s ruling was that because the child was born in wedlock and because the husband assumed the duties of a father, he was estopped (i.e. prohibited) from denying his paternity.  The Court stressed emphatically that it acted to protect the best interest of the child.

As you might imagine, the ruling has its detractors.  The two dissenting judges were appalled that the husband’s reward for acting nobly and assuming his paternal duties, at least for a while, was to be saddled with the child’s support for 18 years or more.  And at the expense of the husband, the bad guy in the scenario, the biological father, escapes all responsibility for the child’s support.

The dissent was vigorous; and there is a strong likelihood that either by legislative fiat or eventually a reversal by the Supreme Court, the rule will be changed.  Although the doctrine of paternity by estoppel may have made sense when it was created, long before DNA testing, when paternity could not be clearly established, it may be time to acknowledge science’s advances.  The dissenters observed that it is unrealistic to expect the rule to preserve the sanctity of the family when there is irrefutable evidence as to whom the biological father is.  The dissenters would abolish the rule altogether.

Ken Butera


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