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Paternity Fraud

Establishing paternity can be as simple as the father executing a voluntary acknowledgment of paternity form. The acknowledgment indicates the father is waiving his rights to any genetic testing or trial on the issue of paternity. An acknowledgment acts as conclusive evidence that the person who signed the acknowledgment is in fact the father of any subject child(ren). Once an acknowledgment of paternity is signed, it is very difficult for a father to then try to allege the child is not his. 23 Pa. C.S. Section 5103(g) discusses grounds for rescission of an acknowledgment. It can be revoked within the first sixty (60) days of signature. After 60 days, it can only be rescinded by court order following a hearing. A hearing can be requested by filing a Petition with the court.

The party challenging paternity must prove, by clear and convincing evidence, that there was fraud, duress or material mistake of fact when signing the acknowledgment. Even if a party believes they can prove one of the above, there is a second hurdle based on the concept of paternity by estoppel. Paternity by estoppel acts to impose an obligation on the party who holds themselves out as a father to the child and supports the child to continue to support the child even if there is no biological connection. The Pennsylvania Supreme Court has held that the purpose of paternity by estoppel is to protect the best interest of the child by shielding them from claims of illegitimacy and, potentially, a broken family. The courts have refused to order genetic testing to revisit paternity if a party has been acting as a Father under this legal principle. You should never sign an Acknowledgment of Paternity if you have any doubts about the actual parentage of the child. Instead, you should file for genetic testing right away before assuming the role of parent, caring for the child, and building that relationship.

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Paternity Fraud

Establishing paternity can be as simple as the father executing a voluntary acknowledgment of paternity form. The acknowledgment indicates the father is waiving his rights to any genetic testing or trial on the issue of paternity. An acknowledgment acts as conclusive evidence that the person who signed the acknowledgment is in fact the father of any subject child(ren). Once an acknowledgment of paternity is signed, it is very difficult for a father to then try to allege the child is not his. 23 Pa. C.S. Section 5103(g) discusses grounds for rescission of an acknowledgment. It can be revoked within the first sixty (60) days of signature. After 60 days, it can only be rescinded by court order following a hearing. A hearing can be requested by filing a Petition with the court.

The party challenging paternity must prove, by clear and convincing evidence, that there was fraud, duress or material mistake of fact when signing the acknowledgment. Even if a party believes they can prove one of the above, there is a second hurdle based on the concept of paternity by estoppel. Paternity by estoppel acts to impose an obligation on the party who holds themselves out as a father to the child and supports the child to continue to support the child even if there is no biological connection. The Pennsylvania Supreme Court has held that the purpose of paternity by estoppel is to protect the best interest of the child by shielding them from claims of illegitimacy and, potentially, a broken family. The courts have refused to order genetic testing to revisit paternity if a party has been acting as a Father under this legal principle. You should never sign an Acknowledgment of Paternity if you have any doubts about the actual parentage of the child. Instead, you should file for genetic testing right away before assuming the role of parent, caring for the child, and building that relationship.

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Presumption of Paternity

A presumption of paternity arises where a child is born into an intact marriage. In that circumstance, absent clear and convincing evidence to the contrary, the husband will be deemed to be the father. Paternity by estoppel acts to impose an obligation on the party who holds themselves out as a father to the child and supports the child to continue to support the child.

In K.E.M. v. P.C.S. 29 A.3d 843 (2012), Appellant, mother of G.L.M., brought an action for support against Appellee, the alleged father of G.L.M. Appellant was married to H.M.M. at the time G.L.M. was born. Further, H.M.M. had supported the child and acted as a father figure to G.L.M. for most of the child’s life. Appellee filed a motion to dismiss the support action on the basis of a presumption of paternity and paternity by estoppel.

Appellee’s argument that H.M.M. had acted as G.L.M.’s father prompted the lower court and Superior Court to grant his motion to dismiss the support action against him and continue to hold H.M.M. responsible for G.L.M.’s support. In this case, H.M.M. submitted to a paternity test which ruled him out as the father. Accordingly, the presumption of paternity was defeated.

The Supreme Court of Pennsylvania ultimately reversed the decision and remanded back to the lower court for further proceedings. Specifically, the Supreme Court held that the purpose of paternity by estoppel is to keep families intact and protect the best interest of the child by shielding them from claims of illegitimacy and, potentially, a broken family. Accordingly, the court would need to be convinced that it was in the best interests of G.L.M. to continue to recognize Appellant’s husband, H.M.M., as the father. No such evidence was presented at the hearing. In summary, paternity by estoppel is still a viable principle in Pennsylvania, however, it must be supported by an analysis of what’s in the child’s best interests to succeed.

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Putative Father Registry

A putative father is a man whose legal relationship to a child has not yet been established. This may occur in a situation where the Mother of a child is not married and she alleges someone as the father or the man believes he is the father. Pennsylvania maintains a registry of putative fathers for the purpose of giving a man in such a position notice prior to any termination proceedings. Unmarried parties can agree to execute an acknowledgement of paternity to confirm the legal relationship. This acknowledgment is then submitted to the Department of Vital Records to update the birth records. If the parties are not agreeable to execute the acknowledgement, the alternative course of action is to file a petition for genetic testing.

Both parents will be ordered to participate in genetic testing. Failure to appear by the father can result in a court order declaring him as the father by default. Failure to appear by the mother can result in the court dismissing an action for support. Tests results alone are not sufficient to establish paternity. Instead, the parties must stipulate in writing that the test results prove paternity or the court must make an order on paternity after reviewing the test results. Once there is an order on paternity, at that point Vital Records can be contacted regarding updating their records. Additionally, any actions for support or custody of the child can proceed.

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Paternity by Estoppel

A presumption of paternity arises where a child is born into an intact marriage. In that circumstance, absent clear and convincing evidence to the contrary, the husband will be deemed to be the father. However, even in the absence of a biological connection, paternity may be established. Paternity by estoppel acts to impose an obligation on the party who holds themselves out as a father to the child and supports the child to continue to support the child. The Pennsylvania Supreme Court has held that the purpose of paternity by estoppel is to keep families intact and protect the best interest of the child by shielding them from claims of illegitimacy and, potentially, a broken family.

In the case of K.E.M. v. P.C.S., 38 A.3d 798 (Pa 2012), Appellant, mother of G.L.M., brought an action for support against Appellee, the alleged father of G.L.M. Appellant was married to H.M.M. at the time G.L.M. was born. Further, H.M.M. had supported the child and acted as a father figure to G.L.M. for most of the child’s life. Appellee filed a motion to dismiss the support action on the basis of a presumption of paternity on the part of H.M.M. and paternity by estoppel. Appellee’s argument that H.M.M. had acted as G.L.M.’s father prompted the lower court and Superior Court to grant his motion to dismiss the support action against him and continue to hold H.M.M. responsible for G.L.M.’s support. In this case, H.M.M. submitted to a paternity test which ruled him out as the father, however, on appeal the court found it was in the child’s best interests to still recognize Apellant’s husband, H.M.M., as the father.

Click here to read more about child support.

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Disestablishing Paternity

It is difficult to avoid the obligations that come with parenting a child. Paternity can be established in a number of ways including by acknowledgment, by genetic testing, or by estoppel. Once an acknowledgment of paternity is signed, it is very difficult for a father to then try to allege the child is not his. An acknowledgment acts as conclusive evidence that the person who signed the acknowledgment is in fact the father of any subject child(ren). A court order on paternity will follow if the genetic test results indicate 99% probability of paternity. Paternity by estoppel recognizes a man as the father based on his role in the child’s life rather than the biological connection.

A presumption of paternity arises where a child is born into an intact marriage. In that circumstance, absent clear and convincing evidence to the contrary, the husband will be deemed to be the father. However, in K.E.M. v. P.C.S., 38 A.3d 798 (Pa. 2012), Husband, though he had supported the child, acted as a father figure and was married to Wife at the time of birth, submitted to a paternity test which ruled him out as the father. Accordingly, the presumption of paternity was defeated. The establishment of paternity imposes the policies of the Uniform Parentage Act including strict liability for child support. In Wallis v. Smith, 22 P.3d 682 (2001), Father tried to avoid his support obligation on the basis that Mother had committed contraceptive fraud. In other words, the parties had an agreement that Mother would be responsible for birth control and subsequently stopped taking the birth control without alerting Father. The courts refused to relieve Father of his support obligation despite the parties’ alleged agreement. No state recognizes contraceptive fraud or failure to accurately practice birth control as a defense to child support.

Click here to read more on child support.

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Contested Paternity Case

The current statute relating to paternity is 23 Pa.C.S. §4343. As it relates to testing to determine paternity, the statute provides: (c) Genetic Tests. (1) Upon the request of any party to an action to establish paternity, supported by a sworn statement from the party, the court or domestic relations section shall require the child and the parties to submit to genetic tests. The domestic relations section shall obtain an additional genetic test upon the request and advance payment by any party who contests the initial test. Tests results alone are not sufficient to establish paternity. Instead, the parties must stipulate in writing that the test results prove paternity or the court must make an order on paternity after reviewing the test results.

As a matter of science, it is not necessary to have both parents of the child tested. Either parent can be simply tested against the child at issue to establish clear results as to whether they are a biological parent. However, the courts should make a practice of routinely testing both parents as indicated by the statute. In a recent paternity case, the Father filed a Complaint for Paternity after he separated from his girlfriend who had become pregnant. He never had an opportunity to see the child after birth. Following a hearing, genetic testing was ordered. Father and child were tested but Mother refused to be tested. The results excluded Father as a biological parent. Father, believing there may have been foul play, insisted on Mother being tested. Following a second hearing, Mother was ordered to be tested as well to prove she was in fact the biological parent of the child she brought in for testing. The results from her test excluded her as a biological parent as well. This means Mother brought a child in for testing that she knew was not her child, likely in an attempt to thwart Father’s claim of paternity. Currently, a third hearing is being requested to ensure the correct child is presented for testing. This case should be a lesson to the court to enforce the provision of the statute requiring both parties submit to genetic tests in any action for paternity.

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Evolving Issues in Family Law

Below are summaries of some of the most recent decisions on various family law topics.

Paternity by Estoppel – K.E.M. v. P.C.S.

In this case, Appellant, mother of G.L.M., brought an action for support against Appelle, the alleged father of G.L.M. Appellant was married to H.M.M. at the time G.L.M. was born. Further, H.M.M. had supported the child and acted as a father figure to G.L.M. for most of the child’s life. Appellee filed a motion to dismiss the support action on the basis of a presumption of paternity and paternity by estoppel.

A presumption of paternity arises where a child is born into an intact marriage. In that circumstance, absent clear and convincing evidence to the contrary, the husband will be deemed to be the father. In this case, H.M.M. submitted to a paternity test which ruled him out as the father. Accordingly, the presumption of paternity was defeated.

Paternity by estoppel acts to impose an obligation on the party who holds themselves out as a father to the child and supports the child to continue to support the child. Appellee’s argument that H.M.M. had acted as G.L.M.’s father prompted the lower court and Superior Court to grant his motion to dismiss the support action against him and continue to hold H.M.M. responsible for G.L.M.’s support.

The Supreme Court of Pennsylvania ultimately reversed the decision and remanded back to the lower court for further proceedings. Specifically, the Supreme Court held that the purpose of paternity by estoppel is to keep families intact and protect the best interest of the child by shielding them from claims of illegitimacy and, potentially, a broken family. Accordingly, the court would need to be convinced that it was in the best interests of G.L.M. to continue to recognize Appellant’s husband, H.M.M., as the father. No such evidence was presented at the hearing. In summary, paternity by estoppel is still a viable principle in Pennsylvania, however, it must be supported by an analysis of what’s in the child’s best interests to succeed.

Custody Relocation – L.A.M. v. C.R.

In this case, the appeal challenged the lower court’s decision to grant mother’s petition to relocate to Boston with the children on the basis that the provisions of the new custody law were not applied. The Superior Court upheld the lower court’s decision finding that the provisions of the new custody law did not have to be complied with since mother’s petition to relocate was filed before the new laws came into effect. The Appellant argues, however, that the hearing took place after the new laws came into effect.

The crux of the issue is how to interpret the what constitutes a proceeding under the new law. Any proceeding commenced after the effective date of the law is to be governed by the new law while any proceeding commenced before the effective date of the law is to be governed by the law in effect at the time the proceeding was initiated. The lower court found, and Superior Court affirmed, that mother’s petition was the determinative proceeding and since it was filed before the effective date of the new law, the old law should govern at the hearing.

Judge Donohue disagrees with the majority and posits that the provisions of the new custody laws should have governed over the hearing. Judge Donohue’s interpretation categorizes the hearing as a separate proceeding from the petition. Accordingly, since the hearing occurred after the effective date of the new law, it should be governed by the new law. Judge Donohue argues that this interpretation of the term proceeding allows for the “broadest possible application of the procedures and legal standards in the new Act.”

Second, Judge Donohue believes the trial court erred in allowing the mother to relocate. Under the framework of the new law which arguably should have applied, there were ten factors the trial court should have considered before ruling on the relocation pursuant to 23 Pa C.S. § 5337(h). The trial court failed to consider all the factors under the statute and for that Judge Donohue argues it erred as a matter of law in reaching its decision.

Furthermore, Judge Donohue argues the trial court did not even consider the necessary factors under the old law as outlined in Gruber. Specifically, the trial court concluded the relocation would be in the best interests of the children and substantially improve the quality of life for mother and children without evidence supporting the same. Specifically, mother did not have a job or a place to live lined up in Boston. Further, mother argued the move would also allow her to continue her education but she had not been accepted into any graduate programs in Boston. Finally, Judge Donohue was not convinced that an adequate alternative custody order could be established based on the heavy involvement of father in the children’s lives and mother’s lack of income or other resources to share transportation in the event of a move.

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