D.M. v. V.B., PICS Case No. 14-0359 (Pa. Super. March 3, 2014) Strassburger, J. (12 pages).

SUPERIOR COURT

The Legal Intelligencer

FAMILY LAW

Custody and Child Support • Paternity Testing • Collateral Estoppel • Paternity by Estoppel

D.M. v. V.B., PICS Case No. 14-0359 (Pa. Super. March 3, 2014) Strassburger, J. (12 pages).

Where a party assented to an order establishing his paternity and did not appeal from or otherwise contest said order, he was estopped from requesting a blood test to establish paternity; and where the party never held himself out as the father of a child and all involved acknowledged the non-paternity of the party, paternity by estoppel is inapplicable, but a blood test to establish paternity was not proper as it was unnecessary. Affirmed.

Appellant D.M. appealed from an order denying his petition to determine paternity of three children, with whom he had custody and care with appellee, V.B. Appellant obtained custody of the first child, A.M., who was apparently appellant's grandniece by way of appellant's nephew, by holding himself out as A.M.'s father in order to avoid a costly adoption proceeding. Appellant's nephew was incarcerated, and A.M.'s mother was physically and mentally incapable of raising A.M., so she consented to relinquish custody to appellant. Appellant obtained custody of the second child, G.W., appellant's granddaughter, after her mother relinquished custody to appellant. Both appellant and appellee had been involved in raising both children since infancy.

During the live-in relationship of appellant and appellee, they bore the third child involved in the instant case, D.R.M., whom appellant believed was his child and held out as his own. After D.R.M.'s birth, the parties married and raised all three children, A.M., G.W., and D.R.M. The parties ultimately separated pursuant to a protection from abuse order obtained by appellee, who later filed a complaint for support for all three children. Appellant ultimately agreed to a modified order supporting all three children, and later agreed to joint legal and physical custody. After filing a second PFA order, appellee obtained sole legal and physical custody.

Appellant filed this petition seeking a paternity test for all three children. Appellant alleged that appellee fraudulently deceived him into believing D.R.M. was his biological child, and therefore argued that he had no duty to support children that were not his biological issue and whom he did not have custody. Appellee contended that appellant was estopped from denying paternity. A trial court denied appellant's petition, finding that appellant's assent to the support order precluded him from relitigating the issue of paternity.

The court found that appellant was estopped from denying the paternity of A.M. and D.R.M. The court noted that the support order agreed to by appellant identified appellant as the biological father of A.M. and D.R.M.; appellant also signed an acknowledgement of paternity, in which he waived his right to genetic tests or a trial on the issue of paternity. Appellant never appealed from or contested the acknowledgment of paternity or support order. Appellant also failed to allege by clear and convincing evidence in the instant matter that his consent to both was obtained fraudulently or by mutual mistake, which would except him from the estoppel rule.

The court rejected the paternity-by-estoppel argument as to G.W. The court noted that paternity-by-estoppel occurs when a party holds out or treats a child as his own, said party will not be permitted to deny parentage despite biological status;, in the instant case, all relevant parties, including the child G.W., knew and acknowledged that appellant was G.W.'s grandfather, and that at no time did appellant hold how G.W. as his child. However, because appellant's relationship to G.W. was uncontested by any parties, the court ruled that a paternity test would be unnecessary.

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