Law News

Presumption of Paternity Prevails

Justices 'take a step back' from previous ruling

by Danielle Rodier
Pennsylvania Law Weekly
April 12, 1999

What some call an "ancient concept," the presumption of paternity, apparently will live on in Pennsylvania through the new millennium.

A majority of the state Supreme Court has decided to uphold the presumption in any case where a marriage is intact, even when blood tests prove a man other than the husband is the father.

The decision takes a turn away from the last case in which the justices spoke out on the presumption, Brinkley v. King, PICS Case No. 97-1991, Flaherty, J.; Nigro, J., concurring and dissenting; Newman & Castille, J.J., concurring and dissenting; Zappala, J., concurring (37 pages).

Chief Justice John Flaherty in Brinkley called the presumption of paternity -- which holds that a child born into a marriage is a child of that marriage -- "one of the great fictions" of the law of paternity.

But in the latest paternity case, Strauser v. Stahr, PICS Case No. 99-0618 Saylor, J.; Newman & Castille, J.J., dissenting; Nigro, J., dissenting (16 pages), the majority -- including Flaherty -- said the presumption was "irrebutable" if the case involves an intact marriage.

Michael Sholley, the attorney representing the alleged biological father in Strauser, said the majority was "taking a step back" from Brinkley.

"Before the presumption was rebuttable. Now you don't even get into the courthouse if the marriage is intact," Sholley said.

But the presumptive father's attorney said he did not think the decision was as "boxed in" as the dissenting justices suggested.

"There's enough of a loophole to allow some interpretation," said Orris Knepp, adding that because Brinkley was a plurality decision, it was not a very clear opinion anyway.

The case involved Timothy Strauser, who claimed he was the father of April Stahr's youngest child, Amanda. Amanda was born while April was married to Steven Stahr.

Strauser filed a custody complaint against April, in which he claimed she knew he was Amanda's father and let him visit with the child frequently. April allegedly promoted a relationship between Strauser and April and held him out as the child's father.

Most importantly, Strauser, April and Amanda submitted to blood tests which showed with a 99.99% probability that he was Amanda's father.

April and Steven fought Strauser's claim with the presumption. The trial court found that the presumption had been overcome with the results of the blood tests and that April was estopped from denying Strauser's paternity because she held him out as Amanda's father and agreed to genetic testing.

The Superior Court reversed, saying that because the Stahr family was intact and Steven had assumed parental responsibility of Amanda, the blood test results should not have been admitted.

In his appeal to the Supreme Court, Strauser said the presumption was inapplicable under Brinkley.

He claimed it would be in Amanda's best interests for him to be named her father because of his relationship with her and the fact that April and Steven did not have a "traditional" family unit.

But Justice Thomas Saylor, writing for the majority, said Brinkley did not abolish the presumption's application to a case involving an intact marriage.

Saylor cited the portion of Brinkley that said the presumption applies "in any case where the policies which underlie the presumption [namely, the preservation of marriages] would be advanced by its application, and in other cases, it does not apply."

Three justices spoke out in favor of allowing blood testing for both alleged and presumed fathers in Brinkley: Russell Nigro, Sandra Schultz Newman and Ronald Castille.

But the opinions those justices expressed in Brinkley were irrelevant to Strauser's case, Saylor said.

Saylor and the rest of the majority said only one thing mattered in Strauser -- that April and Steven were still married.

"Although several opinions in Brinkley reflect the criticism that has been directed toward the presumption of paternity in recent years, appellant's reliance on that decision is unavailing," Saylor wrote.

"Indeed, despite the marital difficulties that they have encountered, mother and husband have never separated. Instead, they have chosen to preserve their marriage and to raise as a family the three children born to them, including Amanda."

Strauser used evidence of the Stahrs' "marital difficulties" in his argument, saying that theirs was a marriage in name only.

But instead of bolstering Strauser's side, Saylor said those facts supported the importance of upholding the presumption.

"It is in precisely this situation ... that the presumption of paternity serves its purpose by allowing husband and wife, despite past mistakes, to strengthen and protect their family," Saylor said.

Newman said in her dissenting opinion, joined by Castille, that although the presumption applied in Strauser, blood tests should be allowed to rebut it.

She attacked Saylor's position that public policy warrants the presumption to be irrebuttable if there is an intact marriage.

There is no such clear public policy, Newman said.

"Here, the majority's conclusion that 'public policy' requires an irrebutable presumption in favor of Mr. Stahr is erroneous because it is in direct conflict with the plain language of the Uniform Act on Blood Tests to Determine Paternity," she said.

The act expressly allows courts to compel individuals involved in paternity cases to submit to blood tests. It even addresses the effect of that provision on the presumption.

"The presumption of legitimacy of a child born during wedlock is overcome if the court finds that the conclusions of all the experts as disclosed by the evidence based upon the tests show that the husband is not the father of the child," the act says.

Saylor answered Newman's concerns in a footnote to the majority opinion. He said her position on the act "has never commanded a majority of this court."

Nigro's dissent mirrored Newman's opinion and his concurring and dissenting opinion in Brinkley, in which he called blood testing "the single most valuable technique available to a court in determining parentage."

Paternity should be decided on a case-by-case basis, Nigro said, taking into account not only blood tests but the best interests of the child.

"The benefits of this approach are exemplified by the circumstances of the instant case. Here, voluntary test results representing virtually conclusive evidence of [Strauser's] paternity are available and undeniably probative of the question of who Amanda's biological father is," Nigro wrote.

"It is simply unreasonable, in my view, to preclude the trial court from considering the interests of those involved and the evidence of the blood tests solely on the basis of a presumption that is no longer reflective of today's society."

When the justices decided another paternity case late last year, Miscovich v. Miscovich, the result was an even split.

Castille, Nigro and Newman voted to allow evidence of genetic tests into Gerald Miscovich's argument that he was not the father of his wife's son.

Flaherty, Cappy and Zappala voted to affirm the Superior Court's decision that the presumption prohibited Miscovich from presenting the scientific evidence.

Saylor's absence from Miscovicha -- he recused himself because he heard it when he was on the Superior Court -- put the focus on him as the deciding vote in Strauser

The attorneys involved in the case were not surprised with the position he took.

"I was not really surprised," Sholley said. "He participated in Miscovich at the Superior Court level. We weren't sure whether in that case he was just following the law of the land or ruling on what his belief was. Now we know."

Knepp agreed Saylor's position was not surprising after looking at the paternity decisions he made on the lower court.

Donald Zagurski, who represented April, said he agrees with Saylor that the presumption is still relevant, although it sometimes presents a dilemma.

"When you first hear about the rule, you think it's archaic. But once you're in practice for years you see the utility of it and that it still has its place," he said. "But sometimes it confuses things, like in Brinkley, where it used to create a fraud in the court and someone without a biological relationship is forced to pay support."

Shallow said an opportunity for the law to change probably won't appear until there is a shift in the high court.

"Now we just have to wait for the chief justice to retire and try again," Sholley said.

But there is one thing on the horizon that could alter the effect of Strauser, and essentially eviscerate the presumption.

A bill was recently proposed by the state House of Representatives that would add two criteria that could rebut the presumption: if the wife had an extra-marital affair or if blood tests prove the husband is not the father.

Currently, the presumption can only be rebutted with proof that the husband was impotent or did not have access to his wife at the time of conception.

The bill was proposed by Representative Rod Wilt (R-Mercer, Crawford), who said the probability of it getting passed was "very high."

Wilt said adding the provisions would help conform the presumption to modern day realities.

According to the facts in Brinkley, Lisa Brinkley sued Richard King for child support, arguing he was the biological father of her daughter Audrianna, even though Lisa was married to George Brinkley when the child was conceived.

George moved out before the girl was born. Lisa claimed King paid her a monthly stipend to support Audrianna, but that it wasn't enough. King denied paternity but refused blood testing.

The justices remanded the case for a decision on whether estoppel applied.

In the opinion announcing the court's judgment, Flaherty said one of the strongest presumptions in the state is the presumption that a child conceived or born within a marriage is a child of that marriage.

But Flaherty said that presumption is out-dated for the changing face of a family in today's society.

Flaherty noted that in the past, divorce was not as common and the policy behind the presumption of paternity, to keep marriages intact, served the ideology of the times.

Things are different today and the law has not kept up, he said.

"Today, however, separation, divorce, and children born during marriage to third party fathers is relatively common, and it is considerably less apparent that application of the presumption to all cases in which the child was conceived or born during the marriage is fair," Flaherty said in an opinion joined by Justice Ralph Cappy.

The law was made in order to hold families together but the presumption is unfair in a case like Brinkley where no family exists, Flaherty said.

Flaherty said the presumption of paternity and the doctrine of estoppel signify the "two great fictions" of the law of paternity.

"[T]he presumption of paternity embodies the fiction that regardless of biology, the married people to whom the child was born are the parents; and the doctrine of estoppel embodies the fiction that, regardless of biology, in the absence of a marriage, the person who has cared for the child is the parent," Flaherty said.

The appropriateness of applying the presumption of paternity should be decided on a case-by-case basis, Flaherty said.

The high court will decide one more paternity case, Fish v. Behars, PICS Case No. 97-0331 Tamilia, J.; Cirillo, J., concurring; Eakin, J., concurring in result; Johnson, dissenting; Schiller & Kelley, J.J., dissenting; Ford Elliot, J., dissenting (61 pages), but it is likely to end up in a tie, just like Miscovich, because Saylor also decided that case at the Superior Court level.

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