J-S87027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.E.M.                                               IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

A.C.M.

                            Appellant                    No. 1118 MDA 2016


                   Appeal from the Order Entered June 1, 2016
                  In the Court of Common Pleas of Perry County
                      Domestic Relations at No(s): 11-00132
                                                   PACSES #831112601

BEFORE:       LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                             FILED JANUARY 31, 2017

        Appellant, A.C.M. (Father), appeals from the order denying his petition

for disestablishment of paternity or for a genetics test of the parties’ child,

who was born in May of 2011. Father contends the trial court erred by not

properly considering the best interests of the child and whether the child

would suffer harm if genetic testing established he was not the father. We

affirm.

        Father and Appellee, S.E.M. (Mother), were married in 2009 and

separated in January of 2011.           He alleges that Mother concealed that she

stopped taking birth control and that she was pregnant.          Father claims he


____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
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learned Mother was pregnant in February of 2011, three months before the

child was born in May of 2011.                 Mother testified that Father was the

biological father of their child and that she did not have any extramarital

affairs. N.T. Hr’g, 6/1/16, at 12. Father’s name is listed as the child’s father

on the child’s birth certificate. Id. at 8. The parties divorced in October of

2012. Id. at 5-6.

       Father has seen the child only twice.           He testified that every other

time he attempted to visit, “something would come up either on my end or

[Mother’s] end.” N.T. at 6. Mother testified that the child has seen pictures

of Father but does not know his name. Id. at 13.

       Father has paid court-ordered child support since 2012.            N.T. at 8.

Until he filed the underlying motion in 2016, Father did not challenge his

obligation to pay child support.               He now concedes that he seeks to

disestablish paternity so that he can avoid further child support obligations.

Id. at 10.

       On March 10, 2016, Father filed the instant petition to establish

paternity or for genetic testing, or both.1          Father testified that he wanted



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1
  That day, Father also filed a petition for modification of a prior child
support order, claiming that because he was unemployed, he could not pay
the court-ordered amount. Subsequently, Father found a new job. The
court resolved the petition on July 28, 2016, by increasing Father’s child-
support payment.




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genetic testing to confirm the child is his.       N.T. at 8.   If the child is his,

Father wants the child to know Father’s current wife and son. Id. at 7.

      After appointing a guardian ad litem for the child, the court held a

hearing on June 1, 2016.        On June 3, 2016, the court docketed an order

denying the petition. The court held that, having accepted the child and

treated the child as his own, Father was estopped from contesting paternity.

Trial Ct. Op., 8/22/16, at 1-2 (unpaginated). With respect to the child’s best

interest, the court stated:

            [I]t would not be in the child’s best interest if [Father] is
            permitted to renounce his previously assumed parental
            duties and obligations. The child was conceived during the
            marriage and, although born after the parties had
            separated, [Father’s] name is on the child’s birth
            certificate. [Father] has been paying child support since
            2012, and has had ample time to raise the issue of
            paternity but failed to do so. Since 2012, [Mother] and the
            child have relied on the child support provided by Appellant
            which is needed for continuity and financial support.
            Although [Father] only had contact with the child twice
            when he was first born, [Father’s] lack of relationship with
            the child is due to [Father’s] lack of initiative. [Mother] has
            been attempting to foster a relationship by showing the
            child pictures of [Father]. This [c]ourt finds that [Father’s]
            primary reason for filing the petition to disestablish
            paternity is his primary concern of whether the child
            support he is providing is going to the child. For the above
            aforementioned reasons, this [c]ourt determined that a
            blood test would be detrimental to the child.

Id. at 3.

      On July 1, 2016, Appellant filed a timely notice of appeal and a

Pa.R.A.P. 1925(a)(2)(i) statement. Father raises the following issue:




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         Did the trial court commit an error of law when [it]
         dismissed [Father’s] Petition for Disestablishment of
         Paternity and/or Genetic Tests, where there was no
         competent evidence of record regarding the best interest
         of the child and the harm that would befall the child if
         paternity was disestablished?

Father’s Brief at 3.

      We evaluate the trial court’s order for an abuse of discretion. Vargo

v. Schwartz, 940 A.2d 459, 462 (Pa. Super. 2007). The legal analysis has

two stages:

         First, one considers whether the presumption of paternity
         applies to the particular case.     If it does, one then
         considers whether the presumption has been rebutted.
         Second, if the presumption has been rebutted or is
         inapplicable, one then questions whether estoppel applies.

Id. (citation and brackets omitted).

      “[T]he presumption of paternity applies only where the underlying

policy to preserve marriages would be advanced by application of the

presumption.    When there is no longer an intact family or a marriage to

preserve, then the presumption of paternity is not applicable.” Vargo, 940

A.2d at 463 (citations omitted). Instantly, Mother and Father are divorced;

thus, there is no intact family unit or marriage to preserve. See id.

      The trial court held that there was paternity by estoppel. In Vargo,

this Court explained:

         Estoppel in paternity actions is a legal determination based
         on the conduct of the mother and/or the putative father
         with regard to the child, e.g., holding out the child to the
         community as a product of their marriage and/or
         supporting the child. If the evidence is sufficient, estoppel

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          may bar either a putative father from denying paternity or
          a mother from succeeding in a claim of paternity against a
          third party. Estoppel rests on the principle that a person
          may not challenge his role as a parent once he has
          accepted it, even with contrary DNA and blood tests.

Id. at 464 (citations and quotation marks omitted).2      Thus, “[w]here the

husband has accepted his wife’s child and held it out as his own over a

period of time, he is estopped from denying paternity.” Commonwealth ex

rel. Hall v. Hall, 257 A.2d 269, 271 (Pa. Super. 1969) (citation omitted).

       In Hall, the parents separated two years after their child was born.

The father never challenged the child’s paternity for those two years. Hall,

257 A.2d at 271.          After the parties separated, the father executed a

separation agreement acknowledging the child was his, paid child support,

“and made extensive arrangements for visitation rights.” Id. Accordingly,

this Court held that the father was not entitled to a blood test to establish

the child’s paternity. Id.




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2
  “The presumption of paternity and the doctrine of estoppel, therefore,
embody the two great fictions of the law of paternity: the 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.” Brinkley v.
King, 701 A.2d 176, 180 (Pa. 1997) (plurality). The concepts are “fictions”
in that they may contradict biological parentage, but they nevertheless
determine the fact of legal parentage.




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      In K.E.M. v. P.C.S., 38 A.3d 798 (Pa. 2012), our Supreme Court

explained the interplay between paternal estoppel and the best interests of

the child at issue:

         [S]ubject to modest qualification, we join the sentiment
         expressed in an opinion authored by the late, Honorable
         William F. Cercone, as follows:

            Absent any overriding equities in favor of the
            putative father, such as fraud, the law cannot permit
            a party to renounce even an assumed duty of
            parentage when by doing so, the innocent child
            would be victimized. Relying upon the representation
            of the parental relationship, a child naturally and
            normally extends his love and affection to the
            putative parent. The representation of parentage
            inevitably obscures the identity and whereabouts of
            the natural father, so that the child will be denied the
            love, affection and support of the natural father. As
            time wears on, the fiction of parentage reduces the
            likelihood that the child will ever have the
            opportunity of knowing or receiving the love of his
            natural father. While the law cannot prohibit the
            putative father from informing the child of their true
            relationship, it can prohibit him from employing the
            sanctions of the law to avoid the obligations which
            their assumed relationship would otherwise impose.

         Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.
         Super. 307, 312, 369 A.2d 416, 419 (1976). The operative
         language of this passage centers on the best interests of
         the child, and we are of the firm belief—in terms of
         common law decision making—that this remains the
         proper, overarching litmus, at least in the wider range of
         cases.

K.E.M., 38 A.3d at 807-08 (footnote omitted).

      In this case, for the five years between the child’s birth and the filing

of Father’s petition, Father did not challenge his designation as “father” on


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the child’s birth certificate.   Similar to the father in Hall, Father has paid

child support since 2012. Cf. Hall, 257 A.2d at 271. For the child’s entire

five-year lifetime, Father made no challenge to his paternity at all.      We

therefore conclude that the trial court did not err in holding that Father is

estopped from denying parentage.         To paraphrase the Court in K.E.M.,

Father has not established any overriding equities that would permit him to

now renounce his long-assumed duty of parentage and avoid paying child

support. See K.E.M., 38 A.3d at 807-08. In this connection, the trial court

did not err in holding that the child’s best interest did not favor

disestablishment of paternity.      Father’s argument to the contrary is little

more than an insistence that he has not formed a bonded relationship with

the child that calls for preservation.    See Appellant’s Brief at 7-10.   The

policy of the law that is reflected in K.E.M., however, is that a child’s best

interests call for protection of a child from disestablishment of his father’s

paternity. No additional proof of the child’s best interest is needed.

      Accordingly, we discern no abuse of discretion by the trial court when

it denied Father’s petition for disestablishment of paternity or for genetic

testing.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/2017




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