Brinkley v. King

in the personality split course sexual assault that caused her out mentally upon Relying block the acts committed her. Seto, in Pearce grant preliminary on the court affirmed the objections against plaintiff alleged repressed who she her recollection of traumatic assaults inflicted her a child. upon Nonetheless, the court stated: arises, however,

A question as to whether it is appropriate to utilize this standard when a incapacity mental is averred delayed discovery injury. as the reason for of an It is not plaintiff alleges this court to decide whether a who repression disability or other mental had the to know ability stated, injury and its cause. As the Seto court “if there is to be any departure the clear and certain statute, pronouncement prior case law and it must be legislature Supreme taken our Court.” Pearce, Here, Pa.Super. 674 A.2d at 1125. we should opportunity take the plaintiff announce that where a alleges a contemporaneous repression dissociation and of all memory abuse, of childhood sexual it is for the jury decide whether to apply discovery rule to toll the statute of limitations.

701A.2d176 BRINKLEY, Appellant, A. Lisa

v. KING, Appellee.

Richard E. Supreme Pennsylvania. Court of

Argued Sept. 1996. Sept.

Decided Clark, Robert D. A. Wilmington, Brinkley. for Lisa Clark, Jr., L. Phillip City, King. Ellwood for Richard E. FLAHERTY, C.J., ZAPPALA, CAPPY, Before CASTILLE, NEWMAN, NIGRO and JJ. THE ANNOUNCING JUDGMENT

OPINION THE OF COURT FLAHERTY, Chief Justice. Pennsylvania in law is strongest presumptions

One marriage in a is a child of the that a child conceived or born to rebut it must be marriage. présumption In order that at the time of convincing evidence proved by clear physically capable husband either was not conception, the no access to the wife. The issue procreation or had to the facts of this presumption applies is whether the case case. living George to and was with Brinkley

Lisa was married Audrianna, February daughter, when Lisa’s Brinkley months George July, moved out four was conceived. at the time the child was born. Lisa stated that before on slept conceived the former husband Audrianna was Further, although in a her slept couch and she bedroom. incapable procreation was not physically former husband he free to although time Audrianna was conceived and bedroom, she and her husband did not have sexual enter her having that she was sexual relations. Lisa also testified when Audrian- King during period relations with Richard for na was conceived1 and that her husband filed divorce by King. that she was pregnant because he learned King hospital Lisa testified that came to the when Audrian- a weekly na and he visited the child on basis was born until Lisa filed a approximately years thereafter for two Although King paid and his wife also complaint support. support, for Audrianna’s Lisa filed a monthly stipend Lisa Although "Conspicuous its absence from the 1. the trial court stated: testimony any Brinkley stopped indication that Mr. and Mrs. had having at or about the time that Audrianna was sexual relations conceived,” the trial court was mistaken: February, January, February you Q. In and March of 1991 were your George Brinkley? having with husband sexual relations No, A. I was not. relationship anyone Q. you having a with at that time? Were sexual King. A. Richard N.T. at 15. the amount was insufficient. support for because complaint on his King placed Lisa testified that Audrianna Finally, medical insurance. husband, Lisa testified that after

Concerning her former the former husband came visit her they separated, were child, acknowledged whom the former as his other husband own, but he did not visit Audrianna.2 complaint support

On October Lisa filed 29, 1993, King, alleging Richard that Audrianna was the child of against King. King testing. denied and refused blood Lisa adjudication King a motion for then filed precluded claiming answered that Lisa was that he was the father of Audrianna because she had failed to rebut her former husband was the father. The adjudication trial court treated the motion for aas motion for blood tests and parties directed submit positions. memoranda of law on their The court thereafter Lisa had concluded that failed to rebut the her former husband was Audrianna’s for she was unable to establish that former had no husband access during period conception, and denied the motion for blood tests. Lisa then appealed Superior Court. affirmed,

Superior Court that Lisa had not holding present- convincing ed clear and evidence that her former husband had no access to her period conception. Nonethe- less, judges Superior panel, two of three on the Court in a opinion, expressed memorandum reservations that consider- impotence ations of or lack of access should be the exclusive considerations sufficient to rebut the They suggested that this court consider whether additional factors, identity such as the of the father named on the child’s certificate, birth whether the father has established a visits, describing In her former husband’s Lisa stated: Q. children, spends When he comes to see the he time with both of them, correct? years, spend any A. The first two he did not time with her whatsoev- just sympathy against—he just every er. It is takes her now and then him, go because she wants to with but she knows who her dad is. N.T. at 26. 246 child, father putative provid- with the whether the

relationship child, putative for the and whether father support ed for the child should be also consid- provided medical insurance presumption. ered rebuttal inway allocatur in order to review the granted We Pennsylvania functions in law.3 T., (1990), Pa. 571 A.2d 1380 In John M. v. Paula 524 against to his own party third sued establish The child was conceived presumptive of the father. before married, while the mother was married mother but was born and wife cared for living to and with her husband. Husband at the time the lawsuit was together the child and remained third party sought compel presumptive filed. The Nix, father to submit to blood tests. Former Chief Justice M., concurring in John wrote: should remain clear that a child born to a married

[I]t will to be the issue of the husband. couple presumed be only by That can be overcome of facts proof non-access or v. American establishing impotency. Cairgle Sanitary 366 Pa. 77 Corp., Radiator Standard strongest A.2d It continues to one of the within our law. Commonwealth ex rel. Leider presumptions Leider, (1969); v. Pa. 254 A.2d 306 Cairgle, supra; O’Brien, Commonwealth, rel. v. ex O’Brien (1958 [1957]). A.2d 451 Paternity] Act on Blood Tests to

[The Uniform Determine cannot a third party, seeking be used rebut presumed father to submit to a presumption, compel blood test. interests the father Whatever claim, they comparison overriding to the interests of pale father, the marital institution and the inter- presumed family ests of this Commonwealth unit. These inter- case, disposition of the we do not address Lisa's Because our the trial additional claim that it was error for court to fail to consider separate proceeding an order entered in a which excluded Lisa’s former husband as the father of Audrianna. age-old presumption the cornerstone ests are today. by the Commonwealth protected remain rela- the marital third who stands outside party Thus a allowed, to chal- any purpose, should not be tionship I believe the parentage. claim of lenge the husband’s irrebuttable.... in this situation is presumption (concurring 322-23, opinion at 1388-89 at 571 A.2d 524 Pa. court). members of the joined by four other defeat the attempting to party In a third was John M. later, years three the but paternity presumed (1993), 95, 201 we addressed Pa. 634 A.2d Trojak, v. 535 Jones mother sued the third Trojak In the fact situation. a different he, than her claiming that rather for child party support, husband, child was born while she was the father. The Trojak pater- denied living with her husband. married to and for blood tests on the trial court’s order nity objected the presump- mother had not rebutted grounds that the stated: marriage. the child of the We tion that the child was only A tests to determine court order blood has been overcome. presumption when the 1380, T., 306, cert. 524 Pa. 571 A.2d M. v. Paula John 140, denied, 111 112 L.Ed.2d 107 498 S.Ct. U.S. can be overcome presumption has held that the This Court impotency. or establishing of facts non-access by proof Sanitary American Radiator and Standard Cairgle v. (1951). However, A.2d 439 under Corp., circumstances, might estopped be person certain by his or her person where that has challenging paternity the father of the child. given person as accepted conduct In Trojak A.2d at 206. the mother 535 Pa. at together did not live as established that she and her husband child; accepted her husband had not family; an intact marriage long their vows repudiated husband and wife had child; and when the supported the husband never ago; conceived, physically incapable the husband was child was procreation.

These cases set forth the fundamentals of the law of presumptive a child paternity: generally, conceived or born marriage presumed to be the child of the marriage; is one of the strongest presump Pennsylvania; tions of the law of and the presumption may be convincing overcome clear and evidence either that presumptive father had no access4 to the mother presumptive physically father was at incapable procreation However, the time of conception. is irrebutt able when a third seeks to assert his party own M., John against the husband an intact marriage. Pa. 571 A.2d at 1388-89. father, however, The legal identification of a in a even case involving paternity, may also involve the question of One or estoppel. parties may both prevented making from a claim on biological paternity based they because have held themselves out or in acquiesced the out of a particular person as the father.5 In Trojak holding this court stated that: circumstances,

under certain a person might estopped be challenging paternity person where that has his or given her conduct a accepted person as the father of the simply physically impossible "No access” means that it was for the 4. presumptive father and the mother to have had sexual relations. For example, parties the lived in locations that are distant from each other course, physical possible people living and had no contact. Of it is that contact, in New York and Australia meet and have sexual and it is for the trial court to decide physically whether sexual contact was possible given in a case. estoppel In Freedman v. McCandless we defined as follows: 5. Estoppel paternity merely legal in actions is determination that own, person’s (e.g., holding because of a conduct out the child as his child) supporting person, regardless biological that of his true status, permitted deny parentage, will not be to nor will the child’s participated permitted mother who has in this conduct be to a sue party support, claiming third party that the third is the true observed, Superior estoppel father. As Court has the doctrine of in paternity "achieving actions is aimed at fairness as between the them, parents by holding prior both mother and to their regarding paternity conduct of the child.” 584, 591-92, (1995)(emphasis origi- A.2d 532-33 in nal). when estoppel apply of will not doctrine [T]he child.... child accept the father failed that evidence establishes the child---- supporting it out by holding as his own and/or apply does not will estoppel of the doctrine Only when claim paternity with a proceed permitted mother be test. the aid of a blood father with a against 105-06, at 206.6 634 A.2d Pa. at Trojak, 535 estoppel, doctrine of and the of The of paterni- fictions of the law therefore, great the two embody that the fiction embodies ty: child to whom the people the married biology, regardless of estoppel the doctrine parents; are the was born absence that, biology, regardless the fiction embodies cared for the child is who has marriage, person parent. support public policy

The which function as marriages concern that is the by disputes over the destroyed not be family units should marriage. conceived or born of children parentage integrity of a not allowed to attack the Third should parties unit, unit should not and members functioning marital is parents.7 Estoppel deny their identities be allowed children should be secure on the public policy based acted person If a certain has parents their are. knowing who child, not the child should and bonded with the parent as the Accord, John M. v. Paula T.: circumstances, that, might person recognized under certain [I]t challenging paternity person has his estopped where that be from person accepted given as father of the child.... or her conduct may estoppel] operative, tests well principle is [of [W]here irrelevant, permit person not in these situations for the law will be previously accepted. challenge status which he or she has McCandless, 1388, 318, cited in Freedman v. 571 A.2d at 524 Pa. at (1995). at 533 n. 5 Pa. at 591-92 n. 654 A.2d any society in in which the paternity "is essential 7. The O’Brien, 390 Pa. 555- O’Brien v. family is the fundamental unit.” 322-23, T., M. v. Paula 524 Pa. at In John 136 A.2d 451 presumed the "interests of the court stated that 571 A.2d at in this Commonwealth and the interests of the marital institution unit,” paramount. family are required be to suffer the potentially damaging trauma that being come from told that the father he has known all his life is not fact his father.

Thus, legal analysis the essential in these cases is first, twofold: one considers whether paternity applies does, to a If particular case. it one then considers whether the presumption has been rebutted. Sec ond, if the presumption has been inapplicable, rebutted is one then questions estoppel whether applies. Estoppel may bar either a plaintiff making from the claim or a defendant If denying paternity. the presumption has been rebut ted or does not if apply, and the facts of the case include evidence, estoppel such evidence must be considered. If the trier of fact finds that one or of the parties both are estopped, no blood tests will ordered.

It remains to consider how one knows whether the presumption applies any given case. Traditionally, question answer to this has been that the presumption applies if the child was conceived or during born the marriage. We question now the wisdom of application of the presump tion because the nature of male-female relationships appears changed dramatically have since the presumption was creat ed. There was a time when divorce relatively uncommon and marriages tended to remain intact. Applying the pre sumption whenever the child was conceived or born therefore, marriage, promote tended to the policy behind the presumption: preservation marriages. however, Today, divorce, separation, and children during marriage born party common, third fathers relatively is and it considerably less apparent application to all cases in which the child was conceived or born during marriage Accordingly, is fair. consistent with the ever-present guiding law, of our principle lex, cesscmte ratione legis ipsa cessat et we hold that the presumption applies any case policies where the which underlie the presumption, stated and other application, its above, advanced would be cases, apply.8 not it does complaint for bar, of the at at the time

In the case Brinkley George and marriage. no Lisa there was support, and were divorced of the child before the birth separated had of paternity, The complaint. at the time case, purpose for the therefore, to this application has no marriage, cannot the institution protect the presumption, therefore, consider the error, to fail to fulfilled. It was be evidence, presented for evidence estoppel estoppel not apply. does where and the case is Court is vacated Superior order of The on the issue of hearing trial court for a to the remanded policy upon only presumption applies where the holding that the In advanced, suggesting simplified would be we are which it is based Cairgle R. and S.S. In v. American way regarding cases. 249, (1951), example, the husband Corp., 77 A.2d 439 1932, divorced. The wife moved separated in but were never wife were lived with another in 1945 and the husband in with another man 1942, persons parties these lived with beginning in and both woman 1948, gave Cairgle The wife birth continuously when died. until children, in 1943. The one in 1942 and one one in three minor Owens; they with Owens and never given the name lived children were Owens, Cairgle, supported After the Cairgle; them. not with husband, sought to collect Cairgle, the wife died of silicosis Compensation for her children. In Act benefits under the Workmen's benefits, prove required to that her to these she was order to be entitled 254-55, 77 A.2d at 442. The "legitimate.'' 366 Pa. at children were paternity applied even to agreed presumption of Cairgle court that the these facts: testified, If, intercourse with her hus- she had sexual as claimant when she was pregnancy for her minor children band her man, adultery children would be consid- living in with another law, ered, presumption of of her husband and the the children legitimacy would be irrefutable. citing Page, 29 Pa. 420 Dennison v. Id. 77 A.2d at upheld because it did not believe the denial of benefits The court Cairgle intercourse with she continued to have sexual wife's claim that support payments. separated Cairgle In or that sent after she was words, credibility and her life with Owens the wife’s lack of other view, today, expressed would be that presumption. Our rebutted the inapplica- separated, presumption of was parties when the ble, Cairgle claiming estopped from the mother would be on her life with Owens. the children's father based estoppel.9

ZAPPALA, J., concurring files a opinion.

NIGRO, J., files a concurring dissenting and opinion. NEWMAN, J., files a concurring and in dissenting opinion CASTILLE, J., joins. which

ZAPPALA, Justice, concurring. T., John M. v. Paula

In (1990), 571 A.2d 1380 we held that a child born to married couple presumed will be to be the issue of the husband unless there is of facts proof establishing impotency. non-access or Non-access is defined by the in majority this case to mean “that it physically impossible for the presumptive father and mother to have had sexual relations.” I majority’s find the definition of non- access unnecessarily restrictive for the reasons articulated Madame Justice Newman footnote eight of her concurring and dissenting opinion. testimony The of Brinkley Lisa that she and her former husband did not have sexual relations during the period conception of was sufficient to establish non- access and to overcome the presumption. analysis As this is T., consistent in John M. v. Paula holding with our I do not believe it necessary is to policy re-examine the considerations that our underlie decision in that I case. would reverse the order of the Superior Court and remand the matter to the common pleas court for further proceedings.

NIGRO, Justice, and concurring dissenting.

I agree with Majority that this case should be remand- ed, but, for presented below, the reasons I am unable to join in completely Majority’s decision. accept Superior suggestion We decline to expand Court’s that we ways presumption in which one Superior can rebut the of proposed Court's additional factors to presumption, rebut such as child, whether relationship father established a with the context, appropriate are estoppel in an presumption but not ain of context. The continues to be rebut- ted, all, by if at biology: evidence related to there was no access or the presumptive incapable procreation. father was divorce, and chil- that Majority recognizes “separation,

The to fathers is marriage party [now] third during dren born common, considerably it less relatively apparent is all cases paternity] application [of marriage the child was conceived born I Op. agree at 181. with this assertion. fair.” However, Majority’s recognition disparity despite rule, they chosen reality legal have practical between fictions of the “two the law preserve great nonetheless paternity by paternity”—the hold that Op. presump- at 180. The Court does estoppel. policy no cases where the it embodies longer apply tion will but, today’s regard estoppel, not be with would forwarded with case law. represents prior no break decision I in this because join approach I am unable to believe by estoppel of and both they have in the longer strictly applied, no been should be fluid, nature of changed, increasingly In light of the past. separation, divorce family, and the increased rates of reality. legal have become less reflective social these fictions useful, likely and more are now than They problematic more Thus, Majority unfair I with agree to lead to results. cease, ceases, also the reason for a law the law should when because, today’s I do not in unlike join but decision I has come to take this Majority, believe that time in the law logical to its conclusion principle in cases is to I believe that the better course of action these case-by-case on a the trial to determine paternity allow court basis, obligatory application presump- unburdened an theory. or an doctrines have acted as estoppel tion These of the trial court order blood obstacle the discretion technique most valuable testing parties, single Abandoning to a in determining parentage. available court allow application would remove this obstacle and their strict alleged court father testing the trial to order blood both The of this is of presumed approach father. benefit considering court is not precluded course the trial essence, conclusive test results evidence representing, paternity,1 but is acknowledge evidence, free to along with such concerns as the unit, maintenance of an existing family if any, and promotion child, the interests of the in the of arriving course at an equitable result.

Moreover, I do not believe that abandoning the obligatory application of these two doctrines in judicious favor of the use of blood testing necessarily will result in any more strain on a marriage would, unit than for example, forcing a cuckolded husband, because of the presumption, to care for a child he knows is not his—a situation which would strain both the marriage and the husband’s relationship with the child. Blood testing would also work to eliminate situations where a man is deceived into believing he is the father and is then made to legal bear responsibility, by reason of estoppel, for a child that is not his. however,

It cannot ignored, that blood testing impacts on an right individual’s to privacy and therefore may not be compelled without a balancing of the privacy interests of the one whose blood sample sought as against the needs and interests of those seeking the T., test. See John M. v. Paula 306, 316-17, 524 Pa. 1380,1385, denied, 571 A.2d cert. 498 U.S. 140, 112 (1990); S. Ct. L.Ed.2d 107 see also Common Sell, wealth v. 470 A.2d 457 “good The cause” requirement 4010(a) found Pa. R.C.P. embodies this 4010(a) type of balancing.2 Rule states: When the mental or physical condition (including blood group) of a party, or of a person the custody or under the legal control of party, is in controversy, the court in which the action pending is may order the party to submit to a physical or mental by examination a physician or to produce 1. Blood tests have been held to be less than certain. See John 100% M. T., 306, 316, 1380, 1385, denied, v. Paula 524 Pa. 571 A.2d cert. 498 850, 140, (1990); U.S. 111 S.Ct. 112 L.Ed.2d 107 Shaffer, Smith v. 511 421, (1986). this, Pa. 515 Despite A.2d 527 suggest I they would that extremely probative. are 2. cause protect "Good and notice are parties against intended to undue rights 4010, privacy.” invasion of their to Pa. Explanatory R.C.P. Note (2); Burke, 597, 601-02, see Pa.Super. 1095, McGratton v. 449 674 A.2d (1996). 1097

255 legal control. custody in his person for examination cause good motion for only on may be made The order to be examined---- person notice to the upon shown 4010(a). Pa. R.C.P. a workable requirement provides “good cause”

I believe compel whether to determination guide a court’s to standard mere by ... not met is requirement testing.3 “[T]he blood relevance byor mere pleadings of the conclusory allegations rather, case, but condition or mental physical good that by moving party showing an affirmative requires Amram Goodrich ordering the examination.” exists for cause Son, Inc., & 4010(a):10, v. C.H. Shoemaker quoted § Uhl 2d (1994) 1358, 1, n. 1 230, A.2d 1363 239 n. 637 Pa.Super. 432 Holder, 379 v. (Beck, J., Schlagenhauf see also dissenting); (1964) (discussing the 104, 234, L.Ed.2d 152 85 S.Ct. U.S. 35, from Pa. Fed.R.Civ.P. “good requirement cause” drawn). testing for the If cause is shown good 4010 is R.C.P. father, he I or the believe alleged presumed of either or the tested, despite be should by estopp finding suggesting of facts presence el.4 5104(c) of Authority compel testing also found in section blood is

3. Paternity, 23 Pa. Cons. to Determine Uniform Act on Blood Tests 5104(c) (1991). part: in relevant Section states Stat. fact, paternity ... of a child is a relevant any ... in which matter [i]n court, upon suggestion made or on upon own initiative or its involved, or, upon any person motion whose blood behalf mother, ..., alleged child any party shall order the to the action to submit to blood tests. father father, testing alleged but been of an has This section authorizes alleged compel interpreted affording right father to as no to the presumed father. See John M. v. testing mother’s husband—the cert, denied, T., 306, 315, U.S. 571 A.2d Paula Because I believe S.Ct. 112 L.Ed.2d 107 longer applied fashion in the presumptions no be in strict such should 4010(a) provides the better standard for paternity, I believe Rule law of determining be ordered. The Rule can whether blood tests should recognize protect individu- uniformly, requirements applied and its privacy al interests. identify biological testing only a man as the allow not I would father. In other a man could not be the but also to show that words, biological testing probative of a lack of connection is as Abandoning the strict use of these doctrines would allow our courts presented, to examine the situation to compel blood if testing made, appropriate showing weigh and to competing factors in to just order reach a result in each case. Given the of marriage, separation, realities today, divorce flexible, issues, I believe a case-by-case approach to paternity acknowledging benefitting from the relative certainty of testing, blood is simply preferable system more than a charac- terized application overarching strict and outdated lead, admits, fictions that legal Majority can as the to unfair results.

Thus, court, I would also remand this case to the trial but for blood testing, hearing not a on estoppel. Since Audrianna Brinkleys married, was conceived while the were and because exists, good cause it would seem reasonable to test George If Brinkley father, first. he is Audrianna’s the case would not, end. If King he is Richard should then be tested. If Mr. King is to believe, shown be Audrianna’s I biological case, given the facts of this that he should then be made her legal father.

It is true that some cases the provided answers by blood testing perhaps will not be for all easy parties to accept. this, Despite my it is belief that clarity and finality provided by a case-by-case approach involving testing outweigh this concern and make such an approach more desirable than the system. current I Accordingly, am unable join decision, in the language Majority’s join but I do the Court’s remand.

NEWMAN, Justice, concurring and dissenting. I in Majority’s concur conclusion that the presumption case, of paternity does not apply but I write separately to express my view that we expand must the factors available to rebut presumption, particularly because of the accuracy and reliability testing of blood determine paternity, employed

it is of and I it believe should be to establish either status. Majority’s from the decision to I dissent respectfully also estoppel issue. this case for a determination remand mother nor the that neither the clearly indicates The evidence challenging from the husband’s is estopped husband marriage. out as a child neither held Audrianna because

FACTS Therefore, area of the law. Paternity is a fact-sensitive to important facts of this case is the relevant emphasizing (1) does not demonstrate (3) (2) case, a and estoppel is not relevant issue apply, testing to decide logical step perform next is to father, Audrian- King (King), Richard whether father. biological na’s (Lisa) ex-husband, Brinkley George

Both Lisa and her now Brinkley (George) during testified that the time of Audrian- February they na’s did not conception, presumably engage Although they sexual intercourse. continued to live house, George slept slept in the same on the couch while Lisa Furthermore, testified, King in the bedroom. Lisa and did deny, King sexually prior not that she and were involved to November of 1990 until June of 1991. about child,

George King never held Audrianna out as his daughter full for Audrianna as his accepted responsibility years King the first two of her life. Lisa’s side Audrianna; hospital gave paid at the when she birth to he he visited support approximately years;1 child for two Audri regularly; anna and Lisa and he included Audrianna on his a policy. sought medical insurance Once Lisa court order King's giving money 1. Lisa testified that wife knew that he was Lisa for person writing support King the check for child Mrs. was the support. King giving per $100 had been Lisa month but when she Audrianna, support money he told him she needed more to refused. compel give Lisa then threatened to take him to court to him to her appears agreed begin giving money. King It then more that Mrs. month, per payments $150 however the ceased once Lisa filed the Lisa Complaint Support. securing support payments the child he King, denied and refused to support Audrianna.2 PATERNITY

PRESUMPTION OF It long Pennsylvania has been the law that a child born to presumed married woman is to be a child of the marriage. McCandless, Freedman v. 654 A.2d 529 also, 5102(b). See (a) Pa.C.S.A. This arose (b) marital protect integrity prevent a child from child, being labeled “bastard” a classification that carried laws, however, legal stigma.3 both a social and a Modern have wedlock, legal stigma erased the of children born out of hence depriving of one of its original purposes. § Pa.C.S.A. 5102.4 involving George's obligation support

2. In a collateral matter Audri- anna, 20, County a Mercer Court entered an Order on June concluded, (Mercer order), County based on DNA and blood tests Lisa, Audrianna, George, George and is EXCLUDED as Audrian- suit, Although King na's father. was named in that he claims he never Complaint hearing. received notice of the or the The trial court in the judice judicial County case sub refused to take notice of Mercer adjudication. explained dissenting 3. As the Honorable Berle Schiller in a recent opinion: protected by legitimacy A child could inherit from his had a legal right support against pursue enforceable his father and could actions, (Fathers wrongful certain tort such as death suits. benefitted well, example, through curtesy, only as for which vested when a child bom, through earnings.) entitlement to children’s No such rights illegitimate They were available to children. could not inherit fathers, right support from their were limited ato from their and, support, mothers in the absence of such became wards of the marriage state or church. A child of was also freed from the social stigma bastardy. B., 398, 424-26, 1171, Pa.Super. Ruth F. v. Robert 690 A.2d (1997) (Schiller, J., dissenting). 1971, Assembly legal 4. In the General eliminated the distinction be- woman, tween a child bom to a a married and child born to an unwed by declaring legitimate regardless mother parents' all children of their They rights privi- marital status. likewise accorded all children leges they during parents.” "as if had been born the wedlock of such "presumption legitimacy” 23 Pa.C.S.A. 5102. The is now referred T., "presumption paternity.” to as the John M. v. Paula 312-12 n. 571 A.2d 1383-84 n. 2 also futile in a integrity The marital is goal protecting always marital does not translate society legal where status intimate, relationship.5 The loving, monogamous pre into a married is a child of sumption that a child born to a woman cases, in marriage many is dubious at best and such as here, fable, living morally a both is absurd. We are if “Father legally, family typified by we think that a is Knows Best,” parents respect where and children love and each other and where husband and wife are faithful to each other and Thus, adultery merely figment imagination.6 a of one’s a child born coverture is a child of marriage place society, especially has lost its modern considering testing prove the scientific available both to and to disprove paternity. Majority step today updating

The takes the first concept modern-day ancient to conform with realities. Ac I cordingly, Majority’s holding pre concur with the that the sumption of paternity apply purpose does not where its is not However, served.7 the time come to take next logical has Divorce, unthinkable, regarded socially which was once as is now a 5. acceptable option couples relationships, with broken marital evidenced the current divorce rate. Statistical Abstract 51.1% United States society 6. The conflict between the moral ideals of our is often demon- through example, controversy strated the media. For arose surrounding popular "Murphy the lead character of the television show Brown, successful, newswoman, Murphy single Brown.” became abortion, pregnant, baby chose not to have an and decided to have the Despite presentation out of wedlock. the television show's of a com- society, unwilling mon situation in our some were nevertheless to acknowledge frequency the with which women are faced with this applauded Murphy’s choice. While some abortion, decision not to have an President, then Vice Dan criticized the television Quayle, that, him, comedy depicting typified situation a scenario the collapse family country. Clearly, of the values in our we continue to preconception typical family battle the of the "traditional” with the reality makeup family. of the of the modern Superior recently purpose 7. The Court has the of the characterized protecting parent/child to include an established relation ship, marriage Dettinger v. McCleary, even when the has dissolved. 438 300, (1994). Pa.Super. disagree Superior 652 A.2d 383 I with the expansion purpose presumption beyond preser- Court’s of of the 260 the means of expand in the evolution of law

step rebutting presumption. biological paramount impor of is of

Knowledge parentage reasons, including: discovery genetic of of variety tance for a conditions, especially those conditions medical medical successfully science can or treat when discovered prevent of a child’s innate desire to know early stage; an satisfaction adopted we often observe with biological parents, his or her as children; responsibility; of moral and economic placement biological Because of preservation rights parents. of the determination, not be party of this a should significance to establish unnecessarily attempt restricted his her Therefore, Majority’s I state disagree with the may only be presumption, apply, ment that the when it does non-access to the mothe proof overcome with the husband’s r,8 inability Technology or his has advanced to procreate. a blood tests can exclude a man as the father with level where Therefore, when the degree reliability.9 a 98% marriage. parent/child relationship The nature of the vation estoppel. within the realm of addressed and taken into consideration very dispute Majority's narrow definition of "non- I use of essentially require proof that would that it would have been access” engaged physically impossible her husband to have for the mother and during period conception. relations This Court has in sexual simply of sexual intercourse. Cair- described "non-access” as the lack 249, Sanitary Corp., gle Radiator & Standard 77 v. American Furthermore, (1951). Superior Court has stated that "[i]t A.2d 439 necessary possibility completely that the of access be excluded.” is not Nixon, (1986). Pa.Super. By Nixon v. 511 A.2d relations, requiring physical impossibility evidence of of sexual Majority Superior seem to have reverted to the ancient Court and the proof "beyond standard of that the husband was the seas Cairgle (citing Shepherd, period gestation." Commonwealth v. (1814)). disagree Binnney I this strict definition of "non- with access” and would hold that evidence of lack of sexual intercourse is presumption. sufficient to overcome the Note, Sex, Lies, Ellingboe, Challenging and Genetic Tests: 9. Deborah A. Act, Parentage Presumption Paternity the Marital Under the Minnesota tests, 1994). (April HLA 78 Minn. L. Rev. 1015 n.12 or human tests, leucocyte antigen compare types parties the blood of the relevant person probability given is the child's and calculate the statistical opposed general population parent as to someone in the with the same "parental probability characteristics. This has been referred - Boozer, -, Pa.Super. 693 A.2d 233 index." Reed v.

261 apply, does blood tests should also available to parties to paternity. rebut the The Uniform Act on Blood Tests to Determine Paternity (the Act) expressly permits any the use of blood tests case where paternity is a relevant issue. 23 Pa.C.S. 5104. The Legislature adopted the Act because reliable scientific evi- dence excluding a man as the father of a child is imperative issue, any suit where is an particularly where the child was born during Tyler King, Pa.Super. wedlock. v. 344 78, 86, (1985). 5104(c) 496 A.2d Section the Act confers upon authority compel the courts the interested parties to submit to blood testing as follows:

§ 5104. Blood tests to determine paternity

(c) Authority for test.—In any subject matter to this section in paternity, which or parentage identity of a child is fact, court, a relevant upon its own initiative or upon suggestion made or on behalf of any person whose blood involved, or, upon motion of any party to the action made at a time so as not to delay proceedings unduly, mother, shall order the alleged child and father to submit to If submit any party tests, tests. refuses to the court may resolve the question paternity, or parentage identity of a against child party enforce its order if rights justice others and the interests of require. so The effect of the test results on the presumption is found in subsection (g), provides: grouping provide The HLA blood tests circumstantial evidence of provide whereas DNA test biological results direct evidence of parentage, because DNA matches establish affirmative identification of biological Note, parentage. Ray, Reed.See also Charles Nelson Le

Implications Technology DNA Paternity on Posthumous Determina Deciding Daddy tion: Opinion, Pacts When Give Can’t His 35 B.C. L. 1994). (May Washington County county Rev. was the first Pennsylvania require testing buccal swab DNA instead of blood testing procedure to determine The buccal swab is a where a cotton-tipped stick is rubbed lining between the teeth and inner cheek epithelial to obtain buccal cells. These cells are used to conduct DNA - testing, Anthou, affirmatively prove paternity. which can Cable v. Pa.-, 699 A.2d legitimacy.—The presump- of (g) presumption Effect on wedlock is over- during of a child born legitimacy tion of experts conclusions of all the if court finds that the come the the tests show upon the evidence based as disclosed of the child. the is not the father husband construction, 1 statutory of § 5104. The rules 23 Pa.C.S. give that we should words seq., § 1501 et dictate Pa.C.S. they unless are terms plain meaning in a their phrases statute clearly and 5104(g) of art. 1 Pa.C.S.A. 1903. Section is over paternity that the of provides presumption expressly of is not the father if the tests show that the husband come strenuously avoid Yet, courts have Pennsylvania the child.10 tests absent compel the statute to blood employing ed the is overcome with evidence showing presumption first that the of during period non-access to the mother of the husband’s sterility impotency. or his conception instance, that where a the Court has held Superior For during child deny paternity of a born attempts husband himself, the wedlock, testing blood of compel he not the overcoming presump- child first mother and the without v. evidence. McCue with common law paternity tion denied, 738, McCue, 71, A.2d allocatur 531 Pa.Super. 413 604 (1992). Mershon, 655, Similarly, Scott v. Pa. 613 A.2d 560 (1990), 411, the Court Superior 576 A.2d 67 Pa.Super. 394 a third from blood tests of compelling a mother prohibited presumption had not first rebutted the party because she non-access or inabili- evidence of her husband’s paternity with Bonomo, Pa.Super. also Paulshock v. 443 ty procreate. See denied, 669, (1995), 544 Pa. 677 A.2d allocatur 661 1386 (1996) utilizing mother from blood (prohibiting the A.2d 840 as the father to overcome tests that exclude the husband prevented which also her paternity, probability father’s putative evidence of the presenting provision permits tests to be admitted to We note that this blood disprove presumed father. After or exclude by excluding the as the then the overcome husband is weighed part prove the of the evidence to blood tests can be Nixon, (1986); Pa.Super. 511 A.2d 847 of another. Nixon v. Pa.Super. Hardy, v. 458 A.2d 562 Turek fatherhood). The courts’ threshold of common requirement proof clearly law pursu- rebut erroneous Act, explicitly to the provides ant which that blood tests are an rebutting presumption. alternative method of 23 Pa.C.S. § 5104(g). 5104(c)

Furthermore, permits “any party” Section to re- tests, mother, quest child, would include the Accordingly, the husband or a father. a third party marriage who stands outside and claims of a request child born wedlock is authorized to blood tests himself, child, the mother and the husband to overcome T., In John M. presumption. v. Paula (1990), Court, however, A.2d 1380 a third party denied ability to compel the husband to to blood submit tests to disprove the husband’s This decision based on including the public policy, interest in pro- Commonwealth’s tecting marriages. intact We stated following: the

It is true that Act the relaxes the “to some extent” explicitly provides for it the presumption “is overcome if court finds the that the conclusions of all the experts as the disclosed evidence the upon based tests show that the husband is not the father child.” [23 However, § Pa.C.S. 5104(g) ]. the Act does not relax the father,” extent to the that a “putative a third party who stands outside the relationship marital and at- tempts to establish over a child born to the father,” marriage, may compel the “presumptive the hus- band, to submit to blood tests strength on the of such evidence presented as has been herein. (citations omitted).

Id. at 571 A.2d 1384-85 This interpretation is in plain direct conflict with language the 5104(c). Moreover, § the Act. See 23 Pa.C.S. denying a putative opportunity challenge father the the husband’s paternity his own biological establish parentage, effective ly parental rights terminates his due without course of law. Accord, J.W.T., (Tex.1994).11 In 872 re S.W.2d 189 Because I D., In Michael H. v. Gerald U.S. 109 S.Ct. (1989), Supreme upheld L.Ed.2d 91 United the States Court a Califor- determining paternity in child’s interests that a parent

find preserv- interest unavailing outweigh the Commonwealth’s that, in accordance with I hold marriages, would ing intact relevant fact is a Act, action which to an any party to blood all to submit parties court to order may request the presump- serve to rebut would then These results tests. 23 Pa.C.S. law evidence. tion, of common irrespective 5104(c). perpetuate naive and remiss be both We would the results of ignore strength of here, where, tests; as especially scientific reliable in sexual conduct with having engaged admitted father has accepted has conception, period the mother child for the first two own, supported and has child as his of her life. years only minority becoming one is fast

Pennsylvania tests the results blood accept that does not states presumption. to rebut the husband’s disprove have statutes currently of the states two-thirds Approximately in the determination to be considered tests permitting blood op Jr., 1 The Law Clark, paternity.12 Domestic H. Homer ed.1987). (2d The United States Relations United evidentiary value of accepted has Supreme Court States follows: disprove paternity tests to grouping infal- reliability, accuracy, dependability—even As far as the concerned, any no longer there is test are libility—of the accepted universally test is The result of the controversy. challenge a standing putative father to deprived to a nia statute that Notwithstanding, marriage. the paternity of a child born to husband's prevented recently a that declared that statute Supreme Court the Texas paternity was unconsti- challenging a husband’s putative father from a pursuant law to the deprived him of due course of it tutional because J.W.T., (Tex.1994). Other 189 re 872 S.W.2d Constitution. In Texas putative rights of expanding the following this trend and are states establishing paternity by their own challenge a husband’s fathers to See, § e.g., Cal. Fam.Code parentage. states, those, Pennsylvania, adopted including have at least seven 12. Of to Determine Act on Blood Tests the Uniform statutes similar to Louisiana, 1994); California, (West § Paternity: Fam.Code Cal. (1994); (1972); § Hampshire, 522:1 N.H. Stat. New La.R.S. 9:396-398 (1981); Oklahoma, Oregon, § 501-508 10 Ok. Stat Stat. Ore. Ann. 78-25-18, Utah, (1993); seq. § et U.C.A. 109.258 and is, by distinguished authority. scientific medical There fact, in living authority legal, no medical or repute, who adversely.... be cited now ... practically [TJhere is judicial universal and unanimous willingness give decisive and controlling evidentiary weight to a blood test exclusion Schatkin, of paternity. Disputed Paternity S. Proceedings (1975). § 9.13 Streater,

Little v. 1, 7, 2202, 2206, 452 U.S. 101 S.Ct. join majority L.Ed.2d We should states and accept these reliable scientific tests to the presumption rebut that a child born to a married woman her husband’s child.13 J.H.B., v. (Ala.Civ.

For example, in S.E.B. 605 So.2d 1230 App.1992), Supreme granted the Alabama a Court mother’s request to compel putative her husband and the father testing submit to blood to determine paternity of a child Alabama, In born wedlock. “presumption may be only by overcome clear convincing evidence tends to naturally, show that it is physically, or scientifically impossible husband to Id. be father.” 1232. Similarly, in Hawaii, a father presumptive may request blood tests to 13. Massachusetts positions has taken one of the extreme more by eliminating law favor of a A.B., balancing (1990), test. In C.C.v. 406 Mass. 550 N.E.2d 365 a putative alleged father that he was the father of child born to an intact marriage. Supreme The recognized Judicial Court of Massachusetts putative the conflict between the interests of the father and the interest child, preserving legitimacy of the and held as follows: We continue principle to adhere to the common law that motivated legitimacy—that strong there is interest in not convinced, bastardizing however, We longer children. are no protected only by that interest can requiring be the rebuttal of a presumption by proof beyond a reasonable doubt. In view of the gradual illegitimate legal position, betterment of child’s purpose presumption, coupled weakens the behind the with the fathers, corresponding recognition putative unwed interests of we longer any think that there is no for a need legitimacy. protected adequately The interests can be requiring putative plaintiff’s that a position required father in the prove paternity by convincing clear and evidence. C.C., that, at 370. The further court held if the father could parent/child relationship demonstrate a substantial between himself child, disprove he need not the husband’s before

proving his own. Id. 266 Roe, P.2d Haw.App. his Doe v. 9 859

disprove paternity. (1993). pre a more relaxed Hampshire employs 922 New “may [] be rebutted under sumption paternity, satisfactory proof that the husband not the common law is. others, tests, father,” testimony by experts or including blood evidence, evidence, probability medical or scientific statistical fa the child and the resemblance between physical ther, her Bod acquiescence by the mother and husband. or (1996). Illinois, Brooks, 1179 In v. 141 N.H. A.2d well 686 father, as the the court blood exclude husband once tests if alleged biological parent an father is the may presume that (1) do not exclude him as alleged the blood tests of the father (2) 1 that probability is a of at least 500 to the father and there Keller, ex v. 251 People is the rel. Stockwill he father. Ill.Dec. N.E.2d 816 Utah Ill.App.3d 191 623 issue, any is an tests case where requires blood the may conclusively rebut and the results (Utah 1990). Schoolcraft, 710 But In re 799 P.2d F.M., 1200 (Colo.Ct.App. v. P.2d see Colorado—M.R.D. 1991) hus marriage challenge the not (party permitted limitations beyond five-year the statute of band’s arose from tests competing presumption where even that the father probability alleged that resulted in a 99.86% child); and v. parent Iowa—Dye biological (Iowa 1996) an ex-hus (prohibiting Geiger, N.W.2d overcoming presumptive paternity genetic his with band man’s when establishing another positively tests interest). rebuttal is not in the child’s such best approach permits a more liberal California has husband, child or the to rebut presumed § test Cal. 7541. with blood evidence. Fam.Code father” if he satis- Interestingly, “presumed a man be a he the mother following fies at least one of the criteria: birth; married the time of the child’s child is born are marriage; couple the termination of the days within 300 birth; marry or after child’s attempted has before into out openly man the child his home holds receives child as Cal. his own. Fam.Code Pennsylvania’s establishing to approach clearly is The unwavering outdated. in definitively interests determin- ing biological parentage permit mandate that we use of the to rebut presumption. tests the “limited”

ESTOPPEL Regardless of a party successfully pre- whether the rebuts sumption of the paternity, or does presumption apply, not party may nevertheless estopped denying paterni- be from ty of the husband if either the or the mother holds husband out John M. The the child to a child of marriage. be theory supporting concept is that once the forms husband child, parent/child relationship with the neither nor he permitted mother should be later destroy to that relationship F., discord. Ruth marital because of 690 A.2d at 406-08, however, Majority, The seems to misunderstand concept of paternity by estoppel by holding that this case should be remanded determine whether is “estopped” Lisa denying her George’s Here, ex-husband paternity. neither George Lisa nor ever held Audrianna out to be a child of the marriage. The clearly evidence demonstrates that Lisa never George father, misled to believe that he was Audrianna’s nor anyone did she lead George else to believe that was the father. Likewise, George denied his paternity before the child was born, supported never the child financially emotionally, or never parent/child formed a relationship with the child. Moreover, King, accepted the child as his own, insurance, paid support, provided child medical guidance offered emotional support parental to Audrian- na. It not sought until Lisa court-ordered support King clear, therefore, his It denied that neither George nor Lisa is estopped from denying George’s paternity.

ESTABLISHING PATERNITY Therefore, step the next is to who is father. establish Logic dictates that a party once overcomes the presumption, or not apply, does the case should be treated of a out of wedlock. The if the child were born § of wedlock is addressed Pa.C.S.

child born out testing14 any compel genetic a court permits genetic states that test results party. Section 4343 relevant father alleged that the indicating greater probability a 99% or an affirmative parent is the creates biological convincing clear and may only rebutted with paternity that are 23 Pa.C.S. the test results unreliable.15 evidence that 4343(c). equally a determi approach apply This should a child born wedlock where nation (b) (a) presump does not apply, either tion overcome.

CONCLUSION to the Therefore, Majority’s I concur the decision with not paternity it holds of does extent that the no relationship where there is marital apply cases However, I of portion Opinion that the preserve. dissent of I estoppel, for a determination because believe remanding "genetic Legislature recently amended the definition of tests” 14. The § blood that confirm or exclude used in Pa.C.S. 4343 to include tests 4302, amended, 2, 1993, July P.L. No. parentage. 23 Pa.C.S. Superior applied § The Court this amendment as follows: 1. law], accept validity higher and eviden- [the From case we must test, such, tiary genetic may be testing DNA as a and as it value of grouping HLA and and As to the other conclusive markers, typing genetic on these will be considered tests based paternity a when creates evidence of level of and is not rebutted index reaches a 99% defendant. Reed, at-, 693 A.2d 240. prove putative paternity of born Currently, father's a child 15. wedlock, challenging party must first rebut the husband’s non-access, sterility impotency, blood tests paternity with evidence or putative excluding then establish the him as the father. Scientific tests costs, promote efficiency time paternity. To reduce the father’s and determination, Legislature invite and involved in this I would effort disprove permit hus- provision party to enact a would greater probabil- band’s with evidence that indicates a 99% Thus, biological ity putative father is the father. one round mother, testing putative father could both the child par- paternity, prove disprove father's the husband’s entage. Instead, that there no such I question this case. would testing King, remand this case for blood Audrian- Lisa and finally na to resolve issue of biological Audrianna’s father. CASTILLE, J., joins in this concurring dissenting opinion.

701 A.2d 190 Pennsylvania, Appellee, COMMONWEALTH v. HALL, Appellant.

Darrick Supreme Pennsylvania. Court of

Argued Oct. 1996. Sept. Decided

Case Details

Case Name: Brinkley v. King

Court Name: Supreme Court of Pennsylvania

Date Published: Sep 17, 1997

Citation: 701 A.2d 176

Docket Number: 15 W.D. Appeal Docket 1996

Court Abbreviation: Pa.