201 Pa. Super. 554 | Pa. Super. Ct. | 1963
Lead Opinion
Opinion by
The parties in this support case were married August 4, 1956, and separated January 1, 1963. While they were living together as husband and wife, the two children who are the subjects of this support action were born, LaTifa Weston on May 9, 1959, and Kasseem Weston on October 18, 1960.
The court below summarily ordered the blood test upon the defendant’s petition. It was “of the opinion that under the decision of the Superior Court in Commonwealth ex rel. Goldman v. Goldman, 199 Pa. Superior Ct. 274 (September 14, 1962) [it] had no alternative but to enter the order prayed for in the husband’s petition.”
There is something inherently repulsive about a man questioning the paternity of children who were conceived by his wife and born to her while he was living with her and who were accepted and held out to the world by him as his children until his and his wife’s personal differences led to a support action.
It has been the law of this Commonwealth since its earliest days that a husband could not question the legitimacy of children under such circumstances. Both he and his wife are denied the right to testify that they did not have intercourse within the time when she conceived the child.
The children of this case are relatively young, but if a compulsory blood test may be ordered in this case it may be ordered in a case involving older children. It is unfortunate for a child when circumstances cause it to doubt its paternity, but it is cruel for the law to inject such doubts into a child’s mind when there are no circumstances to support the doubts except an allegation by an irate man who previously had been known to the child and the world as its father.
In the case of Commonwealth ex rel. O’Brien v. O’Brien, 390 Pa. 551, 136 A. 2d 451 (1957), the Supreme Court held that the blood test Act of May 24, 1951, P. L. 402 did not apply to actions brought to obtain an order of support for a child born during wedlock. Thereafter, the legislature repealed the Act of 1951 and passed the Act of 1961, supra. In Commonwealth ex rel. Goldman v. Goldman, 199 Pa. Superior Ct. 274, 184 A. 2d 351 (1962), we held that the Act of 1961, supra, applied to actions brought for the support of children born during wedlock, but suggested that a husband who was living with his wife as her husband when a child was born to her and accepted that child as his own and held it out as his own was estopped from denying paternity of that child. In that case the defendant had left his wife shortly after one of the two children in question was born and prior to the birth of the second child. We affirmed an order directing that a blood test be taken.
Here, the defendant had lived with his wife for several years after the birth of both children. There is no suggestion that he did not accept them as his
There is a motion to quash this appeal on the ground the order is interlocutory. We allowed an appeal under similar circumstances in Commonwealth ex rel. Goldman v. Goldman, 199 Pa. Superior Ct. 274, 184 A. 2d 851 (1962), supra. We believe that the motion to quash should be dismissed under the authority of Myers v. Travelers Insurance Company, 353 Pa. 523, 46 A. 2d 224 (1946). See also 2 P.L.E. Appeals §40 and Lovering v. Zoning Board of Adjustment, 406 Pa. 339, 178 A. 2d 740 (1962).
Order directing the blood test is reversed.
Dissenting Opinion
Dissenting Opinion by
I fully agree that it is “inherently repulsive” to permit a father to question the paternity of his children in a support proceeding. This was a compelling rea
Concurrence Opinion
Concurring Opinion by
My views on this subject are fully set forth in my dissenting opinion in Commonwealth ex rel. Goldman v. Goldman, 199 Pa. Superior Ct. 274, 184 A. 2d 351, in which Judge Watkins joined. It is, therefore, unnecessary to discuss them further except to say that I readily concur in the refusal of a blood test in the present case.