Family Matters

Doctrine of Paternity by Estoppel and Child Custody

The doctrine of paternity by estoppel is most often applied in child support cases to either preclude a man who has held the child out as his own from avoiding support of the child after his relationship with the child’s mother has ended or to preclude a mother “who held one man out as her child’s father from seeking support from another man” at a later time. The Pennsylvania Supreme Court has stated: “Those who mislead a child as to the identity of his or her natural father, cannot then turn around and disprove their own fiction to the detriment of the child.”

The doctrine of paternity by estoppel can also be raised in an effort to preclude a biological father from asserting his parental rights over a child. However, it is uncommon to see the doctrine of paternity by estoppel applied in child custody cases.

The doctrine of paternity by estoppel was front and center in the recent Pennsylvania Superior Court child custody case of T.E.B. v. C.A.B. v. P.D.K. Jr., 74 A.3d 170 (Pa. Super. 2013).

The facts of the T.E.B. case, in part, are as follows: C.A.B. (the mother) had an affair with P.D.K. (the father) while she was married to T.E.B. (the husband), according to the opinion. In 2006, C.A.B. became pregnant with the youngest of her four children. Because T.E.B. had undergone a vasectomy that had not been reversed, C.A.B. immediately “concluded that P.D.K. was the father of the unborn child,” according to the opinion. C.A.B. and T.E.B. also had not been intimate at the time of conception of the child. C.A.B. informed T.E.B. that he was not the father of the child and T.E.B. “coerced the mother into terminating contact with P.D.K., stating to the mother that [he] ‘would do everything in his power, lie, whatever he had to do, to keep the girls and take the girls away from'” the mother. While pregnant, C.A.B. also informed P.D.K. that he was the father of the child. Two weeks after the child was born, P.D.K. accompanied the mother and the child to a doctor’s appointment for the child. According to the opinion: “At that time [P.D.K.] informed the mother of his desire to be in the child’s life and his willingness to pursue legal recourse. The mother … became upset and the mother and P.D.K. ‘parted ways.'”

After P.D.K. hired an attorney, and C.A.B. and T.E.B. denied P.D.K.’s request for a paternity test, P.D.K. filed a complaint for partial custody. T.E.B. filed preliminary objections “alleging the mother was ‘shocked’ to have received the custody complaint ‘as she has asserted since the birth of child that her husband, [T.E.B.], is the natural father of said child.'” The trial court granted the preliminary objections and dismissed P.D.K.’s custody complaint with prejudice. Thereafter, P.D.K. did not pursue further legal action because he feared “retaliation,” the opinion said.

Approximately six months later, T.E.B. filed a custody complaint against C.A.B. and C.A.B. later filed a divorce action against T.E.B. C.A.B. and P.D.K. then resumed their relationship and agreed to have a DNA test performed regarding the child. After the paternity test was conducted, P.D.K. filed a petition to intervene in the custody dispute between C.A.B. and T.E.B. T.E.B. filed preliminary objections to P.D.K.’s petition to intervene, the opinion said. The basis for the preliminary objections was that the child was born to an intact family and the presumption of paternity barred the petition to intervene, along with the fact that P.D.K.’s custody complaint had previously been dismissed with prejudice. After a hearing, the trial court dismissed T.E.B.’s preliminary objections and granted the petition to intervene. An appeal from that order filed by T.E.B. was quashed as interlocutory.

Thereafter, a custody hearing was held before a conference officer. At that time, C.A.B. and P.D.K. were engaged and living together. The conference officer proposed that the parties have shared legal and physical custody of the child. C.A.B. filed exceptions to the conference officer’s report and the trial court accepted the conference officer’s recommendations and denied C.A.B.’s exceptions. T.E.B. then filed a notice of appeal.

T.E.B. raised three issues on appeal. According to the opinion: “Although he states separate questions, all of the husband’s arguments are based upon his claim that proper application of a doctrine of paternity by estoppel bars P.D.K. from asserting any parental claim to the child.” The opinion further states: “The husband first argues that the doctrine precluded P.D.K. from intervening; and second, that it prohibited introduction of DNA test results.” The Superior Court stated that the doctrine of paternity by estoppel seeks to protect the interests of the child. In citing the Pennsylvania Supreme Court, the Superior Court further stated: “Estoppel is based on the public policy that children should be secure in knowing who their parents are. If a certain person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told that the father he had known all his life is not in fact his father.” Recently, in the case of K.E.M. v. P.C.S., 38 A.3d 798 (Pa. 2012), the Pennsylvania Supreme Court stated that paternity by estoppel will apply only where it can be shown “on a developed record” that it is in the best interest of the child involved.

In paternity by estoppel cases, the focus often is on whether the putative father has failed to timely exert his parental claim. If the putative father acquiesces in the fiction that someone else is the father of a child, the doctrine of estoppel may be invoked and will have a higher probability of precluding the putative father from assuming his parental rights in such an instance.

In the present case, there were a number of years where P.D.K. failed to assert his parental rights. However, P.D.K. asserted his rights, hired an attorney who requested DNA testing on his behalf and filed a complaint for custody, shortly after the child was born. P.D.K.’s attempt to assert his parental rights when the child was born were thwarted by C.A.B. and T.E.B. when they lied in the preliminary objections, which resulted in a favorable ruling dismissing P.D.K.’s custody complaint with prejudice. According to the opinion, “Because of the actions of the husband and mother … the trial court properly declined to utilize the doctrine of equitable estoppel to prevent his intervention in the custody matter.”

The “best interest of the child” analysis remains the primary focus in all child custody cases. This analysis is also interwoven in the doctrine of paternity by estoppel. In the T.E.B. case, T.E.B. also argued on appeal that “the trial court abused its discretion in finding the child’s best interests are served by awarding shared custody to P.D.K.” Interestingly, the Superior Court held that the husband waived this issue by failing to file exceptions to the report of the hearing officer. However, the Superior Court stated that even if the husband preserved the issue on appeal, the Superior Court would not disturb the trial court’s order. An important lesson can be learned from this portion of the Superior Court’s ruling. If one is not satisfied with a recommendation of a hearing officer or master and an opposing party files exceptions, cross-exceptions should be filed as well to preserve issues on appeal.

It is important to note that the opinion provides numerous quotes from the record of the parties involved in this matter. In the quotes, the parties indicate the importance of each of them remaining involved in and being integral parts of the child’s life. The custody order entered by the court enabled all of the parties to remain actively involved in the child’s life. This was an important factor for the Superior Court in making its decision.

This case is significant for the family law practitioner because in addition to highlighting the importance of filing cross-exceptions to a recommended order of a master or hearing officer, it reiterates that the doctrine of paternity by estoppel still exists in child custody cases. At first blush, it would appear that the doctrine of paternity by estoppel was not applied in this case. However, the Superior Court highlights that the trial court “actually did employ the doctrine, and to the husband’s benefit, as it has allowed the husband to continue the relationship he established with the child rather than deny the husband custody rights due to his lack of biological parentage.”

_{Reprinted with permission from the December 10, 2013 edition of The Legal Intelligencer © 2013 ALM Media Properties, LLC. All rights reserved.  Further duplication without permission is prohibited. For information, contact 347-227-3382, reprints@alm.com or visit www.almreprints.com. # 201-12-13-05}