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B.J.B. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
T.G. AND W.G,
Appellee No. 868 MDA 2014
Appeal from the Order Entered April 21, 2014
In the Court of Common Pleas of Schuylkill County
Civil Division at No(s): S-1628-2013
BEFORE: BOWES, J., OTT, J., and STABILE, J.
CONCURRING MEMORANDUM BY BOWES, J.: FILED JANUARY 21, 2015
I concur with the learned majority’s disposition and join the entirety of
its cogent and well-reasoned statement of rationale. I write separately only
to emphasize my perspective that scientific advancements and the evolving
perception of family have relieved the need for our continued mechanical
application of the presumption of paternity doctrine, which I believe is
outdated.
The only surviving purpose of the presumption of paternity, which was
formally referred to as the presumption of legitimacy, is to protect the
sanctity of an intact family unit. As former Chief Justice Flaherty reiterated
in the opinion announcing the judgment of the court in Brinkley v. King,
701 A.2d 176, 180 (Pa. 1997) (plurality) (Nigro, J., and Newman, J.,
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concurring and dissenting separately), “[t]he public policy in support of the
presumption of paternity is the concern that marriages which function as
family units should not be destroyed by disputes over the parentage of
children conceived or born during the marriage. Third parties should not be
allowed to attack the integrity of a functioning marital unit, and members of
that unit should not be allowed to deny their identities as parents.” The
High Court restated these policy concerns two years later in Strauser v.
Stahr, 726 A.2d 1052, 1054 (Pa. 1999) (Nigro, J., and Newman, J.,
dissenting separately), in holding that “where the family (mother, child, and
husband/presumptive father) remains intact at the time that the husband's
paternity is challenged, the presumption is irrebuttable.” See also id. at
1055-1056.
Herein, the majority concludes, and I am constrained to agree, that
our Supreme Court’s holding in Strauser, supra and this Court’s rationale
in E.W. v. T.S., 916 A.2d 1197 (Pa.Super. 2007), precluded Appellant, a
third party, from invoking the Uniform Act on Blood Tests to Determine
Paternity, 23 Pa.C.S. § 5104, to challenge the presumption of paternity in
this case. Thus, although I find intellectually compelling Appellant’s
assertion that § 5104(c) and (g)1 relaxed the conventional presumption of
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1
Section 5104(c) empowers courts to submit parties to blood testing in
order to determine paternity, parentage, or identity of a child. It provides,
(Footnote Continued Next Page)
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paternity, this argument cannot overcome the weight of our jurisprudence
that interprets the statute in a manner that limits its application to scenarios
where: (1) the family is no longer intact when paternity is challenged; (2)
the husband fails to accept parental responsibility for the child; or (3) clear
and convincing evidence establishes impotency, sterility, or non-access when
conception occurred. See Brinkley, supra at 179. Indeed, it remains well
ensconced that, “The presumption of paternity is unrebuttable when, at the
time the husband's paternity is challenged, mother, her husband, and the
child comprise an intact family wherein husband has assumed parental
responsibilities for the child.” Vargo v. Schwatrz, 940 A.2d 459, 463
_______________________
(Footnote Continued)
In any matter subject to this section in which paternity,
parentage or identity of a child is a relevant fact, the court, upon
its own initiative or upon suggestion made by or on behalf of any
person whose blood is involved, may or, upon motion of any
party to the action made at a time so as not to delay the
proceedings unduly, shall order the mother, child and alleged
father to submit to blood tests. If any party refuses to submit to
the tests, the court may resolve the question of paternity,
parentage or identity of a child against the party or enforce its
order if the rights of others and the interests of justice so
require.
23 Pa.C.S. § 5104(c).
Section 5104(g) addresses the effect of scientific evidence on the
presumption of paternity as follows: “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.”
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(Pa.Super. 2007). See also K.E.M. v. P.C.S., 38 A.3d 798, 810 n.8 (Pa.
2012) (recognizing that legal fictions regarding irrelevancy of paternity
testing retains “their greatest force where there is truly an intact family
attempting to defend itself against third-party intervention.”).
I acknowledge that we are bound by the entrenched case law
regarding the broad application of the presumption of paternity, and the
systematic preclusion of third-party challengers to paternity of a child in an
intact family. I believe that the General Assembly or our High Court should
revisit this legal fiction in light of the advancements in testing and our
contemporary perspective of family and fashion a flexible approach for
ordering paternity tests that affords trial courts the discretion to weigh
scientific evidence of paternity in line with the express terms of § 5104(c)
and (g).
Revealingly, the respective dissenting opinions that Justice Nigro and
Justice Newman authored fifteen to seventeen years ago in both Brinkley,
supra and Strauser, supra continue to resonate.2 As the cruces of the
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2
Justice Nigro and Justice Newman concurred with the portion of the lead
opinion in Brinkley that found that the presumption of paternity did not
apply in that case because the marriage was no longer intact, but both
disagreed with the opinion’s position that the presumption was unrebuttable
when a third party asserts his paternity to a child born to an intact marriage.
In Strauser v. Stahr, 726 A.2d 1052, (Pa. 1999), both justices categorically
rejected the majority’s mechanical application of the doctrine to form an
unrebuttable presumption of husband’s paternity, absence a showing of
(Footnote Continued Next Page)
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justices’ estimations in these seminal cases remain relevant, I believe they
warrant further discussion.
In Brinkley, Justice Nigro stressed that the presumption of paternity
should not be applied mechanically in every case and noted that, “In light of
the changed, and increasingly fluid, nature of the family, and the increased
rates of divorce and separation, these legal fictions have become less
reflective of social reality. They are now more problematic than useful, and
more likely to lead to unfair results.” Brinkley, supra at 182 (Nigro, J.
concurring and dissenting). The learned Justice Nigro opined, “when the
reason for a law ceases, the law should also cease . . . I believe that the
time has come to take this principle to its logical conclusion in the law of
paternity.” Id. Instead of continuing to apply the presumption of paternity
as a robotic bar to third-party challengers, Justice Nigro advocated an
approach that permitted trial courts to utilize a range of tools, including
scientific evidence, to determine paternity on a case-by-case basis. He
explained the obvious benefit of this approach would be allowing the trial
courts to decide whether to employ scientific evidence as conclusive or
simply consider that evidence along with other factors, including the existing
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(Footnote Continued)
physical impossibility, when the family remained intact. Then-Justice and
now former Chief Justice Castille joined Justice Newman in both cases.
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family dynamic, to reach an equitable result. Id. at 182, 183. He
continued,
Given the realities of marriage, separation, and divorce today, I
believe a flexible, case-by-case approach to paternity issues,
acknowledging and benefitting from the relative certainty of
blood testing, is simply more preferable than a system
characterized by the strict application of overarching and
outdated legal fictions that can lead, as the Majority admits, to
unfair results.
Id. at 183. In sum, Justice Nigro opined, “it is my belief that the clarity and
finality provided by a case-by-case approach involving blood testing . . .
make such an approach more desirable than the current system.” Id. at
184.
Subsequently, in his dissenting opinion in Strauser, supra, Justice
Nigro reiterated his preference for a flexible methodology to paternity
testing. He observed, “Such an approach permits a court to weigh the
relevant evidence and circumstances of each particular situation, including
blood test results, concerns as to the maintenance of an existing family unit
and the interests of the child, in order to reach an equitable result.” Id. at
1057 (Nigro, J. dissenting).
Justice Newman shared Justice Nigro’s distaste for the mechanical
application of the presumption of paternity. Her dissenting opinion in
Brinkley observed that, even then, the majority of jurisdictions
(approximately two thirds) permitted trial courts to use blood tests to rebut
the presumption of paternity. See Brinkley, supra at 187 (Newman, J.
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concurring and dissenting). She also expressed her position that a party in a
paternity case should be free to employ scientific evidence pursuant to §
5104, regardless of the status of the family unit. Id. at 186 n.3.
Justice Newman recognized that the presumption of paternity arose, in
part, to prevent children born to an intact family from receiving the legal
designation of bastard. Bastard children were subject to the unfair legal
ramifications of illegitimacy, such as the inability to inherit from the birth
father or sue for child support. They were also forced to endure the
concomitant social stigma associated with the designation generally.
Accordingly, the application of the presumption of paternity was a form of
protection from the unfair classification. Id. at 182 n.3. She reasoned that
since contemporary laws abolished the undignified designation and its
significant legal ramifications, the protections previously afforded by the
doctrine in that regard are unnecessary. Id.
Thereafter, Justice Newman stressed that the only remaining purpose
of the doctrine, protecting the sanctity of marriage, was outmoded. She
opined,
The goal of protecting marital integrity is also futile in a
society where legal marital status does not always translate into
a loving, intimate, monogamous relationship. The presumption
that a child born to a married woman is a child of the marriage is
dubious at best and in many cases, such as here, is absurd. We
are living a fable, both morally and legally, if we think that a
family is typified by “Father Knows Best,” where parents and
children love and respect each other and where husband and
wife are faithful to each other and adultery is merely a figment
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of one's imagination. Thus, the presumption that a child born
during coverture is a child of the marriage has lost its place in
modern society, especially considering the scientific testing
available both to prove and to disprove paternity.
Id. (footnotes omitted).
Justice Newman also stressed that a child would benefit from
confirmation of his or her birth father. She identified a litany of advantages,
including the discovery of potential genetic conditions, satisfaction of a
possible desire to know one’s birthparents, and the allocation of economic
responsibility for the child. Id. at 186. Moreover, since denying a putative
father’s right to challenge the presumptive father’s paternity effectively
terminates his parental rights without any legal recourse, the use of
scientific evidence to determine paternity preserves the fundamental right of
a father to make decisions regarding the care, custody, and control of his
child. Id. at 186, 187.
Again, in Strauser, Madame Justice Newman reaffirmed her disfavor
of the mechanical application of the presumption of paternity and the
prevailing view in this jurisdiction that the presumption cannot be rebutted
with genetic testing pursuant to § 5104(c) and (g) when the family is intact.
She added that the argument that public policy, i.e., the sanctity of the
intact marriage, favors continuing the legal fiction of an unrebuttable
presumption of paternity is misplaced because, by promulgating § 5104(c)
and (g), the legislature addressed the issue squarely, “codified the “public
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policy” of this Commonwealth and clearly and expressly provided that a
court may compel interested parties to submit to blood testing, and that
such blood testing can rebut the presumption of paternity.” Strauser, supra
at 1058.
Without exception, I agree with the sentiments of Justice Nigro and
Justice Newman on this issue. The flaws associated with the emotionless
application of the presumption of paternity are particularly evident in this
case where Mother’s duplicity, dishonesty, and deceit prejudiced both
Appellant and the presumptive father. Mother lied to her husband about the
extent of her relationship with Appellant, and then deceived Appellant
regarding, inter alia, the state of her marriage when the child was
conceived, her intention to terminate her marriage, and the child’s paternity.
Prior to the pregnancy, Appellant accompanied Mother to a procedure to
have her IUD removed, apparently in anticipation of the resultant
pregnancy, and Appellant was excited to be an expectant father. N.T.,
3/26/14, at 191, 192-193. He and Mother discussed moving closer together
and perhaps eventually an engagement. Id. Appellant attended at least
one of Mother’s post-fertilization obstetrician examinations and was present
for the initial ultrasound and pregnancy confirmation screen. Id. at 192,
193. Indeed, if a factual scenario warranted a relaxed view of the
presumption of paternity that permitted the consideration of scientific
evidence and the child’s best interest in order to reach an equitable result, it
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is here. The record bears out that both Appellant and the presumptive
father maintained an intimate relationship with Mother when the child was
conceived and that prior to terminating any association with Appellant,
Mother held the newborn out as Appellant’s child to Appellant’s family.
However, rather than permitting the trial court to make a fully
informed decision grounded on O.G.’s best interest, our jurisprudence
required the trial court to ignore the reality of the instant situation and
perfunctorily impose the presumption of paternity to preclude Appellant from
asserting his parentage. Consequently, I join my esteemed colleagues in
affirming the trial court’s decision to sustain Mother’s preliminary objections
and dismiss Appellant’s custody complaint.
Nevertheless, in alignment with the positions espoused by former
Justices Nigro and Newman in Brinkley and Strauser, I emphasize that the
time has arrived for this jurisdiction to revisit the “naive and remiss”
perpetuation of this legal fiction over conclusive scientific evidence. See
Brinkley, supra 188 (Newman, J. concurring and dissenting) and Strauser,
supra at 1058 (Newman, J., dissenting). Thus, mindful of the
advancements in paternity testing, the current flexible notion of what
constitutes a family, and the accessibility, affordability and reliability of DNA
tests, I believe that the arguments that the distinguished justices articulated
in Brinkley and Strauser reverberate even greater today. Accordingly,
while I join the majority memorandum, I favor an approach that affords trial
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courts the discretion to consider the conclusive results of paternity testing
pursuant to § 5104(c) and (g), notwithstanding the existence of an intact
marriage between the birth mother and the presumptive father.
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