J-A28003-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
K.S. :
:
: No. 914 MDA 2018
APPEAL OF: J.W.M. :
Appeal from the Order Entered May 8, 2018
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-17-09360
BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 17, 2018
J.W.M. (Petitioner) appeals from the order, entered in the Court of
Common Pleas of Lancaster County, denying his petition to intervene in the
custody action between K.S. (Mother) and M.S. (Father). After our review,
we affirm the order based on the opinion authored by the Honorable Jeffrey
A. Conrad.
To summarize, Petitioner had a relationship with Mother approximately
seven years ago; they dated, although not exclusively, between May and July
of 2011. Mother gave birth to daughter (Child) in April of 2012. Mother told
Petitioner at the time she found out she was pregnant that he could be Child’s
father, and she let him know when Child was born. In the six years since
Child’s birth, however, Petitioner has done nothing to support Child,
emotionally or economically. Petitioner did not seek paternity testing.
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When Child was two months old, Mother and Father began their
relationship and they started living together when Child was six months old.
Mother and Father married in September 2013, when Child was a toddler.
Thereafter, Mother and Father had two children. At all times, Father has
supported Child and treated her as his own.
On October 16, 2017, Father filed a complaint in divorce (Complaint)
against Mother. In the Complaint, Father sought custody of Child and the
parties’ two biological children.
Petitioner, having reconnected with Mother in 2017 via social media,
filed a petition to intervene and sought court-ordered paternity tests. The
court scheduled a hearing for May 7, 2018. A few days prior to the scheduled
hearing, Father’s counsel filed a praecipe to withdraw the Complaint.
Following the hearing, at which both parties and Petitioner testified, the court
denied Petitioner’s petition to intervene. See Order, 5/7/18.1 This appeal
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1 The order reads:
And now, this 7th day of May, 2018, following a hearing on the
Petition to Intervene attended by Plaintiff [M.S.], Defendant
[K.S.], and Potential Intervenor [J.W.M.], each with counsel, the
Petition to Intervene is hereby DENIED.*
*In Buccieri v. Campagna, [889 A.2d 1220 (Pa. Super.
2005)], the Superior Court denied a putative father’s
request for genetic testing on the grounds that he was
estopped from making a paternity claim because he was on
notice that the child may be his yet he failed to pursue a
claim for seven years. This case is factually similar in that
[Petitioner] knew he was a potential father prior to or shortly
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followed. Both the trial court and Petitioner have complied with Pa.R.A.P.
1925.
Petitioner raises the following claims on appeal:
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after [Child’s] birth but did nothing to pursue confirmation
of paternity for nearly six years. [Petitioner] relies on the
case of K.E.M. v. P.C.S., [38 A.3d 798 (Pa. 2012)], in which
the Supreme Court directed that in “cases involving
separation and divorce . . . the Uniform Act on Blood Tests
to Determine Paternity is now to be applied on its terms
insofar as it authorizes testing.” Id. at 810-11. The Act
provides that “[i]n any matter . . . in which paternity,
parentage or identify of a child is a relevant fact, the court
. . . upon motion of any party to the action . . . shall order
the mother, child and alleged father to submit to blood
tests.” 23 Pa.C.S.A. § 5104(c). However, [Petitioner] is not
a party to this action, and this case is distinguishable from
K.E.M. because it is not one involving separation and
divorce. While [Father] did file divorce proceedings against
[Mother], those claims have been withdrawn and both
[Mother and Father] testified credibly of their reconciliation.
More importantly, [Petitioner] advanced no evidence that it
is in [Child’s] best interests that he be allowed to disrupt her
relationship with [Father]. [Father] has been her father
since she was six months old. He has cared for her
financially, practically, and emotionally. He treats her the
same as he does his biological children with [Mother]. He
signed a support order with the Office of Domestic Relations
during the separation and even attempted to have his name
listed on her birth certificate – both events occurring prior
to [Petitioner’s] Petition to Intervene. In short, [Father] is
the only father [Child] has ever known, and the court finds
that it is not in her best interests to disrupt that relationship.
Order, 5/7/18.
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1. Whether the court erred and abused its discretion in not
permitting [Petitioner] to intervene in this custody action?
2. Whether the trial court erred and abused its discretion in its
application of the doctrine of paternity by estoppel to the
facts and circumstances of this case?
3. Whether the trial court erred and abused its discretion in not
considering the fraud on the part of Mother, and its effect
on [Petitioner’s] actions and the course of this matter?
4. Whether the court erred and abused its discretion in not
ordering genetic testing pursuant to statute and case law
under the facts and circumstances of this case?
Appellant’s Brief, at 5-6.
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 [s]he has known all his life is not in fact h[er] father.
Fish v. Behers, 741 A.2d 721, 724 (Pa. 1999) (citation omitted). The
doctrine of paternity by estoppel is rooted in the best interests of the child.
Vargo v. Schwartz, 940 A.2d 459 (Pa. Super. 2007).
After our review, we conclude the trial court properly applied the
doctrine of paternity by estoppel and precluded application of the Uniform Act
on Blood Tests to Determine Paternity. 23 Pa.C.S.A. § 5104.2 We agree with
the trial court’s conclusion that Buccieri is dispositive and that Petitioner’s
reliance on K.E.M. is misplaced. Under the circumstances of this case,
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2 The Uniform Act on Blood Tests to Determine Paternity creates a statutory
right to obtain blood testing to determine paternity; the right is not absolute
and must be balanced against competing societal/family interests. See
Miscovich v. Miscovich, 688 A.2d 726 (Pa. Super. 1997).
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Petitioner is estopped by his own past conduct from obtaining genetic tests to
establish his paternity and/or assert his paternal rights. Buccieri, supra.
Where the putative father has failed to exercise his parental claim, there is no
reason to disturb the familial relationship that has developed among Mother,
Father and Child. Id. “When balanced against societal concerns for
constancy in [Child’s] life, we see no reason to allow [Petitioner] to march into
[Child’s] life at this late date.” Buccieri, 887 A.2d at 1227. See also B.K.B.
v. J.G.K., 954 A.2d 630, 636 (Pa. Super. 2008) (concluding that alleged
biological father’s failure to pursue parental rights until child was nine years
old estopped him from challenging mother’s former husband’s status as child’s
father); Moyer v. Gresh, 904 A.2d 958, 962 (Pa. Super. 2006) (where
biological father voluntarily relinquished parental rights to another man during
first nine years of child’s life, biological father was estopped from asserting
parental rights towards child); In re M.J.S., 903 A.2d 1, 10 (Pa. Super. 2006)
(holding biological father estopped from asserting paternity where he knew
another man had been named father, and despite having right to acknowledge
paternity, he waited to assert paternity until three years after child had been
adopted).
The legal fictions perpetuated through the years, including the
proposition that genetic testing is irrelevant in certain paternity cases, retain
their greatest force where, as here, there is an intact family seeking to defend
itself against third-party intervention. The evidence of record here supports
the trial court’s findings; thus, we will not disturb them. See Vargo, supra
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at 462. Accordingly, we affirm the trial court’s order and direct the parties to
attach a copy of Judge Conrad’s opinion in the event of further proceedings.
Order affirmed.
Judge Musmanno joins the Memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2018
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Circulated 12/11/2018 11:07 AM
ENTERED AND FILED
PROTHONOTARY'S OFFICE
LANCASTER,PA
... Electronlcal ly Flle