K.E.M. v. P.C.S.

Justice BAER,

dissenting.

I applaud the Majority for recognizing the need for a more case-specific approach to paternity by estoppel determinations — a development in the law that I view as long overdue. The Majority engages in an astute analysis, and takes an important step *814in the right direction by limiting the application of paternity by estoppel to cases where it serves the best interests of the child. Nevertheless, I am compelled to dissent because, left to my own devices, I would abrogate the doctrine in its entirety, with the limited exception of where its invocation would preserve the status of a husband who chooses to parent a non-biological child born into an existing marriage. Absent the scenario where mother’s husband willingly undertakes parental responsibility of his wife’s child and desires to maintain it, I see no reason to perpetuate the legal fiction that the individual who cared for the child is the parent.

I find that in today’s world, the justifications supporting the doctrine exist only when the mother’s husband wishes to continue parenting his non-biological child. These justifications are utterly unconvincing when applying the doctrine to the circumstances presented herein, where the biological father is attempting to avoid the imposition of a support obligation. I find also that application of paternity by estop-pel in the instant case leads to inequitable results as it permits the biological father1 to evade his parental obligations, while punishing the husband for the laudable conduct of affording emotional and financial support to the child of his wife, even after he discovered that the child was not his issue.

A recurring theme justifying the historical application of paternity by estoppel is that children should be secure in knowing who them parents are, and should not be traumatized by the discovery that the father they have known is not, in fact, their father. See Majority Opinion at 801-02 (citing Fish v. Behers, 559 Pa. 523, 741 A.2d 721, 724 (1999)). Similarly, the Majority cites to the proposition that “the law cannot permit a party to renounce even an assumed duty of parentage when, by doing so, the innocent child would be victimized.” Majority Opinion at 807 (quoting Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. 307, 369 A.2d 416, 419 (1976)).

While these views were perhaps forceful before genetic testing could identify a biological father with pragmatic certainty, and when being born out of wedlock carried an onerous stigma, they are of little consequence today, considering that paternity can now be established readily and conclusively, and commentators estimate that forty-one percent of American births are non-marital. Majority Opinion at 808-09 (citing June Carbone & Naomi Cahn, Marriage, Parentage, and Child Support, 45 Fam. L.Q. 219 (2011)). Moreover, it is naive to believe that adults will not tell their child his true parentage, assuming the child is old enough to understand the issue. Thus, realistically speaking, the idea that the child will not discover the identity of his father seems absurd. Equally unavailing is the idea that the child will be more victimized by calling upon his biological father to support him, than he would be by forcing his mother’s husband to carry out such obligations. In my view, the only time these realities will not occur is when the mother’s husband desires to maintain and develop the parental relationship. Thus, I would adhere to the retention of paternity by estoppel in that lone circumstance.

Moreover, as mentioned at the outset, permitting invocation of paternity by es-toppel as a defense by the biological father in a child support action leads to inequita*815ble results. The mother’s husband, attempting to save his marriage and perhaps his family, welcomes the child into the family home, and treats the child as his own. He calls the child by endearments, and the child calls him “Daddy.” He supports the child financially and emotionally. Nevertheless, the marriage cannot be saved. For his efforts, the doctrine of paternity by estoppel imposes upon mother’s husband the obligation to support the child until he reaches adulthood. The message that is being sent to the husband who finds himself in such a predicament is clear — do not allow the child to call you “Daddy,” do not lavish any affection on the child, do not spend money on the child, and tell everyone you know that the child is not yours. How does such conduct help the child, or, for that matter, assist the husband and mother in attempting to save a troubled marriage? How does it benefit their additional children who barely understand what the controversy is about, and know only that another sibling has been added to their home?

I would favor an approach that would bring about the opposite result. I would encourage mother’s husband to bring the child into their home, and to provide emotional and financial stability for the child. I would encourage mother and her husband to attempt to save their marriage and to maintain them family. If, in the end, such efforts prove futile, absent the scenario where the husband wants to maintain the parental relationship notwithstanding the lack of biological parentage, I would require mother to turn to the biological father for child support.

A similar observation was made by Justice McCaffery in an opinion he authored while serving on Superior Court. In Vargo v. Schwartz, 940 A.2d 459 (Pa.Super.2007), the mother was having an affair while married to her husband, which resulted in the birth of two daughters. Admittedly unlike the instant case, the mother perpetrated fraud on her husband by misrepresenting that the girls were her husband’s biological children. When the husband ultimately discovered the true parentage of the children, the couple separated, and the husband disavowed his parentage by telling “everyone” that he was not the children’s biological father. Id. at 469. Admirably, however, the husband continued to support the mother and children economically and to provide care and nurturing to the children.

The mother in Vargo subsequently filed for support against the biological father (■i.e., the man with whom she had an affair). As in the instant case, the biological father asserted the doctrine of paternity by estoppel in defense, and attempted to use the husband’s kindness in caring for the children against him. The biological father alleged that he had no obligation to pay support because, inter alia, the husband, after learning that he was not the children’s biological father, had continued to nurture the young girls and maintain them on his health insurance policy to ensure that they would receive medical care. The trial court rejected the biological father’s contention, concluding that the mother was not estopped from seeking support from him.

Finding no abuse of discretion in the trial court’s ruling, Justice, then-Judge, McCaffery recognized cogently the “serious issues of fairness” that would arise where application of paternity by estoppel would “punish the party that sought to do the right thing and reward the party that perpetrated a fraud.” Vargo, 940 A.2d at 469. He stated, “[w]e do not read our law to require acts that place children at risk or in need of life’s basic necessities in order to reinforce the legal point that one *816is not financially responsible for those children.” Id. at 470.

Justice McCaffery’s thoughtful sentiments ring true here, notwithstanding that the mother revealed the true parentage of the child to her husband. Otherwise, as noted, the message we are sending to husbands is to abandon promptly all care, financial or otherwise, of a child born to a marriage once he discovers that he is not the biological father, or risk having to pay support for such child until he reaches majority. This in no way furthers a policy that is in the best interests of the child. This Court should encourage, rather than sanction, supportive conduct on the part of husbands who find themselves in the precarious situation as set forth herein.

In conclusion, in most cases, applying the doctrine of paternity by estoppel simply does not protect the child. Adults in today’s world will discover who the biological father is. When that happens, the child will generally be told as soon as he is old enough to understand. Thus, the law should encourage the mother’s husband to try to maintain the intact marriage and amalgamate the child by a different father into the family home. If this fails, the mother’s husband’s efforts should be recognized, and paternity by estoppel should be invoked if he desires to maintain the parental relationship. Otherwise, mother’s husband should not be punished for “doing the right thing.” In such circumstances, the mother should be required to turn to the biological father, who, being able to father the child, should also be required to support him.

Accordingly, I dissent from the Majority’s remand for further proceedings to determine whether the doctrine of paternity by estoppel applies, and would hold, as a matter of law, that Appellee may not invoke the doctrine as a defense to Appellant’s support action.

Justice McCAFFERY joins this Dissenting Opinion.

. I acknowledge that genetic testing has not confirmed that P.C.S. is the biological father of the child; however, the parties appear to agree that such is the case. Thus, I refer to him, for purposes of argument, as the biological father.