Brinkley v. King

• Decision Date: 17 September 1997
• Citation: 701 A.2d 176,549 Pa. 241
• Parties: Lisa A. BRINKLEY, Appellant, v. Richard E. KING, Appellee.
• Court: Pennsylvania Supreme Court

Page 176

701 A.2d 176

549 Pa. 241

Lisa A. BRINKLEY, Appellant, v. Richard E. KING, Appellee.

Supreme Court of Pennsylvania.

Argued Sept. 19, 1996.

Decided Sept. 17, 1997.

[549 Pa. 243] Robert D. Clark, Wilmington, for Lisa A. Brinkley.

Phillip L. Clark, Jr., Ellwood City, for Richard E. King.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

FLAHERTY, Chief Justice.

One of the strongest presumptions in Pennsylvania law is that a child conceived or born in a marriage is a child of the marriage. In order to rebut the presumption it must be proved by clear and convincing evidence that at the time of conception, the husband either was not physically capable of procreation or had no access to the wife. The issue in this case is whether the presumption applies to the facts of this case.

Lisa Brinkley was married to and was living with George Brinkley in February 1991, when Lisa's daughter, Audrianna, was conceived. George moved out in July, 1991, four months before the child was born. Lisa stated that at the time Audrianna was conceived the former husband slept on the couch and she slept in a bedroom. Further, although her former husband was not physically incapable of procreation at the time Audrianna was conceived and although he was free to enter her bedroom, she and her husband did not have sexual relations. Lisa also testified that she was having sexual relations with Richard King during the period when Audrianna was conceived ¹ and that her husband Lisa testified that King came to the hospital when Audrianna was born and he visited the child on a weekly basis thereafter for approximately two years until Lisa filed a complaint for support. Although King and his wife also paid Lisa a monthly stipend for Audrianna's support, Lisa filed a complaint for support because the amount was insufficient. Finally, Lisa testified that King placed Audrianna on his medical insurance.

filed for divorce because he learned that she was pregnant by King.

Concerning her former husband, Lisa testified that after they were separated, the former husband came to visit her other child, whom the former husband acknowledged as his own, but he did not visit Audrianna. ²

On October 29, 1993, Lisa filed a complaint for support against Richard King, alleging that Audrianna was the child of King. King denied paternity and refused blood testing. Lisa then filed a motion for adjudication of paternity and King answered that Lisa was precluded from claiming that he was the father of Audrianna because she had failed to rebut the presumption that her former husband was the father. The trial court treated the motion for adjudication of paternity as a motion for blood tests and directed the parties to submit memoranda of law on their positions. The court thereafter concluded that Lisa had failed to rebut the presumption that her former husband was Audrianna's father, for she was unable to establish that the former husband had no access during the period of conception, and denied the motion for blood tests. Lisa then appealed to Superior Court.

Superior Court affirmed, holding that Lisa had not presented clear and convincing evidence that her former husband had no access to her during the period of conception. Nonetheless, two of three judges on the Superior Court panel, in a memorandum opinion, expressed reservations that considerations of impotence or lack of access should be the exclusive considerations sufficient to rebut the presumption of paternity. They suggested that this court consider whether additional factors, such as the identity of the father named on the child's birth certificate, whether the putative father has established a relationship with the child, whether the putative father provided support for the child, and whether the putative father provided medical insurance for the child should be also considered in rebuttal of the presumption.

We granted allocatur in order to review the way in which the presumption of paternity functions in Pennsylvania law. ³

In John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), a third party sued to establish his own paternity as against that of the presumptive father. The child was conceived before the mother married, but was born while the mother was married to and living with her husband. Husband and wife cared for the child and remained together at the time the lawsuit was filed. The third party sought to compel the presumptive father to submit to blood tests. Former Chief Justice Nix, concurring in John M., wrote:

[I]t should remain clear that a child born to a married couple will be presumed to be the issue of the husband. That presumption can be overcome only by proof of facts establishing non-access or impotency. Cairgle v. American Radiator and Standard * * *

Sanitary Corp., 366 Pa. 249, 77 A.2d 439 (1951). It continues to be one of the strongest presumptions within our law. Commonwealth ex rel. Leider v. Leider, 434 Pa. 293, 254 A.2d 306 (1969); Cairgle, supra; Commonwealth, ex rel. O'Brien v. O'Brien, 390 Pa. 551, 136 A.2d 451 (1958 [1957]).

[The Uniform Act on Blood Tests to Determine Paternity] cannot be used by a third party, seeking to rebut the presumption, to compel a presumed father to submit to a blood test. Whatever interests the putative father may claim, they pale in comparison to the overriding interests of the presumed father, the marital institution and the interests of this Commonwealth in the family unit. These interests are the cornerstone of the age-old presumption and remain protected by the Commonwealth today.

Thus a third party who stands outside the marital relationship should not be allowed, for any purpose, to challenge the husband's claim of parentage. I believe the presumption in this situation is irrebuttable....

524 Pa. at 322-23, 571 A.2d at 1388-89 (concurring opinion joined by four other members of the court).

In John M. a third party was attempting to defeat the paternity of the presumed father, but three years later, in Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993), we addressed a different fact situation. In Trojak the mother sued the third party for child support, claiming that he, rather than her husband, was the father. The child was born while she was married to and living with her husband. Trojak denied paternity and objected to the trial court's order for blood tests on the grounds that the mother had not rebutted the presumption that the child was the child of the marriage. We stated:

A court may order blood tests to determine paternity only when the presumption of paternity has been overcome. John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380, cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990). This Court has held that the presumption can be overcome by proof of facts establishing non-access or impotency. Cairgle v. American Radiator and Standard Sanitary Corp., 366 Pa. 249, 77 A.2d 439 (1951). However, under certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as the father of the child.

535 Pa. at 105, 634 A.2d at 206. In Trojak the mother established that she and her husband did not live together as an intact family; her husband had not accepted the child; the husband and wife had repudiated their marriage vows long ago; the husband never supported the child; and when the child was conceived, the husband was physically incapable of procreation.

These cases set forth the fundamentals of the law of presumptive paternity: generally, a child conceived or born during the marriage is presumed to be the child of the marriage; this presumption is one of the strongest presumptions of the law of Pennsylvania; and the presumption may be overcome by clear and convincing evidence either that the presumptive father had no access ⁴ to the mother or the presumptive father was physically incapable of procreation at the time of conception. However, the presumption is irrebuttable when a third party seeks to assert his own paternity as against the husband in an intact marriage. John M., 524 Pa. at 323, 571 A.2d at 1388-89.

The legal identification of a father, however, even in a case involving the presumption of paternity, may also involve the question of estoppel. One or both of the parties may be prevented from making a claim based on biological paternity because they have held themselves out or acquiesced in the holding under certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as the father of the child.... [T]he doctrine of estoppel will not apply when evidence establishes that the father failed to accept the child as his own by holding it out and/or supporting the child.... Only when the doctrine of estoppel does not apply will the mother be permitted to proceed with a paternity claim against a putative father with the aid of a blood test.

out of a particular person as the father. ⁵ In Trojak this court stated that:

Trojak, 535 Pa. at 105-06, 634 A.2d at 206. ⁶

The presumption of paternity and the doctrine of estoppel, therefore, embody the two great fictions of the law of paternity: the presumption of paternity embodies the fiction that regardless of biology, the married people to whom the child was born are the parents; and the doctrine of estoppel embodies the fiction that, regardless of biology, in the absence of a marriage, the person who has cared for the child is the parent.

The 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...