T.E.B. v. C.A.B.

• Decision Date: 29 July 2013
• Citation: 2013 PA Super 211,74 A.3d 170
• Parties: T.E.B., Appellant v. C.A.B. v. P.D.K., Jr.
• Court: Pennsylvania Superior Court

74 A.3d 170

2013 PA Super 211

T.E.B., Appellant

v.C.A.B.

v.P.D.K., Jr.

Superior Court of Pennsylvania.

Submitted March 18, 2013.

Filed July 29, 2013.

Sheryl A. Safina–Pfarr, Johnstown, for appellant.

Carrie A. Bruce, Ashville, for C.A.B., appellee.

Joel D. Peppetti and Thomas K. Hooper, Duncansville, for P.D.K., appellee.

BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.^*

OPINION BY STRASSBURGER, J.:

T.E.B. (Husband) appeals from the October 5, 2012 order which ordered that he have shared legal and physical custody of T.E.B., Jr. (Child) with C.A.B. (Mother) and P.D.K., Jr. (P.D.K.). Husband also appeals the December 2, 2009 order which allowed P.D.K. to intervene in the child custody matter. After careful review, we affirm.

The trial court summarized the underlying facts and procedural history as follows.

[Husband] and [Mother] married on August 29, 1992. [Husband] and Mother experienced marital difficulties in 2004. Around the same time, Mother began having a sexual relationship with a co-worker [P.D.K.].

In August of 2006, Mother became pregnant with the youngest of her four children. [Mother and Husband have three older daughters.] Mother immediately concluded that [P.D.K.] was the father of the [unborn] child. Mother knew [Husband] was not the father as he had undergone a vasectomy [which had not been reversed] and Mother and [Husband] were not intimate at the time of conception. Mother told [P.D.K.] that he was the child's father.

[Husband] was made aware that Mother was pregnant upon discovering that Mother was taking prenatal vitamins. When [Husband] confronted Mother, Mother advised [Husband] that she was pregnant with [P.D.K.]'s child. Mother testified that upon learning of the pregnancy, [Husband] coerced Mother into terminating contact with [P.D.K.,] stating to Mother that [Husband] “would do everything in his power, lie, whatever he had to do, to keep the girls and take the girls away from [Mother].”

[In May 2007], Mother gave birth to a son, [Child]. Two weeks after [Child's] birth [P.D.K.] ... accompanied Mother and [C]hild to a doctor's appointment. At that time [P.D.K.] informed Mother of his desire to be in [C]hild's life and his willingness to pursue legal recourse. Mother ... became upset and Mother and [P.D.K.] “parted ways.”

[P.D.K.] hired an attorney who requested Mother and [Husband] agree to DNA testing[;] the requests were denied. On December 8, 2007, [P.D.K.] filed a Complaint for Partial Custody [hereafter Custody Complaint] against Mother. In response, preliminary objections were filed [by Husband] alleging Mother was “shocked” to have received the Custody Complaint “as she has asserted since the birth of [Child] that her husband, [Husband], is the natural father of said child.” ⁴ On January 25, 2008, the preliminary objections were granted and the Custody Complaint was dismissed with prejudice. [P.D.K. did not pursue further legal action, fearing retaliation.]

⁴ It is clear, from Mother and [Husband]'s testimony, that the allegations in the Preliminary Objections were false, as both Mother and [Husband] knew [P.D.K.] was the biological father of [Child].

[On July 29, 2008, Husband initiated the instant action by filing a Complaint for Custody seeking shared custody of Child and the couple's three daughters, although both of the parties continued to reside in the marital residence.] On April 2, 2009, after unsuccessful attempts at reconciliation, Mother filed for divorce. Mother and [P.D.K.] resumed their relationship sometime in the spring of 2009. In June of 2009 Mother and [P.D.K.] agreed to have a DNA test performed.

... On August 13, 2009, the Petition to Intervene in Custody Matter [hereafter Petition to Intervene] was filed on behalf of [P.D.K.]. On September 2, 2009, [Husband]'s Preliminary Objections to Petition to Intervene [hereafter Preliminary Objections to Petition] were filed ... seeking dismissal on the basis that [Child] was born into an intact family and thus the presumption of paternity barred the Petition to Intervene. Additionally, it was argued that dismissal of the Petition to Intervene was proper as [P.D.K.]'s Custody Complaint had been dismissed with prejudice.

On November 17, 2009 and November 19, 2009, the [trial c]ourt held an evidentiary hearing on the Petition to Intervene. Subsequently, on December 2, 2009, the [trial c]ourt entered an Order dismissing the Preliminary Objections and granting the Petition to Intervene. On January 4, 2010, [Husband] filed a Notice of Appeal of the [trial c]ourt's Order. By Order of the Superior Court dated March 10, 2010, the appeal was quashed as interlocutory.

On February 17, 2012, a custody hearing took place before [a Hearing Officer] and the Hearing Officer Summary was filed with the [c]ourt on March 8, 2012. The summary and attached proposed order referred to Mother and [P.D.K.] collectively as “Defendant” as the couple had been engaged and living together at the time of the hearing. The summary proposed that the parties have shared legal and physical custody of [Child, with Mother and P.D.K. Jointly exercising physical custody of Child each Sunday afternoon through Wednesday afternoon, as well as the last Friday and Saturday of each month; and with Husband enjoying physical custody of Child at all other times]. On March 21, 2012, Mother filed Defendant's Exceptions to Master's Report. On October 5, 2012, the [trial court] accepted the Hearing Officer's recommendations and issued an Opinion denying the exceptions. On October 30, 2012, [Husband] filed a Notice of Appeal.

Trial Court Opinion, 2/6/2012, at 1–4 (citations and some footnotes and quotations omitted). Both Husband and the trial court complied with Pa.R.A.P.1925.

Husband states three questions for this Court's consideration.

1. Whether it is in the best interests of [Child] to apply paternity by estoppel to bar [P.D.K. and Mother], from seeking to establish that P.D.K. is the biological father of the youngest child of four children born during the intact marriage of [Husband and Mother], who subsequently separated and divorced, held Husband out as the father of [Child] for over two (2) years and where P.D.K. substantially delayed filing his Petition to Intervene for nearly two (2) years, although he had knowledge prior to [C]hild's birth that he was, in all likelihood, the biological father, yet had little or no contact with [C]hild?

2. Absent fraud, did the [t]rial [c]ourt err and/or abuse its discretion, in admitting into evidence [P.D.K.]'s DNA test results of paternity, over [Husband]'s objections based upon the doctrine of paternity by estoppel?

3. Whether the [t]rial [c]ourt erred and/or abused its discretion by awarding shared legal custody and physical custody rights to ... P.D.K.?

Husband's Brief at 2 (suggested answers omitted).

Although he states separate questions, all of Husband's arguments are based upon his claim that proper application of the doctrine of paternity by estoppel bars P.D.K. from asserting any parental claim to Child. Husband first argues that the doctrine precluded P.D.K. from intervening; and second, that it prohibited introduction of DNA test results. Husband's argument as to his third question is that the trial court erred and/or abused its discretion in including P.D.K. in the custody order “[b]ased upon the doctrine of paternity by estoppel....” Id. at 20. Therefore, we must only determine whether the trial court erred in its ruling as to the applicability of the doctrine in order to resolve all three of Husband's questions.¹

Paternity by estoppel “is merely the legal determination that because of a person's conduct ( e.g., holding the child out as his own or supporting the child), that person, regardless of his true biological status, will not be permitted to deny parentage....” B.K.B. v. J.G.K., 954 A.2d 630, 634 (Pa.Super.2008). “[T]he law will not permit a person in these situations to challenge the status that he or she has previously accepted.” Id. at 635 (citing John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380, 1386 (1990)). The doctrine of paternity by estoppel seeks to protect the interests of the child.

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.

Vargo, 940 A.2d at 464 (quoting Fish v. Behers, 559 Pa. 523, 741 A.2d 721, 724 (1999)). Indeed, our Supreme Court recently considered the continuing applicability of the doctrine and held that it is the interests of the child that are paramount: “paternity by estoppel continues to pertain in Pennsylvania, but it will apply only where it can be shown, on a developed record, that it is in the best interests of the involved child.” K.E.M. v. P.C.S., 614 Pa. 508, 38 A.3d 798, 810 (2012). The Court noted that if there is no difference in the supportive relationship available from the “psychological” and biological fathers, “we conclude that the responsibility for fatherhood should lie with the biological father.” Id.²

The doctrine has most usually been applied either to (1) preclude a man who had held a child out as his own from avoiding further support of the child after his relationship with the mother had ended, see, e.g. J.C. v. J.S., 826 A.2d 1 (Pa.Super.2003); or (2) preclude a woman who had held one man out as her child's father from seeking support from another man later on, see, e.g., Fish v. Behers, 559 Pa. 523, 741 A.2d 721 (1999). In other words, “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.” Bahl v. Lambert Farms, Inc., 572 Pa. 675, 819 A.2d 534, 541 (2003).

Yet, estoppel also can serve to preclude a biological father from asserting...