E.W. v. T.S.

• Decision Date: 31 January 2007
• Parties: E.W., Appellant v. T.S. and C.S., Appellee.
• Court: Pennsylvania Superior Court

916 A.2d 1197

E.W., Appellant v. T.S. and C.S., Appellee.

Superior Court of Pennsylvania.

Argued November 15, 2006.

Filed January 31, 2007.

Arlen Day, Pottsville, for appellant.

J. Robert Zane, Schuylkill Haven, for appellees.

BEFORE: TODD, BENDER and COLVILLE^*, JJ.

OPINION BY BENDER, J.:

¶ 1 E.W. appeals from the order entered on April 7, 2006, that granted T.S.'s and C.S.'s motion to dismiss E.W.'s complaint for custody and his petition to establish paternity of G. on the basis that E.W. lacked standing.¹ We affirm.

¶ 2 Preliminarily, we note that E.W. filed a complaint for custody of G. on December 2, 2005, against T.S., who as part of her answer to the complaint, raised as new matter, the allegation that E.W. had no standing to seek custody. C.S., T.S.'s husband, petitioned to intervene, contending that he is G.'s father. On January 5, 2006, E.W. filed a petition to establish paternity and for genetic testing, based upon his belief that he is G.'s natural father. T.S. filed a motion to dismiss E.W.'s petition, again asserting that E.W. had no standing. Subsequently, the parties stipulated that C.S. would be a party to the action, and that C.S. and T.S. "had been married at the time of conception and birth of [G.], and that [C.S.] claimed to be [G.'s] father." Trial Court Opinion (T.C.O.), 4/7/06, at 2.²

¶ 3 Two days of hearings were held in February of 2006 to determine whether E.W. had standing to proceed with the custody action, i.e., whether the presumption of paternity bars E.W. from seeking to establish that he is G.'s father. The trial court summarized the facts as follows:

The evidence elicited established that [C.S.] and [T.S.] were married on April 15, 2000, and that they are the natural parents of a three-year-old child, [D.], born November, 2002. [C.S.] is also named as father on the birth certificate of [G.], born March 25, 2004. [C.S. and T.S.], further, maintained and engaged in a sexual relationship within the period surrounding the date of conception of [G.].

However, [T.S.], who had begun a relationship with [E.W.] in May, 2003, likewise, was sexually intimate and had engaged in such relations with [E.W.] during the time-frame encompassing the conception of [G.]. As [C.S.] worked in Allentown-a distance from [T.S.'s and C.S.'s] home-and, at times, stayed overnight at his parents' home which was near to his work, and, as [E.W.] and [T.S.] worked for the same employer, the latter were able to conduct their affair rather openly and yet conceal it from [C.S.]. In fact, on some occasions, [E.W.] stayed over night at [T.S.'s and C.S.'s] home while [C.S.] was working in Allentown. The relationship between [T.S.] and [E.W.] finally ended in August, 2005. During the relevant period of time, [T.S. and C.S.] resided in Brockton, Schuylkill County, and [E.W.] resided in Pottsville, Schuylkill County.

[C.S.] remained unaware of the illicit relationship in which his wife had been engaging until August, 2005, after [T.S. and C.S.] had returned from a family vacation and [E.W.] had called [T.S.'s and C.S.'s] home and informed [C.S.] of the relationship. [E.W.] previously had threatened [T.S.] of his intention to do so when [T.S.] considered terminating the relationship with [E.W.]. Following the telephone call from [E.W.], [C.S.] asked his wife if he ([C.S.]) was the father of [G.]. [T.S.] responded that she believed he ([C.S.]) was [G.'s] father. Although [C.S.] subsequently investigated having a paternity test done via a process advertised on the internet, and did follow through with such testing, he threw away the papers he received indicating the testing results before analyzing them. At the time, [C.S.] did not desire to know the results as he simply insisted that he was [G.'s] father.

Following the August, 2005, telephone call, and, again, without [C.S.'s] knowledge, [T.S.] took [G.] to see [E.W.], generally once a week, until [E.W.] instituted the custody action. The visits then stopped until, again, without informing her husband, [T.S.] allowed [E.W.] to visit with [G.] on a day after Christmas, 2005. Nevertheless, the affair with [E.W.] never resumed after August, 2005.

Two to three months before [G.] was born, [T.S.] had also stopped seeing [E.W.]. However, a few months after [G.] was born, [T.S.] told [E.W.] that he was the father of [G.], resumed the illicit relationship and allowed [E.W.] to see [G.], generally by taking [G.] to visit [E.W.] at his parents' home where he lived. [T.S.] sent a Valentine's Day card to [E.W.] indicating that he was the father of [G.] and allowed [G.] to reference [E.W.] as "Daddy" and [E.W.'s] parents as "Nanny" and "Poppy." [T.S.] also led members of [E.W.'s] family and some of her and/or [E.W.'s] friends or co-workers to believe [E.W.] was [G.'s] biological father. Up until August, 2005, [T.S.] was not forthright to [E.W.'s] relatives about her marital status, letting them believe that she had been divorced and/or separated from her husband. [T.S.] frequently visited [E.W.'s] home with [G.] and allowed [E.W.] to spend time alone with [G.] — generally, on Mondays when [E.W.] was not working. [E.W.] and his family became attached to [G.] and, unquestionably, care for her.

However, [T.S.] similarly represented to her husband that he was the father of [G.], and until August, 2005, he had no reason to believe otherwise. [C.S.] was present in the hospital at [G.'s] birth, he was named on [G.'s] birth certificate as her father, was present for [G.'s] baptism, was named as [G.'s] father on her baptismal records, has covered [G.] on his health insurance at all times and has always supported [G.]. [C.S.] further insists that both [G.] and [D.] are his children. Throughout their marriage, [T.S. and C.S.] have filed income tax returns jointly and shared bank accounts, residences and mailing addresses, attended church and vacationed as a family. [T.S.] has always been the named beneficiary on [C.S.'s] life insurance policy and is named on the same automobile insurance plans as those of her husband. [C.S. and T.S.] never separated or filed for divorce and want to maintain their marriage. Although only learning many details of the extent of his wife's affair and deception during the hearings herein, [C.S.], nevertheless, believes his marriage is strong. He loves his wife and the children [D.] and [G.]. He supports his wife and believe[s] her inappropriate actions may have been the result of post-partum depression and threats from [E.W.].

T.C.O. at 2-5. The court, relying on Strauser v. Stahr, 556 Pa. 83, 726 A.2d 1052 (1999), determined that E.W. had not rebutted the presumption of paternity and that, therefore, T.S.'s motion to dismiss the custody complaint for lack of standing was properly granted as was the dismissal of E.W.'s petition to establish paternity and for genetic testing.

¶ 4 E.W. now appeals to this Court, setting forth the following issues for our review:

A. Whether the trial court erred in concluding that [T.S.'s and C.S.'s] marriage was intact, and that they never separated?

B. Whether the trial court erred in concluding that [E.W.] failed to rebut the presumption of paternity?

C. Whether the trial court erred in finding that the policy underlying the presumption of paternity supported denying [E.W.] standing?

D. Whether the trial court erred in prohibiting [E.W.] from pursuing questions regarding DNA testing [C.S.] voluntarily submitted to?

E. Whether the trial court erred in concluding that [E.W.] could not assert a claim of custody based on that he acted in loco-parentis to the child?

F. Whether the trial court erred in failing to address the issue of whether [T.S. and C.S.] should be estopped from denying [E.W.'s] paternity?

T.S.'s and C.S.'s brief at 2.

¶ 5 In order to respond to the issues raised, we are guided by the following:

The presumption that a child born during the marriage is a child of the husband is always the starting point in a contest involving the parentage of a child born during coverture. Moreover, the strength of the presumption that a child born to a married woman is a child of the marriage is grounded in the Commonwealth's interest in protecting the family unit. Although the presumption may be rebutted by clear and convincing evidence of husband's non-access, impotency, or sterility, the presumption is irrebuttable where mother, child, and husband live together as an intact family and husband assumes parental responsibility for the child.

B.S. and R.S. v. T.M., 782 A.2d 1031, 1034 (Pa.Super.2001) (citations omitted). Additionally, in Strauser, our Supreme Court discussed its prior plurality decision in Brinkley v. King, 549 Pa. 241, 701 A.2d 176 (1997), which noted that the fundamentals of presumptive paternity include the principle that "the presumption is irrebuttable when a third party seeks to assert his own paternity as against the husband in an intact marriage." Strauser, 726 A.2d at 1054. The Strauser court further discussed the Brinkley court's explanation that "[t]he public policy in support of the presumption ... was `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.' ... Thus, `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.'" Strauser, 726 A.2d at 1054-55 (citation omitted).

¶ 6 In addition to setting forth the above from the lead opinion in Brinkley, the Strauser court also reviewed the positions of the other Justices, which reflect criticism directed toward the presumption of paternity. However, the Strauser court recognized that in a situation where a marriage into which a child is born continues and, despite marital problems, the mother and her husband never separated and "have chosen to preserve their marriage and to raise as a family the ......