Brinkley v. King

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 présumption 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 and that her husband filed for divorce because he learned that she was pregnant by King.

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.

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.

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.

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

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.

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

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 identities as parents. 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 has known all his life is not in fact his father.

Thus, the essential legal analysis in these cases is twofold: first, one considers whether the presumption of paternity applies to a particular case. If it does, one then considers whether the presumption has been rebutted. Second, if the presumption has been rebutted or is inapplicable, one then questions whether estoppel applies. Estoppel may bar either a plaintiff from making the claim or a defendant from denying paternity. If the presumption has been rebutted or does not apply, and if the facts of the case include estoppel evidence, such evidence must be considered. If the trier of fact finds that one or both of the parties are estopped, no blood tests will be ordered.

It remains to consider how one knows whether the presumption applies in any given case. Traditionally, the answer to this question has been that the presumption applies if the child was conceived or born during the marriage. We now question the wisdom of this application of the presumption because the nature of male-female relationships appears to have changed dramatically since the presumption was created. There was a time when divorce was relatively uncommon and marriages tended to remain intact. Applying the presumption whenever the child was conceived or born during the marriage, therefore, tended to promote the policy behind the presumption: the preservation of marriages. Today, however, separation, divorce, and children born during marriage to third party fathers is relatively common, and it is considerably less apparent that application of the presumption to all cases in which the child was conceived or born during the marriage is fair. Accordingly, consistent with the ever-present guiding principle of our law, cesscmte ratione legis cessat et ipsa lex, we hold that the presumption of paternity applies in any case where the policies which underlie the presumption, stated above, would be advanced by its application, and in other cases, it does not apply.

In the case at bar, at the time of the complaint for support, there was no marriage. Lisa and George Brinkley had separated before the birth of the child and were divorced at the time of the complaint. The presumption of paternity, therefore, has no application to this case, for the purpose of the presumption, to protect the institution of marriage, cannot be fulfilled. It was error, therefore, to fail to consider the estoppel evidence, for estoppel evidence may be presented where the presumption does not apply.

The order of Superior Court is vacated and the case is remanded to the trial court for a hearing on the issue of estoppel.

ZAPPALA, J., files a concurring opinion.

NIGRO, J., files a concurring and dissenting opinion.

NEWMAN, J., files a concurring and dissenting opinion in which CASTILLE, J., joins.

. Although the trial court stated: "Conspicuous by its absence from the testimony is any indication that Mr. and Mrs. Brinkley had stopped having sexual relations at or about the time that Audrianna was conceived,” the trial court was mistaken:

Q. In February, in January, February and March of 1991 were you having sexual relations with your husband George Brinkley?

A. No, I was not.

Q. Were you having a sexual relationship with anyone at that time? A. Richard King.

N.T. at 15.

. In describing her former husband’s visits, Lisa stated:

Q. When he comes to see the children, he spends time with both of them, correct?

A. The first two years, he did not spend any time with her whatsoever. It is just sympathy against—he just takes her every now and then because she wants to go with him, but she knows who her dad is.

N.T. at 26.

. Because of our disposition of the case, we do not address Lisa's additional claim that it was error for the trial court to fail to consider an order entered in a separate proceeding which excluded Lisa’s former husband as the father of Audrianna.

. "No access” means simply that it was physically impossible for the presumptive father and the mother to have had sexual relations. For example, the parties lived in locations that are distant from each other and had no physical contact. Of course, it is possible that people living in New York and Australia may meet and have sexual contact, and it is for the trial court to decide whether sexual contact was physically possible in a given case.

. In Freedman v. McCandless we defined estoppel as follows:

Estoppel in paternity actions is merely the legal determination that because of a person’s conduct (e.g., holding out the child as his own, or supporting the child) that person, regardless of his true biological status, will not be permitted to deny parentage, nor will the child’s mother who has participated in this conduct be permitted to sue a third party for support, claiming that the third party is the true father. As Superior Court has observed, the doctrine of estoppel in paternity actions is aimed at "achieving fairness as between the parents by holding them, both mother and father, to their prior conduct regarding the paternity of the child.”

539 Pa. 584, 591-92, 654 A.2d 529, 532-33 (1995)(emphasis in original).

. Accord, John M. v. Paula T.:

[I]t is recognized that, 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 father of the child.... [W]here the principle [of estoppel] is operative, blood tests may well be irrelevant, for the law will not permit a person in these situations to challenge the status which he or she has previously accepted.

524 Pa. at 318, 571 A.2d at 1388, cited in Freedman v. McCandless, 539 Pa. at 591-92 n. 5, 654 A.2d at 533 n. 5 (1995).

. The presumption of paternity "is essential in any society in which the family is the fundamental unit.” O’Brien v. O’Brien, 390 Pa. 551, 555-56, 136 A.2d 451 (1957). In John M. v. Paula T., 524 Pa. at 322-23, 571 A.2d at 1380, the court stated that the "interests of the presumed father, the marital institution and the interests of this Commonwealth in the family unit,” are paramount.

. In holding that the presumption applies only where the policy upon which it is based would be advanced, we are suggesting a simplified way of regarding presumption cases. In Cairgle v. American R. and S.S. Corp., 366 Pa. 249, 77 A.2d 439 (1951), for example, the husband and wife were separated in 1932, but were never divorced. The wife moved in with another man in 1945 and the husband lived with another woman beginning in 1942, and both parties lived with these persons continuously until 1948, when Cairgle died. The wife gave birth to three minor children, one in 1939, one in 1942 and one in 1943. The children were given the name Owens; they lived with Owens and never with Cairgle; and Owens, not Cairgle, supported them. After the husband, Cairgle, died of silicosis in 1948, the wife sought to collect benefits under the Workmen's Compensation Act for her children. In order to be entitled to these benefits, she was required to prove that her children were "legitimate.'' 366 Pa. at 254-55, 77 A.2d at 442. The Cairgle court agreed that the presumption of paternity applied even to these facts:

If, as claimant testified, she had sexual intercourse with her husband during her pregnancy for her minor children when she was living in adultery with another man, the children would be considered, in law, the children of her husband and the presumption of legitimacy would be irrefutable.

Id. at 257, 77 A.2d at 443, citing Dennison v. Page, 29 Pa. 420 (1857). The court upheld the denial of benefits because it did not believe the wife's claim that she continued to have sexual intercourse with Cairgle after she was separated or that Cairgle sent support payments. In other words, the wife’s lack of credibility and her life with Owens rebutted the presumption. Our view, as expressed today, would be that when the parties separated, the presumption of paternity was inapplicable, and the mother would be estopped from claiming that Cairgle was the children's father based on her life with Owens.

. We decline to accept Superior Court’s suggestion that we expand the ways in which one can rebut the presumption of paternity. Superior Court's proposed additional factors to rebut the presumption, such as whether the putative father established a relationship with the child, are appropriate in an estoppel context, but not in a presumption of paternity context. The presumption of paternity continues to be rebutted, if at all, by evidence related to biology: there was no access or the presumptive father was incapable of procreation.