Opinion
J-A28003-18 No. 914 MDA 2018
12-17-2018
M.S. v. K.S. APPEAL OF: J.W.M.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered May 8, 2018
In the Court of Common Pleas of Lancaster County Civil Division at No(s): CI-17-09360 BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY LAZARUS, J.:
J.W.M. (Petitioner) appeals from the order, entered in the Court of Common Pleas of Lancaster County, denying his petition to intervene in the custody action between K.S. (Mother) and M.S. (Father). After our review, we affirm the order based on the opinion authored by the Honorable Jeffrey A. Conrad.
To summarize, Petitioner had a relationship with Mother approximately seven years ago; they dated, although not exclusively, between May and July of 2011. Mother gave birth to daughter (Child) in April of 2012. Mother told Petitioner at the time she found out she was pregnant that he could be Child's father, and she let him know when Child was born. In the six years since Child's birth, however, Petitioner has done nothing to support Child, emotionally or economically. Petitioner did not seek paternity testing.
When Child was two months old, Mother and Father began their relationship and they started living together when Child was six months old. Mother and Father married in September 2013, when Child was a toddler. Thereafter, Mother and Father had two children. At all times, Father has supported Child and treated her as his own.
On October 16, 2017, Father filed a complaint in divorce (Complaint) against Mother. In the Complaint, Father sought custody of Child and the parties' two biological children.
Petitioner, having reconnected with Mother in 2017 via social media, filed a petition to intervene and sought court-ordered paternity tests. The court scheduled a hearing for May 7, 2018. A few days prior to the scheduled hearing, Father's counsel filed a praecipe to withdraw the Complaint. Following the hearing, at which both parties and Petitioner testified, the court denied Petitioner's petition to intervene. See Order, 5/7/18. This appeal followed. Both the trial court and Petitioner have complied with Pa.R.A.P. 1925.
The order reads:
And now, this 7th day of May, 2018, following a hearing on the Petition to Intervene attended by Plaintiff [M.S.], Defendant [K.S.], and Potential Intervenor [J.W.M.], each with counsel, the Petition to Intervene is hereby DENIED.*
Order, 5/7/18.*In Buccieri v. Campagna , [889 A.2d 1220 (Pa. Super. 2005)], the Superior Court denied a putative father's request for genetic testing on the grounds that he was estopped from making a paternity claim because he was on notice that the child may be his yet he failed to pursue a claim for seven years. This case is factually similar in that [Petitioner] knew he was a potential father prior to or shortly after [Child's] birth but did nothing to pursue confirmation of paternity for nearly six years. [Petitioner] relies on the case of K.E.M. v. P.C.S., [38 A.3d 798 (Pa. 2012)], in which the Supreme Court directed that in "cases involving separation and divorce . . . the Uniform Act on Blood Tests to Determine Paternity is now to be applied on its terms insofar as it authorizes testing." Id. at 810-11. The Act provides that "[i]n any matter . . . in which paternity, parentage or identify of a child is a relevant fact, the court . . . upon motion of any party to the action . . . shall order the mother, child and alleged father to submit to blood tests." 23 Pa.C.S.A. § 5104(c). However, [Petitioner] is not a party to this action, and this case is distinguishable from K.E.M. because it is not one involving separation and divorce. While [Father] did file divorce proceedings against [Mother], those claims have been withdrawn and both [Mother and Father] testified credibly of their reconciliation. More importantly, [Petitioner] advanced no evidence that it is in [Child's] best interests that he be allowed to disrupt her relationship with [Father]. [Father] has been her father since she was six months old. He has cared for her financially, practically, and emotionally. He treats her the same as he does his biological children with [Mother]. He signed a support order with the Office of Domestic Relations during the separation and even attempted to have his name listed on her birth certificate - both events occurring prior to [Petitioner's] Petition to Intervene. In short, [Father] is the only father [Child] has ever known, and the court finds that it is not in her best interests to disrupt that relationship.
Petitioner raises the following claims on appeal:
1. Whether the court erred and abused its discretion in not permitting [Petitioner] to intervene in this custody action?Appellant's Brief, at 5-6.
2. Whether the trial court erred and abused its discretion in its application of the doctrine of paternity by estoppel to the facts and circumstances of this case?
3. Whether the trial court erred and abused its discretion in not considering the fraud on the part of Mother, and its effect on [Petitioner's] actions and the course of this matter?
4. Whether the court erred and abused its discretion in not ordering genetic testing pursuant to statute and case law under the facts and circumstances of this case?
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 [s]he has known all his life is not in fact h[er] father.Fish v. Behers , 741 A.2d 721, 724 (Pa. 1999) (citation omitted). The doctrine of paternity by estoppel is rooted in the best interests of the child. Vargo v. Schwartz , 940 A.2d 459 (Pa. Super. 2007).
After our review, we conclude the trial court properly applied the doctrine of paternity by estoppel and precluded application of the Uniform Act on Blood Tests to Determine Paternity. 23 Pa.C.S.A. § 5104. We agree with the trial court's conclusion that Buccieri is dispositive and that Petitioner's reliance on K.E.M. is misplaced. Under the circumstances of this case, Petitioner is estopped by his own past conduct from obtaining genetic tests to establish his paternity and/or assert his paternal rights. Buccieri , supra. Where the putative father has failed to exercise his parental claim, there is no reason to disturb the familial relationship that has developed among Mother, Father and Child. Id. "When balanced against societal concerns for constancy in [Child's] life, we see no reason to allow [Petitioner] to march into [Child's] life at this late date." Buccieri , 887 A.2d at 1227. See also B.K.B. v. J.G.K., 954 A.2d 630, 636 (Pa. Super. 2008) (concluding that alleged biological father's failure to pursue parental rights until child was nine years old estopped him from challenging mother's former husband's status as child's father); Moyer v. Gresh , 904 A.2d 958, 962 (Pa. Super. 2006) (where biological father voluntarily relinquished parental rights to another man during first nine years of child's life, biological father was estopped from asserting parental rights towards child); In re M.J.S., 903 A.2d 1, 10 (Pa. Super. 2006) (holding biological father estopped from asserting paternity where he knew another man had been named father, and despite having right to acknowledge paternity, he waited to assert paternity until three years after child had been adopted).
The Uniform Act on Blood Tests to Determine Paternity creates a statutory right to obtain blood testing to determine paternity; the right is not absolute and must be balanced against competing societal/family interests. See Miscovich v. Miscovich , 688 A.2d 726 (Pa. Super. 1997).
The legal fictions perpetuated through the years, including the proposition that genetic testing is irrelevant in certain paternity cases, retain their greatest force where, as here, there is an intact family seeking to defend itself against third-party intervention. The evidence of record here supports the trial court's findings; thus, we will not disturb them. See Vargo , supra at 462. Accordingly, we affirm the trial court's order and direct the parties to attach a copy of Judge Conrad's opinion in the event of further proceedings.
Order affirmed.
Judge Musmanno joins the Memorandum.
Judge Olson concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/17/2018
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