Friday, May 04, 2007

By Rinaldo Del Gallo, III, Esq.*

* Mr. Del Gallo is a practicing family law attorney and is spokesperson of the Berkshire Fatherhood Coalition. He may be reached at 413-445-6789.

http://www.berkshirefatherhood.com

Man is married to woman. Woman lies to man while married about son. Man finds out he is not the father. Sounds like paternity fraud? It sure is.

A recent Superior Court of Pennsylvania decision, N.C. v. M.H., 2007 PA Super 123 (May 1, 2007) provides much guidance as to how to fight a paternity fraud case.

The law is applicable in most states. A lower court’s ruling was overturned. The court stated, “Due to the sensitive nature of this case, we have abbreviated the parties’ names to protect their identity.” Apparently, that did not stop the Pittsburgh Tribune Review from stating the couple’s names.

Click here to read the PittsburghLive.com article.

HERE ARE THE FIVE KEY THINGS TO BE SUCCESSFUL:

1. To win a paternity fraud case in most jurisdictions, you must show that you did not know that you were not the child’s father until it was too late.

2. You must show that you had no reason to suspect you were not the father, and that therefore you never had a paternity test until recently.

3. If you learned that you are not the father, you must have stopped holding yourself out to be the child’s father. This puts fathers that learn of their cheating wives in a real bad situation—should they continue to pretend they are the legitimate father, this could come back to haunt them during a marriage breakup. But if you do keep holding yourself out as the father after learning you are not the biological father, as Caesar, you have crossed the Rubicon and cannot turn back.

4. If you are divorced and paying child support when you learn that you are not the father, you must immediately report the fraud to the court and contest paternity and child support. If you, as they say in equity, “sit on your rights,” you will not be able to prosecute your claim.

5. Never agree to pay child support if you suspect you are the victim of paternity fraud and always ask for genetic testing.

The court stated the law as follows:

“The essential legal analysis in these cases is twofold:

(1) APPLICABILITY OF PRESUMPTION OF PATERNITY: “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.

(2) PATERNITY ESTOPPEL “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.”

The court ultimately ruled that (1) the presumption of paternity was no longer applicable since there was no longer an intact family and that (2) paternity estoppel did not apply because the father was being duped for numerous years.

PURPOSE OF PRESUMPTION OF PATERNITY

“The policy underlying the presumption of paternity is the preservation of marriage, and the presumption only applies in cases where that policy would be advanced by the application. Here, there is no intact family or marriage to preserve; hence, the presumption of paternity is not applicable.”

WHY THERE IS PATERNITY ESTOPPEL

“Under the doctrine of paternity by estoppel, an individual may be estopped from challenging paternity where that person has by his or her conduct accepted a given person as the father of the child. Such estoppel is based on the public policy that children should be secure in knowing who their parents are, and, as such, it is designed to protect the best interests of minor children. As the Supreme Court has explained, “[I]f 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.”

HUSBAND HAD NO REASON TO SUSPECT HE WAS NOT THE FATHER

“As noted, Appellant, having no reason to believe otherwise, held N.H. out as his own from N.H.’s birth in 1992 until genetic testing excluded him as the father in 2004. After the testing, Appellant testified that Wife accelerated his separation from N.H. Here, Appellant argues that the doctrine of estoppel is inapplicable because Wife’s fraudulent conduct was the basis for his treating N.H. as his own.

NORMAL PATERNITY ESSOPEL CHANGES WHEN THERE HAS BEEN FRAUD AS TO PATERNITY

“When allegations of fraud arise in a paternity action, an estoppel analysis must proceed in a different manner than it would without such averments. Evidence of fraud must be considered by the trial court in whether to apply paternity by estoppel. The test for fraud is: (1) misrepresentation, (2) a fraudulent utterance, (3) an intention by the maker that the recipient will thereby be induced to act, (4) justifiable reliance by the recipient upon the misrepresentation, and (5) damage to the recipient as a proximate result.

FAILURE TO MAKE REPEATED MISREPRESENTATION IS NOT ENOUGH TO BAR ESTOPPEL WHEN THERE IS FRAUD—THERE NEED ONLY BE MISREPRESENTATION

“In the instant case, the trial court adopted the hearing officer’s specific findings that since Wife did not make repeated representations to Appellant in response to repeated questions about paternity, there was no fraud. It is upon that basis that the hearing officer erroneously distinguished in Doran, supra, [Doran is a case where paternity fraud was found] from the case at bar. After careful review, we are constrained to conclude that Doran, as discussed infra, is wholly applicable here, and hence we reverse the order dismissing Appellant’s exceptions.

NOT DISCLOSING CHEATING WAS ENOUGH FOR A FINDING OF PATERNITY FRAUD

“An appellate court will not disturb an order of the trial court unless there has been an abuse of discretion. Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, there is insufficient evidence to sustain the order.

“Based upon our scope of review, we hold that the evidence was insufficient to support the trial court’s order. Wife, a medical doctor, conceded that at the time of conception, she had sexual relations with both Appellant and Dr. R.V. Further, Wife admitted that she never told Appellant about her meretricious relationship. Appellant, believing that their two forms of contraceptives were reliable, asked Wife how she became pregnant. Although it is apparent from Dr. R.V.’s testimony that Wife considered the possibility that he could have fathered her child, she failed to disclose to Appellant her sexual relationship with another man at the time of N.H.’s conception. Rather, the record reveals that Wife asserted to Appellant that the pregnancy could only have been caused by the failure of their birth control methods; correspondingly, her omission of materially relevant facts induced Appellant into acknowledging N.H. as his child.

PASSAGE OF DECADE DOES NOT MATTER

“Appellant operated for more than a decade under the false pretense that he was, indeed, N.H.’s father. It is undisputed that this subterfuge was a direct result of Wife’s misrepresentation by omission and intentional misstatements to Appellant. Furthermore, a review of the record infers that Appellant would not have held N.H. out as his own had it not been for Wife’s fraudulent conduct. We, therefore, find that Appellant made out a case of fraud and that the trial court abused its discretion. Appropriately, we hold that Appellant is not estopped from denying paternity of N.H. born during his marriage to Wife.

“Our decision in this case is not novel; in fact, we addressed a nearly identical issue in our recent decision in Doran, and concluded that we would not allow the application of estoppel to punish the party who sought to do what was righteous and reward the party who had perpetrated a fraud. In Doran, the appellant mother argued that either the presumption of paternity applied or the father was estopped to deny paternity because the child was born during the marriage, and the father held the child out as his own. Like Appellant here, the father was unaware that the mother had sexual relations with another man at the time of conception. Similarly, the father became suspicious, asked the mother whether he was the child’s father, and she assured him that the child was his. However, when the child was eleven, DNA testing established that the father was not the child’s biological father. This Court reasoned that although the father held the child out as his own from the child’s birth until learning the results of the DNA testing, he would not have done so had it not been for the mother’s fraudulent conduct. Thus, the father was not estopped from denying paternity, and we affirmed the dismissal of the child support order.

PUBLIC POLICY DOES NOT FAVOR PARTY BENEFITING FROM WRONG

“Moreover, most recently, in Gebler, we acknowledged that there is a “strong public policy against permitting a party who has acted in reliance upon a misrepresentation to suffer harm” and in that case, precluded the application of estoppel. In Gebler, the father held the child out as his own for eighteen months under the mother’s misrepresentation that he was the only one having sexual relations with her at the time of conception. Here, too, the doctrine of estoppel was held inapplicable as this Court concluded that the mother concealed that which should have been disclosed. See McConnell, supra; Sekol, supra; see also Moody v. Moody, 822 A.2d 39 (Pa.Super. 2003) (where the appellant was misled at the time he signed the agreed order of support, this Court refused to apply paternity by estoppel). Upon review, we find the rationale of Doran and Gebler equally applicable to the present discussion and reverse the order of the court dismissing Appellant’s exceptions.

“In light of our reversal, we need not address whether it was error for the hearing court to refuse evidence of genetic testing after Wife raised knowledge of paternity as a defense during her direct examination.

“Accordingly, the doctrine of estoppel is inapplicable and we reverse the order of the court entered on July 5, 2006, dismissing Appellant’s exceptions, and further, we direct the trial court to order the parties to undergo genetic testing.

The case was:

N.C. v. M.H., 2007 PA Super 123
N.C.,[fn1] Appellee v. M.H., Appellant.
No. 1472 WDA 2006.
Superior Court of Pennsylvania.
Filed: May 1, 2007.

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