Can I Sue for Paternity Fraud in Pennsylvania?
Courts are divided on the issue of paternity fraud. It will be a matter of subjective determination for the court based on all the facts involved. A paternity action for the purpose of declaring the nonexistence of the presumed father and child relationship may be brought within a reasonable time after obtaining knowledge of relevant facts.
For further discussion, please see:
Please see the following PA caselaw:
N.C. v. M.H., 2007 PA Super 123
923 A.2d 499
N.C.,[fn1] Appellee v. M.H., Appellant.
No. 1472 WDA 2006.
Superior Court of Pennsylvania.
Argued February 27, 2007.
Filed May 1, 2007.
[fn1] Due to the sensitive nature of this case, we have
abbreviated the parties' names to protect their identity.
Appeal from the Court of Common Pleas, Allegheny County,
Civil Division, No. 00-008228, Mulligan, J.
Kristin A. Clingerman, Washington, for appellant.
Timothy J. Gricks, Pittsburgh, for appellee.
BEFORE: MUSMANNO, BOWES and JOHNSON, JJ.
OPINION BY BOWES, J.:
¶ 1 Appellant, M.H., appeals from the order entered on July
5, 2006, which estopped him from denying paternity of N.H.
After careful review, and for reasons set forth below, we reverse.
¶ 2 Appellant and N.C. ("Wife") were married on May 13,
1989. During the course of the parties' marriage, N.H., the
subject of this appeal, was born on December 31, 1992, and their
second child, E.H., was born on October 12, 1995. Wife filed for
divorce on February 24, 2000, and a divorce decree was entered
on October 20, 2000. Unbeknownst to Appellant, Wife had been
having an extramarital affair at the time N.H. was conceived;
without reason to suspect that N.H. was not his, Appellant
raised him as his own.
¶ 3 On May 19, 2005, Appellant filed a petition for special
relief to dismiss a child support obligation based upon a
comprehensive settlement agreement entered into on September 8,
2000, wherein Appellant acknowledged that he was the father of
both children born during his marriage and agreed to pay child
support for both children.[fn2] In his petition to dismiss,
Appellant alleged that N.H. was not his biological child, sought
termination of his support obligation, the return of all support
money paid on N.H.'s behalf, the payment of attorney's fees, and
a finding that the final property settlement was void ab
¶ 4 A hearing was held before hearing officer Patricia
Miller, wherein it was established that in the spring of 1992,
Wife became pregnant. Both parties, now physicians, were
participating in their residency programs and using two forms of
birth control, condoms and the rhythm method. During the
hearing, Wife reluctantly conceded that at the time of N.H.'s
conception, she was having unprotected sexual relations with
another physician, Dr. R.V. Notwithstanding her admission, Wife
testified that she never had any reason to believe that anyone
other than Appellant was the biological father of N.H. N.T.,
Support Hearing, 10/14/05, at 101-02. Appellant subpoenaed Dr.
R.V. who testified that Wife was keenly aware that he had
undergone surgical procedures to enhance his fertility in an
attempt to have more children with his spouse.[fn3] Id.
¶ 5 Dr. R.V. also testified that when Wife informed him of
her pregnancy in the spring of 1992, he told her he would not
leave his spouse and asked her whether she considered
terminating the pregnancy. Id. at 80-81. After that
discussion, the extramarital affair ended, and Wife informed
Appellant that she was pregnant. Appellant questioned how Wife
could become pregnant in light of their use of contraceptives,
and Wife's sole response was that their methods of birth control
were not one-hundred percent effective. Id. at 98.
¶ 6 Despite her knowledge that she had been having
unprotected sex with another man at the time of conception, Wife
testified before the hearing officer that she continued to
believe that Appellant was the father of N.H. On
cross-examination, Appellant's counsel questioned Wife's belief
by referencing the genetic testing results,[fn4] which proved
otherwise, and stated, "I have to ask you, you said it's always
been your belief that [Appellant] is the father of [N.H.]. Then
what did you believe when [Appellant] told you about the genetic
testing?" Id. at 109-10. This question was not
permitted by the hearing officer due to a motion in
limine which excluded the genetic test results.
¶ 7 Hearing Officer Miller assessed the credibility of the
witnesses, determined that Appellant was estopped from denying
paternity of N.H., and concluded that Wife did not make
misrepresentations to Appellant, fraudulent or otherwise,
regarding paternity. See Trial Court Opinion, at 1-2.
The trial court affirmed the hearing officer's decision, and
this timely appeal followed, wherein Appellant raised the
following issues for review:
1. Did the trial court err by finding that the
doctrine of paternity by estoppel was applicable where
there was no intact family and where the mother had
fraudulently concealed from the putative father that
she had been engaging in extramarital, unprotected sex
with another man at the time of the child's
2. Did the trial court err by refusing to permit
[Appellant] to produce evidence via cross-examination
of the mother regarding the results of private genetic
testing where the mother raised the issue as a defense
in direct testimony?
Appellant's brief at 4.
¶ 8 In matters involving paternity, we must first determine
if the presumption of paternity applies. In Brinkley v.
King, 549 Pa. 241, 250, 701 A.2d 176, 180 (1997), the
Supreme Court set forth the analysis required to determine the
paternity of a child conceived or born during marriage:
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
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.
¶ 9 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.
See Fish v. Behers, 559 Pa. 523, 741 A.2d 721, 723
(1999). Here, there is no intact family or marriage to preserve;
hence, the presumption of paternity is not applicable.[fn6]
Accordingly, we must determine whether the estoppel doctrine
applies, which depends upon the particular facts of each case.
Gebler v. Gatti, 895 A.2d 1 (Pa.Super.2006).
¶ 10 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." Jones v. Trojak, 535 Pa. 95,
634 A-2d 201, 206 (1993). Such estoppel "is based on the public
policy that children should be secure in knowing who their
parents are," Brinkley, supra at 180, and, as such, it
is designed to protect the best interests of minor children.
See Fish, supra at 724. 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." Brinkley, supra,
¶ 11 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.
¶ 12 "When allegations of fraud arise in a paternity
action, an estoppel analysis must proceed in a different manner
than it would without such averments." McConnell v.
Berkheimer, 781 A.2d 206, 211 (Pa.Super.2001). Evidence of
fraud "must be considered by the trial court in whether to apply
paternity by estoppel." Doran v. Doran, 820 A.2d 1279,
1284 (Pa.Super.2003) (quoting Sekol v. Delsantro,
763 A.2d 405, 410 (Pa.Super.2000)). 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. Sekol, supra at 411 n. 7.
¶ 13 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
Doran, supra, 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.
¶ 14 An appellate court will not disturb an order of the
trial court unless there has been an abuse of discretion.
See Doran, supra at 1282. Judicial discretion requires
action in conformity with law on facts and circumstances before
the trial court after hearing and consideration. Id.
Consequently, the court abuses its discretion if, in resolving
the issue for decision, there is insufficient evidence to
sustain the order.
¶ 15 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.
¶ 16 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.
¶ 17 Our decision in this case is not novel; in fact, we
addressed a nearly identical issue in our recent decision in
Doran, supra at 1283-84, 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.
¶ 18 Moreover, most recently, in Gebler, supra at
5, 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
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
Damn and Gebler equally applicable to the
present discussion and reverse the order of the court dismissing
¶ 19 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.
¶ 20 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.
¶ 21 Order reversed. Case remanded for further proceedings
consistent with this opinion. Jurisdiction relinquished.
[fn2] We note that no appeal was taken from the support order.
Ordinarily, this would render the matter res judicata
and determine paternity as a matter of law; however, for reasons
stated infra, neither res judicata nor
paternity by estoppel is applicable here. See Gebler v.
Gatti, 895 A.2d 1, 2 n. 1 (Pa.Super.2006); see also
Moody v. Moody, 822 A.2d 39 (Pa.Super.2003).
[fn3] Wife testified during direct examination that she thought
Dr. R.V. was sterile; however, Dr. R.V. offered contrary
testimony, and Wife admitted to knowledge of the surgical
procedure on cross-examination. N.T., Support Hearing, 10/14/05,
[fn4] Appellant performed the genetic testing in the summer of
2004 after he had doubts about N.H.'s paternity. Appellant
testified that he began to notice the dissimilarity of N.H.'s
features, mannerisms, body habitus, and attitude to his own and
others in his family. N.T., Support Hearing, 10/14/05, at 12-13.
Appellant confronted Wife with the test results and they
attempted unsuccessfully to settle the matter between them.
Id. at 27-29. Appellant then filed for special relief.
Since learning of N.H.'s paternity, Appellant has attempted to
disengage himself from the child's life, and Wife expedited his
detachment by telling N.H. that Appellant had no interest in
being his father. N.T., Support Hearing, 10/14/05, at 108-09.
[fn5] This question, as posited by Appellant, mistakenly
suggests that the doctrine of paternity by estoppel also applies
to intact marriages; however, the "intact marriage" analysis
only has relevance to the presumption of paternity doctrine, as
[fn6] Wife argues that the presumption of paternity applies
herein and cites Ruth F. v. Robert B.,
456 Pa.Super. 398, 690 A.2d 1171 (1997); however, as noted above, our Supreme
Court has affirmatively stated that the policy underlying the
presumption of paternity is the preservation of marriage, and it
is undisputed that there is no intact marriage here to