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Barnard v. Anderson

Presumption of paternity is inappropriate in cases where the purpose of its application -- the preservation of a marriage -- has been thwarted by the married parties' divorce.

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� 1 Roy Barnard appeals from the order entered November 18, 1999 by the Honorable Robert L. Wolfe, Specially Presiding Judge of the McKean County Court of Common Pleas, which granted Curtis Anderson’s Motion for Compulsory Non-suit by determining that the “presumption of paternity” of Curtis Anderson applied, and holding that Appellant lacked legal capacity and standing to bring suit for the custody of Gabriel Q. Anderson, born August 15, 1998. Upon review of the record in this matter, we vacate the order of November 18, 1999 and remand for further proceedings consistent with this Opinion.

� 2 The relevant facts gleaned from the record are as follows: Kerri Anderson (now Kerri Barnard) and Curtis Anderson were married on August 11, 1990. Three children were born of this marriage. It is undisputed that Curtis Anderson underwent a vasectomy in 1994. In late 1997 Kerri Anderson became pregnant, and gave birth to Gabriel Anderson on August 15, 1998. Curtis Anderson testified that when he learned his wife was pregnant in December 1997, he initially believed he had not fathered Gabriel, but then came to believe it was possible that he had. (N.T., 11/18/99, at 39-40.)

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