Michael Bertin, Obermayer Rebmann Maxwell & Hippel

A number of issues and doctrines in the area of family law appear to be debated more than others. One hotly debated doctrine is the paternity by estoppel doctrine related to child support. Under the doctrine, a person can be ordered to pay child support for a child that is not his biological child. Cases involving this doctrine have been heard by trial courts, the Pennsylvania Superior Court and the Pennsylvania Supreme Court. Because family law cases are fact sensitive, the application of the doctrine, by reviewing the appellate case law, is murky.

The most recent case to address the doctrine of paternity by estoppel is the Pennsylvania Superior Court case of SMC v. CAW, __ A.3d __, 2019 Pa. Super. 318 (October 22, 2019). In the SMC case, CAW, an adult male and SMC, an adult female, lived together with SMC's daughter for approximately 12 years (since the child was a baby). CAW, the appellant, held himself out as the child's father, supported the child financially and claimed the child as a dependent on many of his tax returns. The appellant and the child began living together when the child was approximately 1 year old. According to the opinion: "from April 2003 through January 2015, the appellee and the child lived together with the appellant in the appellant's home. The appellant held himself out to be the child's father and performed parental duties on the child's behalf, treating the child the same as his own biological daughters." The appellant also referred to the child as his daughter when introducing her to others and the child referred to him as her father or her "daddy."

When the appellant and the appellee's relationship ended, the appellee and the child left his house and the appellant stopped providing financial support for the child and stopped all contact with the child "except for a few visits." According to the opinion, thereafter, the "appellee obtained public assistance but has been unable to do anything financially for the child, such as celebrate Christmas." The child then began seeing a child psychologist who opined that the child viewed the appellant as her de facto emotional parent and had a positive and stable relationship while they resided together. The child was diagnosed as experiencing an "adjustment disorder with mixed anxiety and depression."

According to the opinion: "based on the child's psychologist's testimony, the court determined that the child suffered a serious adverse emotional impact. The court also concluded that it was in the child's best interest to apply the paternity by estoppel doctrine against the appellant and require the appellant to pay child support." A temporary child support order was entered thereafter and the appellant filed a timely de novo objection to the interim order, which the trial court dismissed. The appellant then filed a timely appeal. "The sole question in this appeal is whether the trial court abused its discretion in concluding that the appellant owed a duty of support under the paternity by estoppel doctrine."

As explained by the Pennsylvania Supreme Court in the case of Fish v. Behers: "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 … 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." The Pennsylvania Superior Court has stated: "Estoppel rests 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 had known all his life is not in fact his father."

Paternity by estoppel has been applied in many different instances. For example, it has been applied in cases where the parties were never married. It has been applied in instances where the mother was married to another man at the time of the child's birth and where the mother and the putative father resided together for six years but never married. Paternity by estoppel has also been applied where the putative father's relationship with the mother began years after the child's birth and where it was undisputed that the putative father was not the biological father.

The Pennsylvania Superior Court has also previously made clear that "the undisputed lack of biological relationship does not defeat the application of paternity by estoppel." In the Pennsylvania Supreme Court case of KEM v. PCS, the Supreme Court held that the paternity by estoppel doctrine continues to remain good law in Pennsylvania. According to the Supreme Court, the validity of the paternity by estoppel doctrine rests "only where it can be shown, on a developed record, that it is in the best interests of the involved child."

In the present case, as reflected in the opinion, the "appellant had a long-term in loco parentis relationship with the child that began when the child was an infant. The child and the appellant lived in the appellant's home for virtually the first 12 years of the child's life, during which time he held himself out as the child's father, provided most of the child's financial support, listed the child as a dependent on seven years of tax returns, and formed a close emotional bond with the child." After the parties separated, the child continued a need for financial support as well as emotional support from the appellant. Based on all these facts, the Superior Court concluded that the trial court did not abuse its discretion in holding that it was in the child's best interest for the appellant to be liable for child support based upon the paternity by estoppel doctrine.

This case is extremely important for the family law practitioner as well as the bench. This case reiterates that paternity by estoppel in child support cases is alive and kicking. The common thread throughout the paternity by estoppel cases that have been reported by the Pennsylvania Superior Court and Pennsylvania Supreme Court is that in the event a putative father, who knows he is not the child's father, holds himself out as the child's father and provides the emotional and financial support to the child, he cannot thereafter turn his back on that child and be let off the hook financially if the mother seeks support from him in the future. As is referenced in the opinion, the pendulum swings both ways. Therefore, if a mother seeks support from a putative father under the doctrine of paternity by estoppel, she cannot seek support from another individual thereafter and the door is then also opened for custody issues.

Michael E. Bertin is a partner at the law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-author of the book "Pennsylvania Child Custody Law, Practice, and Procedure." He is the chair of the family law section of the Pennsylvania Bar Association, a Fellow of the American Academy of Matrimonial Lawyers, former chair of the family law section of the Philadelphia Bar Association and the current co-chair of its custody committee. Contact him at 215-665-3280 or [email protected].