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February 24th, 2012 by Robert Franklin, Esq.
The Pennsylvania Supreme Court has taken one step forward and two steps back in paternity cases.  Read about it here (HTR News, 2/23/12).  In a case in which the husband of a married couple wasn’t the father of the child, the court said it was the biological father who had to pay child support when the man and his wife separated.

The ruling won’t apply to a lot of cases, because it depends on the unique facts of the case that likely won’t be repeated often.  The unnamed husband and wife had two children, but then the wife had a sexual liaison with another man, who is also unnamed.  She told her husband about her affair as well as the fact that she was pregnant and suspected the other man of being the father.  She also told the paramour.

The husband was not listed on the birth certificate, but raised the child as his own for about four years.  The paramour took little part in the child’s life, although he did give gifts, send birthday cards and the like.  Privately, the husband and wife had the child genetically tested and the results showed that the husband was not the child’s biological father.

Eventually, the husband and wife split up, but, as of trial time, neither had filed for divorce.  So the wife went to court claiming the biological father should pay child support.  The trial court disagreed, holding that the doctrine of paternity by estoppel barred the biological father from having to pay.  That doctrine basically holds that, if a man has played the part of father, he and everyone else are prohibited from asserting another man as father.  The reason for the doctrine is to make the child’s life as stable as possible and to avoid bringing an alternative father into the picture.

The Supreme Court overturned the ruling of the trial court saying that, inasmuch as there was little or no marriage left to save, it served no purpose to saddle the husband with child support for another man’s child.

As far as it goes, it’s a sensible decision, but unfortunately, it doesn’t go very far.  As I said, the ruling is pretty much confined to the unique facts of the case. 

And let’s be clear, this is not a case of paternity fraud.  Both men knew prior to the child’s birth that there was a question about who the father was and both men acted accordingly.  In due course, DNA testing proved that the husband wasn’t the father.  In short, unlike in cases of paternity fraud, both men had adequate knowledge of the facts to make informed decisions.

Unfortunately, the Pennsylvania Supreme Court ruled that, instead of legal fictions like paternity by estoppel, our old friend the “best interests of the child” must rule future such cases.  As we know, the BIOC is often little more than a stalking horse for placing all power over fathers’ rights in mothers’ hands.  And, if the court’s language in this case is any indication, it will continue to be in Pennsylvania.  The court quoted a ruling in a previous case as follows:

Absent any overriding equities in favor of the putative father, such  as  fraud,  the  law  cannot  permit  a  party to  renounce even an assumed duty of parentage when by doing so, the innocent  child  would  be  victimized.

It then adopted the reasoning of that court.

 The operative language of this passage centers on the best interests of the child, and we are of the firm belief — in terms of common law decision making — that this remains the proper, overarching litmus, at least in the wider range of cases.

It looks so sensible.  Indeed, the BIOC standard always does.  And the untutored might, for a minute at least, actually believe the honorable judges mean it.  But they don’t.  In fact what they say is nonsense.

We know that because we know what courts do and don’t do regarding divorce and child custody.  If the BIOC were truly the lodestone rock toward which the ship of state invariably sailed, we’d refuse to grant most divorces in which children are involved.  That’s because we know that divorce is almost never in the BIOC.  Oh, there would be a few, but for the most part, we’d tell the parents “If you want to have children, you’d better be in the marriage for the long haul, because the court’s won’t let you out of it.” 

In fact, we do the opposite.  For the most trivial of reasons, we let spouses divorce, which is perfectly alright if there aren’t children, but, tellingly, when it comes to divorce, the same standard applies to parents and non-parents.  If one spouse alleges and then recites in court that the couple can’t get along, then presto! the marriage bond is sundered forever and typically the child loses its father.

That alone should tell us all we need to know about how serious we really are about the BIOC.  But of course there’s more.  Once divorced, what do courts do to preserve the BIOC by keeping its father in its life?  Little or nothing.  How many times do we need to read that, in the United States, 35% of divorced fathers come to have no contact whatsoever with their children?  That’s mostly for two reasons.  The first is that the courts – the same ones intoning the mantra of the BIOC – consign fathers to every-other-weekend visitor with their children, with no real parental authority. 

Then, if that’s not enough of a blow to Dad’s ability to parent and his sense of himself as a parent, those same courts routinely refuse to enforce even the meager visitation they gave him in the first place.

Finally, as massive amounts of social science have been telling us for decades now, children suffer because of the loss of their fathers post-divorce.

Best interests of the child?  Who are they trying to kid?

And yet they do doggedly continue to say those words and base countless judicial decisions on them.  So it’s instructive to notice the uses to which those words are selectively put.  As we’ve seen, when it comes to custody and visitation, they’re either completely ignored or they’re deployed as a weapon to deprive fit, loving fathers of their parental rights.  But when it comes to child support or paternity fraud, all of a sudden fathers (whether biological or “psychological”) become vital to the BIOC.

Stated another way, when Mom wants to divorce and get sole custody of the kids, the BIOC pushes Dad aside; when she needs support or when she’s lied about paternity, the BIOC morphs into something completely different.  Then and only then does it notice the importance of fathers to children.

And so it will be in Pennsylvania for the foreseeable future.  Trial courts are now free to, as they do in other cases, take a shoot-from-the-hip approach to paternity.  Any dad the court feels will best serve the BIOC will be the dad chosen to pay support.  Now, what do you bet that that dad will often be the wealthier of the two?  After all, it takes money to support a child.  And what do you bet the Mom will agree that the BIOC requires the better-heeled father to be the one to pay?

Strange, isn’t it, how mothers’ wishes and the BIOC so often congrue?

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