Judges Opinions, — September 28, 2022 11:13 — 0 Comments

Scott R. Davis, v. Vicky F. Lutz-Patrick

Scott R. Davis, v. Vicky F. Lutz-Patrick

 

Civil Action-Family Law-Child Support-Establishment-Paternity-Petition for Genetic Testing-Genetic Testing Website Results as Basis-Paternity by Estoppel-Fraud-Best Interests of the Child

 

Scott R. Davis (“Father”), who has been known as the father to a twelve (12) year old child since the child’s birth, filed a Petition for Genetic Testing to Determine Paternity after an analysis performed by Ancestry.com indicated that the child’s profile did not match anyone in Father’s family and Vicky F. Lutz-Patrick (“Mother”) refused to consent to genetic testing of the child.

 

  1. Any paternity by estoppel analysis must orbit around what is in the best interests of the child.

 

  1. Discerning harm that would flow from the disestablishment of paternity is of paramount importance when analyzing application of paternity by estoppel.

 

  1. It is reversible error for a court to order genetic testing before analyzing the best interests of the child.

 

  1. A putative father must be given latitude to pursue any claim of fraud on the part of the mother, which broadens the scope of inquiry when paternity by estoppel is at issue.

 

  1. While the evidence establishes that an issue exists as to the identity of the biological father of the child, the evidence establishes that disestablishment of paternity would not be in the best interests of the child in light of the fact that the child has known no other person as father for twelve (12) years, Father played an active role in the child’s life during that time, child support paid by Father has been used for enriching activities for the child, the child developed close relationships with Father’s family members and Father is the only option to fill the role for the child.

 

L.C.C.C.P. No. 2020-50545, Opinion by Bradford H. Charles, Judge, February 18, 2022.

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

DOMESTIC RELATIONS SECTION

 

SCOTT R. DAVIS                             : 

          Plaintiff                                   :        NO. 2020-5-0545                                                                                                 :         

  1. :       

                                                          :

VICKY F. LUTZ-PATRICK              :

Defendant                               :

ORDER OF COURT

 

AND NOW, this 18th day of February, 2022, in accordance with the attached Opinion, the Order of this Court is as follows:

  1. The request of Petitioner Scott R. Davis for genetic testing to determine paternity of 12-year old A.D. is DENIED.
  2. Following ten (10) days but no later than twenty (20) days from today, the support payments that are being held in escrow by the Lebanon County Domestic Relations Office shall be released to Vicky Lutz-Patrick for use by her to benefit A.D.
  3. This Court considers this Order to be a final appealable order. Scott R. Davis is advised that he has thirty (30) days from today’s date in which to file an appeal of this decision with Pennsylvania’s Superior Court.

 

 

 

 

BY THE COURT:

 

 

 

BRADFORD H. CHARLES

BHC/pmd

 

cc:     Domestic Relations

Scott R. Davis// 5054 Irene Dr., Harrisburg PA 17112

Vicky Lutz-Patrick// 1308 Birch Road, Lebanon PA 17042

Heather S. Paterno, Esq.// 11 E. Chocolate Ave., Suite 300, Hershey PA  17033-0650

Andrew J. Morrow, Esq.// 522 S. Eighth Street, Lebanon PA  17042

David Wingert, Esq., MAMFT, 220 S. Railroad St., #1, Palmyra PA 17078

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

DOMESTIC RELATIONS SECTION

 

 

SCOTT R. DAVIS                             : 

          Plaintiff                                   :        NO. 2020-5-0545                                                                                                 :         

  1. :       

                                                          :

VICKY F. LUTZ-PATRICK              :

Defendant                               :

APPEARANCES

 

Heather L. Paterno, Esquire                            For Scott R. Davis

 

 

Andrew J. Morrow, Esquire                              For Vicky F. Lutz-Patrick

 

OPINION BY CHARLES, J., February 18, 2022

 

“There is no doubt that [A.D.] is a huge victim of this situation.”

  • Scott Davis, July 20, 2021

 

It is ironic that we have begun this Opinion with a quote from a man who has tried to elevate his own victimhood over that of a 12-year old child.  And make no mistake about it, Scott Davis (hereafter SCOTT) could in some ways be characterized as a victim of the scenario now before this Court.  But by far the primary victim of this case is the 12-year old girl who has known SCOTT for her entire life as “Dad”.  And this Court refuses to subordinate the victimization of a completely innocent child over the victimization of a grown adult who has, in some respects, acted questionably.  For this reason, and for the reasons we will articulate in more detail below, we will invoke the Doctrine of Paternity by Estoppel to deny SCOTT’s request for genetic testing to determine paternity.

 

  1. FACTS & PROCEDURAL HISTORY

Vicky F. Lutz-Patrick (hereafter VICKY) is the biological mother of A.D.  In early 2008, VICKY and SCOTT were engaged in an “on-again, off-again” relationship.  Both parties acknowledge that they engaged in sexual intercourse on February 3, 2008, which was Super Bowl Sunday.  VICKY denied that she had sex with anyone else during the two months before and the two months after Super Bowl Sunday.  SCOTT presented a witness who proclaimed that her brother and VICKY spent a great deal of time together and spoke about being engaged during February of 2008.

When VICKY discovered that she was pregnant, she notified SCOTT “because he is the father.”  SCOTT attended pre-natal ultrasounds and expressed some excitement about becoming a father.  At no time during pregnancy did VICKY relate that anyone else could possibly be the father of her unborn child.

On October 31, 2008, VICKY gave birth to an infant daughter.  SCOTT was notified and he was permitted to be present in the hospital at the time of birth.  Both SCOTT and VICKY acknowledge that a conversation occurred regarding paternity.  Although the details of the conversation are disputed, both SCOTT and VICKY agree that VICKY assured SCOTT that only he could be the father.  Based upon this representation, SCOTT signed an acknowledgement of paternity and the infant girl was given his last name.

Starting six (6) months following birth, SCOTT began enjoying alternating weekend periods of time with his daughter.  As A.D. grew, SCOTT attended doctor’s appointments, parent-teacher conferences, and athletic events involving A.D.  Almost every night, SCOTT telephoned or FaceTimed with A.D.  These communications inevitably ended with “I love you” being expressed by both SCOTT and A.D.

SCOTT is part of a close extended family.  SCOTT’s family embraced A.D. as one of their own.  During twelve years leading up to 2020, A.D. developed a close relationship with SCOTT’s parents, who were called “Mimi and PopPop”, SCOTT’s sister “Auntie M” and SCOTT’s grandfather, “Pappy Beers”.

In early 2020, SCOTT and his wife Kelly became involved with Ancestry.com.  They presented DNA to Ancestry.  Both SCOTT and Kelly professed surprise when the Ancestry.com analysis was received and A.D. was not mentioned as being part of their family tree.  According to SCOTT, “[A.D.’s] Ancestry profile did not match either me or anyone else in my family…I was shocked.”

Prior to April of 2020, SCOTT paid roughly $400 per month in voluntary child support.  He stopped paying in May of 2020.  SCOTT testified that his cessation of support was due to COVID-driven unemployment and not the Ancestry.com information.  In fact, SCOTT testified that he had a difficult time believing the Ancestry.com test results.  SCOTT’s custody rights with respect to A.D. were expanded to equal 50-50 periods of time between May and September of 2020.  During this period of time, SCOTT did not mention or question paternity.

With the advent of in-person school in September of 2020, VICKY again undertook primary physical custody of A.D. and SCOTT returned to an alternating weekend schedule.  However, SCOTT did not pay any child support.  Eventually, on November 16, 2020, VICKY filed a Complaint Seeking Child Support against SCOTT.

At some unknown time in late November of 2020, SCOTT confronted VICKY about the Ancestry.com paternity information.  Keith Lutz and Mary Quigley were present inside VICKY’s residence when the disclosure about the Ancestry.com information was accomplished.  VICKY testified that SCOTT said: “Had you not sued me for support, I would have taken the information [about paternity] with me to my grave.”  SCOTT denied making such a statement.  Keith Lutz corroborated VICKY’s version of the conversation.  Everyone agrees that VICKY continued to assert that SCOTT was the only man who could be the father of A.D.

Following the conversation between VICKY and SCOTT about paternity, the parties’ relationship understandably deteriorated.  SCOTT testified that VICKY withheld contact with A.D.  VICKY denies that she withheld contact.  SCOTT did acknowledge that after November 30, 2020, he declined to have telephone contact with A.D. As summarized by the subsequently-appointed GAL, “There were a few instances where brief communication occurred between [A.D.] and Plaintiff after November 30, 2020.  By and large, however, their telephone communications ceased.  Indeed, the nightly telephone or FaceTime contacts stopped altogether.” (GAL report at page 4).  In fact, the GAL documented that SCOTT would hand over his telephone to other relatives whenever A.D. called him following November 30, 2020.

According to A.D., her relationship with SCOTT underwent a “radical transformation” following November of 2020.  At some unknown time, SCOTT told A.D. that he may not be her biological father.  According to GAL Wingert, A.D. “understands that [SCOTT] is denying paternity for her based upon the Ancestry.com/Ancestry DNA results.”

SCOTT did enjoy physical custody of A.D. on Christmas of 2020.  SCOTT described the visit as “rough”.  In addition, SCOTT acknowledged that he requested custody rights with A.D. on New Year’s Eve/Day.  According to SCOTT, VICKY refused to give him custody of A.D. at any time during the New Year’s holiday.  Since Christmas of 2020, SCOTT has not exercised any physical custody rights with A.D.   However, SCOTT acknowledged that he sent an email on December 31, 2020 (Exhibit D-1) within which he asked for a resumption of alternating weekend periods of physical custody.  Those weekend visits were never re-initiated.

In February of 2021, SCOTT’s grandfather, Pappy Beers, passed away.  Because A.D. was especially close to Pappy Beers, she was invited to his funeral.  A.D. attended the funeral and sat with “Auntie M”.  According to witnesses, very little interaction occurred between SCOTT and A.D. during the funeral or the subsequent reception.  Following the funeral, no further contact occurred between A.D. and SCOTT.

SCOTT testified that he no longer considers himself to be A.D.’s father.  According to SCOTT, he did not really reach the conclusion that he was not A.D.’s father until January of 2021.  In addition to the Ancestry.com test results, SCOTT indicated that he received information in October that VICKY suffered from chlamydia when A.D. was born.  SCOTT indicated that he never contracted chlamydia and he attributed this STD to VICKY’s sexual contact with the true biological father of A.D.  In addition, SCOTT received information through Ancestry.com from a woman by the name of Gwyneth Hayes.  Ms. Hayes testified that VICKY and her brother were “close” to one another in February of 2008.  In fact, Gwyneth believed that her brother and VICKY may have been engaged at that period of time.  According to Ms. Hayes, her family has a history of suffering from a connective tissue disorder.  A.D. was described as having a problem with connective tissue in her knee.

SCOTT testified that he asked VICKY to take a DNA test.  He testified: “If Vicky believed I was the father, then do the DNA test and let’s be done with this.”  According to SCOTT, it was the confluence of all of the above information (the Ancestry test, the chlamydia, the connective tissue disease and VICKY’s refusal to consent to genetic testing) that caused him to reach the conclusion in January of 2021 that he was not A.D.’s biological father.  At that point, he cut off all contact with A.D.

VICKY acknowledged that she would not consent to genetic testing.  She explained that genetic testing would be “traumatic” for A.D., but she could not explain precisely how or why such trauma would flow from testing.

SCOTT raised a question about paternity with the Court for the first time on December 18, 2020.  The Court refused SCOTT’s invitation to order genetic testing based exclusively upon a written petition.[1]  Instead, on December 21, 2020, the Court scheduled a hearing for the purpose of determining whether genetic testing should be Court-ordered.

On March 1, 2021, SCOTT filed an Amended Request for Genetic Testing in which he raised an allegation of fraud against VICKY. Following the March 1 Amended Request for Genetic Testing, a Lebanon County Domestic Relations Master (DRM) issued a recommendation and report regarding child support.  Based upon the parties’ respective incomes, the DRM recommended that SCOTT pay $766.18 per month in child support.  This was roughly $350 more than what SCOTT had been paying prior to 2020.  On March 16, 2021, this jurist met with both parties and both counsel.  After a lengthy discussion, it became obvious that the parties were not in agreement as it related to the concept of genetic testing or the process by which it could be ordered.  Because of this, the Court ordered both parties to file briefs.

Because this jurist refused to simply order genetic testing based upon SCOTT’s request, SCOTT filed a Motion to Recuse this jurist on April 5, 2021.  This motion was denied on April 7, 2021.

Both VICKY and SCOTT filed briefs regarding the genetic testing issue.  On April 27, 2021, this Court issued a 16-page Opinion.  In that Opinion, we set forth our analysis of what we described as a “morass of Pennsylvania Paternity by Estoppel law.”  Because we concluded that Paternity by Estoppel requires a court to analyze the best interests of the child involved, we decided to appoint a Guardian Ad Litem (GAL) to represent the interests of A.D.

On April 27, 2021, we formally appointed David Wingert as GAL for A.D.  Mr. Wingert is a licensed attorney who left the legal profession in order to launch a career as a family counselor.  Mr. Wingert has served as GAL in numerous Lebanon County custody proceedings.  He was asked by this Court to undertake an analysis with respect to whether disestablishment of paternity would be in the interest of A.D.

GAL Wingert began his assignment by reaching out to both counsel and both parties.  As was his assigned role, Mr. Wingert attempted to focus upon A.D. and her interests.  This was difficult to accomplish with SCOTT, because he was myopically focused upon the issue of fraud and his own self-victimization.

GAL Wingert issued a formal report on June 28, 2021.  As instructed, his report focused upon how disestablishment of paternity would affect A.D.  (To his credit, the GAL did not accept SCOTT’s invitation to detour into the issue of fraud.)  In focusing upon his assignment, GAL Wingert met with the parties and with A.D.  He described A.D, as an intelligent and focused young lady.  He stated that A.D. was “confused” about how and why her relationship with “Dad” had changed so dramatically.  GAL Wingert described the emotion and tears shed by A.D. and he concluded that she has genuine love for SCOTT and is suffering emotional pain as a result of what occurred in 2021.  Ultimately, GAL Wingert concluded that disestablishment of paternity would not be in the interest of A.D.

Following GAL Wingert’s report, SCOTT filed objections and asked this Court to strike the report from the record.  This Court refused to grant SCOTT’s motion.

The Factual Hearing was commenced on July 20, 2021.  In accordance with our Opinion of April 27, 2021, we permitted SCOTT to articulate and present evidence regarding his theory of fraud.  Of necessity, the fraud-related testimony delved into VICKY’s sexual and romantic history.  In addition, we instructed the parties to focus upon the best interests of A.D. As it related to that topic, we directed that GAL Wingert provide sworn testimony in Court subject to cross-examination by both parties.

A Factual Hearing could not be completed on July 20, 2021.  After several COVID-related postponements, the factual testimony relevant to our decision was completed on January 31, 2022. We now issue this Opinion in support of our decision to deny SCOTT’s request for genetic testing.

 

  1. DISCUSSION

Throughout this proceeding, SCOTT has focused on the issue of fraud.  He effectively argues that we cannot and should not look at any other aspect of this dispute.  While VICKY has also addressed the fraud issue, her focus has been upon A.D. and what is best for her.  In analyzing the parties’ disparate perspectives, we will first set forth our analysis of Pennsylvania law.  We will then address SCOTT’s fraud claim.  Thereafter, we will undertake an analysis of A.D.’s best interests.  Finally, we will set forth our conclusion that effectively prioritizes A.D.’s interests over those of SCOTT.

  1. Legal Analysis

On April 27, 2021, we authored a 16-page Opinion that set forth our legal analysis regarding the issue of Paternity by Estoppel.  We will incorporate by reference everything we wrote about the law on April 27, 2021.  Some of our conclusions based upon our analysis were:

  • Any Paternity by Estoppel analysis must orbit around one primary center of gravity: What is in the best interest of the child?
  • It is the responsibility of a Trial Court in a Paternity by Estoppel setting to conduct a “searching inquiry of the father-child relationship and the child’s best interest.”
  • Discerning harm that would flow from disestablishment of paternity is of paramount importance when analyzing Paternity by Estoppel.
  • It is reversible error for a court to order genetic testing before analyzing the child’s best interest. Indeed, “Where Estoppel is applied, blood tests may be irrelevant.”
  • A putative father must be given latitude to pursue any claim of fraud. An allegation of fraud on the part of the mother does broaden the scope of inquiry in a Paternity by Estoppel setting.

 

Notwithstanding our extensive legal analysis on April 27, 2021, we afforded both SCOTT and VICKY with the opportunity to provide legal briefs following the Factual Hearings that were conducted in this case.  We specifically said to SCOTT: “Tell us why you think we were wrong in our April 27, 2021 analysis.”  SCOTT provided a brief as solicited.  Today, we will primarily address the arguments proffered by SCOTT in his brief.

The essence of SCOTT’s argument is that a best interest analysis cannot be undertaken once fraud is established.  In fact, SCOTT’s brief specifically proclaims: “This brief will not discuss the best interests of the child, as doing so would justify application of an inapplicable standard.” (page 4 of SCOTT’s brief).  According to SCOTT, “A finding of Estoppel via best interest or otherwise rewards the bad actor, and in the case of the support and maintenance of a child, sets poor and appealable legal precedent.” (Page 4 of SCOTT’s brief).  Although SCOTT did not set forth previously unknown legal precedent, the gravamen of his legal analysis was expressed as follows:

“Fraud has long been held an overriding equity in favor of a putative father in paternity actions.  See, M.L. v. J.G.M., 132 A.3dc1005, 1007 (Pa. Super 2016), citing K.E.M. v. P.C.S., 39 A.2d 798, 807 (Pa. Super. 2012) (quoting Commonwealth Ex Rel Gonzalez v. Andreas, 369 A.2d 416, 419 (Pa. Super. 1976).  When allegations of fraud arise in a paternity action, an Estoppel analysis must proceed in a different manner than it would without such averments.  N.C. at page 503.  Additionally, when an individual acknowledges paternity only as a result of fraud and outside the context of an intact family, the application of Estoppel does not serve the underlying policy interest.  Glover, at pg 713.”

(SCOTT’s brief at page 7).

 

In the view of this Court, SCOTT’s arguments fall squarely within the ambit of the Pennsylvania Supreme Court’s decision in K.E.M. v. P.C.S., 38 A.3d 798 (Pa. 2012).  In K.E.M., Pennsylvania’s highest court was asked to decide whether Estoppel remains viable even though genetic testing could be privately procured by the parties themselves.  The court in K.E.M. clearly held that Paternity by Estoppel remains a viable concept and that it should be “informed according to the actual best interest of the child.”  Id at page 809.  The Supreme Court in K.E.M. concluded its Opinion by stating:  “In summary, Paternity by Estoppel continues to pertain in Pennsylvania, but it will apply only where it can be shown, on a developed record, that it is in the best interest of the involved child.” Id at page 811.

It is certainly true that the Supreme Court in K.E.M. left a door ajar for the type of argument that SCOTT now proffers.  In K.E.M., the Court stated: “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.”  Id at page 808 (emphasis supplied).  Unfortunately, the Court in K.E.M. specifically “reserved” a decision concerning the “fraud scenario.” Id at footnote 7.  However, even when doing so, the Court made it clear that “even in such circumstances [where fraud is alleged], there are arguments to be made that the best interest of a child should remain the predominant consideration…The law should discourage adults from treating children they have parented as expendable…” Id at footnote 7, citing in part Theresa Glennon, Expendable Children: Defining Belonging a Broken World, 8 Duke J. Gender Law and Policy 269, 281-282 (2001).

We conclude based upon all of our research, that the best interest of the child paradigm can, should and must play a predominant role in our decision today.  By reaching this conclusion, we specifically reject SCOTT’s argument that fraud precludes a consideration of what is best for A.D.

The nature of our decision today directly implicates the issue that was “reserved” in K.E.M.  As this case proceeds to an inevitable appeal, it is our hope that our Appellate Courts will provide definitive precedential guidance that instructs trial courts what to do when Paternity by Estoppel finds itself at the intersection of fraud and the best interest of the child.  And, yes, we also hope that the Appellate Courts of this Commonwealth will continue to prioritize what is best for children over what may be perceived as fairness to a putative father.

 

  1. SCOTT’s Claims of Fraud

In the simplest of terms, SCOTT says to this Court: “Vicky lied about the identity of A.D.’s father.”  SCOTT believes that this lie should absolve him of any duty to pay child support or be involved in A.D.’s life.  Despite having spent 12 years as one of the two most important people in A.D.’s life, SCOTT now wishes to sever all ties with the girl who still knows him as “Dad”.

At this point in our analysis, we can and must turn our backs upon the inherent selfishness of SCOTT’s claim in order to examine whether evidence of fraud exists.  As we do this, we must begin by declaring that no direct evidence exists about VICKY’s purported fraud.  VICKY did not admit that she had sex with any other man during the period of conception.  No man other than SCOTT has admitted that he had sex with VICKY during the relevant time frame.  No eyewitness observed VICKY in a sexually intimate encounter during January or February of 2008.

SCOTT’s claim about fraud is predicated entirely upon circumstantial evidence.  That being said, the circumstantial evidence cannot be deemed to be insignificant.  In summary form, SCOTT has pointed out the following:

  • SCOTT was not involved in an exclusive romantic relationship with VICKY during the period of conception. In fact, the couple had sexual relations only once during the period of time when conception occurred.[2]
  • VICKY’s pregnancy records revealed that she suffered from chlamydia. Chlamydia is a sexually transmitted disease that never afflicted SCOTT.  SCOTT points to this fact as circumstantial evidence that VICKY had sex with somebody else who did infect her with chlamydia.
  • During the period of conception, VICKY had some sort of relationship with a man by the name of Roy Hayes. Hayes’ sister, Gwyneth, testified that she saw her brother and VICKY together in February of 2008, and they both described themselves as being “engaged” during that period of time.
  • The Hayes family suffers from a genetic tissue connectivity disorder. Evidence was presented that A.D. has a problem with the connective tissues of her knee.[3]
  • Although the Ancestry.com test results were not admitted as substantive evidence[4], SCOTT points to those tests as additional evidence that he is not A.D.’s father.

In addition to the above, SCOTT points out that VICKY has consistently refused to consent to genetic testing.  According to SCOTT, if in fact VICKY really believed that only SCOTT can be A.D.’s father, she could have simply and easily agreed to genetic testing and this entire issue would have been “put to rest”.

The most compelling question posed to VICKY during the Factual Hearing was: “If you are so sure that SCOTT is the father, why won’t you consent to genetic testing?”  VICKY could not compose an answer that made sense to this Court.  Her vague proclamation that a blood test “would be traumatic for my daughter” is simply not credible.  Modern genetic tests are simple, easy and almost entirely pain-free.  From a psychological standpoint, the biggest detriment that could be suffered by A.D. is the detriment that would accompany a test result that excludes SCOTT as a father.  Vicky knows both of the above realities.  Sadly, we can and must conclude that Vicky has chosen to resist genetic testing because she is unsure about the outcome of the test.

To be sure, SCOTT has also proffered arguments that have not resonated with this Court.  For example, SCOTT has declared that one reason he can no longer have a relationship with A.D. is because he can no longer trust her.  Analogizing somehow to his role as a basketball referee, SCOTT proclaimed that he has come to question A.D.’s credibility and that this somehow justifies his decision to cut off all contact.  As we listened to SCOTT testify, this jurist wrote in his notes: “B.S.”[5]  That pretty much sums up our impression of SCOTT’s effort to blame his own choices on a 12-year old girl.

SCOTT also argued that he never had a close relationship with A.D.  He characterized VICKY as a “dictator” regarding custody who allowed other men to act in a paternal role toward A.D.  In fact, SCOTT’s wife Kelly testified that it was “difficult to acknowledge” that A.D. and her husband were close.  Said Kelly: “I just didn’t see that.”  We could spend pages listing all of the evidence that refutes SCOTT’s current self-serving claim that he and A.D. were never close.  Suffice it to say that this jurist again responded to this evidence by writing “B.S.” in his notes.

Despite the easily dismissed nature of a few of SCOTT’s arguments, when we examine the totality of the circumstantial evidence presented by SCOTT, we are compelled to conclude that enough circumstantial evidence exists to create doubt in a reasonable person about biological paternity.  We cannot and will not declare SCOTT’s questions about paternity to be unreasonable or unsupported by all available evidence.  That being said, does SCOTT’s evidence rise to the level of creating fraud?

If fraud requires proof that VICKY possessed actual knowledge that SCOTT was not A.D.’s father, we could not conclude that fraud has been established.  On the other hand, if fraud can be established by proof that VICKY knew she had sex with another man and consciously withheld that information, then enough evidence exists to support an inference of fraud.  At this point, we are not prepared to issue a Finding of Fact that SCOTT either is or is not A.D.’s biological father.  What we can say is that SCOTT’s questions about paternity are not irrational.

Our decision today will not hinge upon our analysis of fraud.  Because of this, it is not necessary for us to define fraud as being triggered when a woman conceals knowledge that someone other than a man she designated could be the biological father.  Such a decision about whether and how fraud can be proven in a Paternity by Estoppel context can and should be left to our Appellate Courts.

What we can and will say today is that a legitimate question exists about who is A.D.’s biological father.  We stop short of declaring that this legitimate question necessarily establishes fraud.  More important, we stop miles short of declaring that an unanswered question about paternity is automatically contrary to the interests of the child who would be most affected by its answer.

  1. Best Interests of A.D.

In contrast to the record relating to fraud, the record in this case relative to the best interests of A.D. is crystal-clear.  In fact, we conclude beyond any doubt that A.D.’s future life would be better if SCOTT were to remain as her legal father.

In assessing the question of what is in A.D.’s best interest, we appointed an experienced GAL to evaluate that topic.  GAL David Wingert left no doubt about his opinion.  He stated definitively in writing and in Court that he believes that disestablishment of paternity would be devastating for A.D.  This Court agrees with GAL Wingert.

There are many reasons why disestablishment of paternity would not benefit A.D.  A few of these reasons include the following:

  • A.D. has known no other man as a father other than SCOTT.  For 12 years, A.D. took comfort in the fact that SCOTT told her almost every night: “I love you.”  And she reciprocated that love in many ways, including by initiating telephone and FaceTime conversations with “Dad” on almost a nightly basis.  Severing this type of relationship has already been traumatic for A.D. and prolonging the severance would be even more traumatic.
  • As a legal father, SCOTT is required to pay child support.  Currently, SCOTT is required to pay over $700 per month.  Vicky testified that she uses SCOTT’s child support money primarily to pay for all of A.D.’s varied enriching activities.  SCOTT responds by pointing out that Vicky earns $73,000 per year and has received help from her own parents.  Even if Vicky’s parental assistance continues – and there is no guarantee that it will – it is hard to conclude that A.D. will enjoy fun and enriching activities during her adolescence to exactly the same degree with or without an additional $700 per month in disposable household income.[6]
  • A.D. developed a robust relationship with members of SCOTT’s family.  She has always called her paternal grandparents “Mimi and PopPop”.  She has a particularly close relationship with her “Auntie M”.  Until his death, she adored her great-grandfather, who was known to the family as “Pappy Beers”.  These people deeply loved A.D., and she loved them back just as deeply.  Sadly, since SCOTT’s voluntary estrangement, A.D. has not had much contact with SCOTT’s family.[7]
  • We heard testimony that SCOTT played an active role in the life of A.D.  He attended her activities.  He attended her doctor’s appointments.  He attended parent-teacher conferences.  In almost every way, he served as a hands-on dad.  We can state without hesitation that, SCOTT played a positive role in the life of A.D.  The absence of that positive role leaves a tangible void in A.D.’s life.  Even simple tasks, such as transportation will become more difficult for A.D. if she has only one parent instead of two.
  • GAL David Wingert stated in his testimony: “There is no other option for A.D.”  That is perhaps an understatement.  At this point, it may not be possible to identify a true biological father if SCOTT’s paternity is disestablished.  VICKY has already testified under oath that she did not have relations with any other man, so a “starting point” for determining biological paternity may not even exist.  The individual that has been suggested by SCOTT as the “true” parent of A.D. is currently serving a sentence for creation of child pornography.  That individual has been prevented by a Court from having any contact with minors at any time or for any reason.  Even if there would be a way to confirm this man’s identity as A.D.’s biological parent, it may not be in A.D’s best interest to know that information and there is certainly no assurance that said individual will be willing or able to undertake a parental role.

If we were to rule in favor of SCOTT, we would effectively be declaring A.D. to be fatherless.  We accept as a reality of human history that this would not be in her best interest.

  • What happens if Vicky dies?  This is a question this jurist asked himself while listening to SCOTT’s testimony.  If Vicky were to tragically pass away at a time when SCOTT is still considered to be A.D.’s lawful parent, the law would force SCOTT to step up and provide the necessities of life for A.D.  If A.D. were to be fatherless, she could end up in the spartan environment of a publically funded group home surrounded by other parentless children whose lives have been mired by dysfunction of one sort or another.  Under this scenario, even a reluctant SCOTT would be a far better option for A.D.

In blunt and somewhat crass terms, being a father to a child requires more than donating sperm at the time of conception.[8]  To the extent that the word “father” can be used as a verb, it is an active and not a passive one.  Being a father requires involvement with a child’s life.  It requires compassion.  It requires commitment.  It requires payment of financial support.  It requires sacrifice.  It requires performing tangible daily activities.  It requires expressions of love.  It requires sublimating one’s own interests below the interests of the child.  In every respect, serving as a father is a state of being and not simply a biological imperative.

For 12 years, SCOTT acted as quintessential father in an active sense.  To his credit, SCOTT paid child support each and every month.  To his credit, SCOTT took an active interest in A.D.’s life.  To his credit, SCOTT inconvenienced himself to be a part of A.D.’s activities and growth development.  To his credit, SCOTT spoke to A.D. each and every evening and ended the conversations with “I love you.”  In every sense of the word, SCOTT was A.D.’s true father.

It is true that paternity is accompanied by responsibility.  Yet accompanying that responsibility is an intangible benefit that is priceless.  As youngsters, children shower parents with hero-worship adoration.  As adolescents, children grow to the point where they are a source of pride for parents.  Later in the circle of life, children repay caregiving responsibilities by taking care of their parents both physically and psychologically.  For almost every parent, the benefits of parent-child relationship outweigh any inconvenience caused by the responsibilities.  We have a hard time believing that this dynamic is or would be absent in the relationship between SCOTT and A.D.

SCOTT’s decision to unilaterally tell A.D. about the Ancestry.com results and then abruptly turn his back upon her is nearly incomprehensible to this Court.[9]  The dispute now before this Court did not have to be accompanied by psychologically-damaging transparency and complete estrangement.  Yet, estrangement and questioning of biological paternity has been inflicted upon A.D…. and we conclude that this occurred because SCOTT selfishly wanted to gain leverage in this litigation so that he could avoid paying child support.

Today, SCOTT argues that genetic testing will not adversely impact A.D. because he has already communicated to her that he is not her biological father and because he has already severed any relationship.  Effectively, SCOTT wishes us to adopt the following syllogism:

Whereas…

A father who questions paternity can claim he is not a biological parent.

A father questioning paternity can advise the child that he is not a biological parent. 

A father questioning paternity can voluntarily sever all ties with the child.

A father questioning paternity can proclaim to a Court that he will only reestablish a relationship with the child if a paternity test proves he is the father.

Ergo…

By voluntarily exercising the freedom to act as outlined above, a father questioning paternity should be able to effectively force a court to order genetic testing so that the child will have a chance to have a meaningful father going forward. 

There are humongous problems – both moral and legal – with the illogical syllogism that SCOTT has proposed.  For example, the premises of the syllogism are entirely in the control of SCOTT and can be implemented without any due process for A.D. or VICKY.  As to the conclusion of the syllogism, it focuses exclusively upon what SCOTT self-perceives to be in his own best interest.  Of necessity, the syllogism ignores the interests of the child.  Because of this, we reject it categorically.

There are some reasons to believe that SCOTT is conflicted about the cessation of his relationship with A.D. SCOTT expressed to VICKY and her father that he would have “taken the information to his grave” had it not been for child support.  In addition, SCOTT undertook equal 50-50 custody of A.D. during the summer of 2020 – after he was already aware of the Ancestry.com test results.  Even as late as the 2020 holiday season, SCOTT continued to request more time with A.D. – after he knew about the chlamydia and VICKY’s refusal to assent to genetic testing.   It is obvious to this Court that SCOTT feels a bond with A.D. just as she does with him.  And that provides us with hope that this sad state of affairs can be salvaged for A.D.

We cannot predict the future.  It is indeed possible that spousal pressure[10] and/or SCOTT’s own sense of self-victimization will obscure all other emotion, including any lingering feelings of love that SCOTT has for A.D.  It is also possible that resentment that SCOTT and Kelly will feel each month as child support is paid will build and be directed at A.D.  Certainly, it is highly doubtful that a working relationship built on trust will ever be reestablished between SCOTT and VICKY.  Based upon all of the above, it is indeed possible that SCOTT will never again be the same type of hands-on father to A.D. that he was prior to 2021.

On the other hand, SCOTT is smart enough to realize that A.D. is truly an innocent victim.  He is also smart enough to realize that the benefits that flow from a loving father-daughter relationship are two-way.  And, yes, we also conclude that SCOTT continues to have feelings of love for A.D.

If the adage “love conquers all” prevails, we have little doubt that A.D. could thrive during adolescence under the loving umbrella of VICKY and SCOTT.  However, and make no mistake about this, even if SCOTT’s resentment and selfishness are ascendant, it is still in the best interests of A.D. for paternity to remain as it currently is.  In the opinion of this Court, it is important for A.D. to know that the man who gave her his last name is her legal official parent.  Even if that man chooses not to be a hands-on father, he will still have the legal obligation to pay child support and serve as a “back-up plan” in the event that VICKY dies or becomes disabled.  These responsibilities of a legal father are not ones that we can dismiss or minimize as trite.

We conclude without hesitation that disestablishment of paternity would not be in the interests of A.D.  This conclusion is reached with the hope that SCOTT and A.D. will meaningfully reunite.  However, our conclusion about disestablishment of paternity will stand even if SCOTT stubbornly keeps his distance from A.D.

 

 

 

III.   CONCLUSION

Over the course of two days, we heard enough evidence to convince us that the request of SCOTT for genetic testing is rational.[11]  That being said, we also are convinced beyond any doubt whatsoever that disestablishment of SCOTT’s paternity would not be in the best interests of 12-year old A.D.

As it relates to genetic testing, this case presents a quintessential “no-win” scenario for A.D.  If genetic testing is ordered and if SCOTT is declared to be the biological father, somehow SCOTT is going to have to explain why he completely turned his back on his daughter for over one year.  And that will not be easy because A.D. is smart enough to know that SCOTT prioritized money over his love for her. If genetic testing is conducted that excludes SCOTT as the father, then A.D. will be rendered fatherless, with fewer financial resources, and fewer viable options should something happen to VICKY.  If the status quo of uncertainty[12] is permitted to continue, much about A.D.’s life will also be uncertain.  Will SCOTT re-engage, or will he choose to be a completely absentee father?  The answer to this question is completely unknowable at this point in time.

 

 

 

This no-win scenario for A.D. did not have to happen.  There are a multitude of ways SCOTT could have handled this situation that would have reflected more compassion toward A.D.[13]  One of the things that offended this Court is that SCOTT has chosen not to focus on what is best for an innocent 12-year old girl.  From the beginning of this litigation, SCOTT has focused on SCOTT.  His victimization.  His money.  His belief that fraud should end the inquiry of this Court.  To SCOTT, these are the only things that should matter.

Unlike SCOTT, this Court does not have the luxury of myopically-focused self-interest.  Instead, our goal will be to provide the best possible outcome for A.D. given her current “no-win” situation.  And we will render this decision with what we freely admit is very little regard for what SCOTT may perceive as fair.

We acknowledge that a decision in favor of SCOTT regarding genetic testing renders it possible for A.D. to have a somewhat normal father-daughter relationship.  However, we are well aware that genetic testing could also bring into play a worst-case scenario for A.D. – that she will be fatherless and possibly helpless if something happens to VICKY.  In the opinion of this Court, the harm flowing from the latter scenario outweighs any benefit that could be derived from the former.  Moreover, we must candidly acknowledge that it is more than merely possible that genetic testing would reveal that someone other than SCOTT is A.D.’s biological father.  The risk to A.D. of this occurring is simply not one that this Court is willing to accept.

For twelve years, A.D. knew SCOTT as “Dad”.  For twelve years, A.D. was able to count on SCOTT for support and guidance.  For twelve years, A.D. shared a deep and genuine love with SCOTT.  In many ways, SCOTT served as a rock upon which the foundation of A.D.’s life was built.  That rock should not be removed as easily as Lucy pulled away a football that Charlie Brown was trying to kick.  Regardless of how SCOTT came to be known as A.D.’s father, the reality exists that for twelve years, SCOTT was the only father that A.D. knew.  That. Should. Not. Change.

For today, we conclude beyond any doubt whatsoever that disestablishment of paternity would not be in A.D.’s interest.  Because of this conclusion, we will deny SCOTT’s request for genetic testing even though that testing could definitively determine whether SCOTT is A.D.’s biological father.[14]

 

[1] When SCOTT’s Motion was provided to the Court, we quickly perceived that the child in question was 12-years of age and that a Child Support dispute had recently been filed.  Given these facts that were apparent from the record, we were unwilling to issue an immediate order to direct that genetic testing be undertaken.

[2] As every human being knows, once is enough.  Still, it is less likely that one sexual encounter will result in conception that it would be for conception to occur following numerous encounters.

[3] VICKY attributes A.D.’s condition to her robust athletic endeavors.  SCOTT argues that the condition could have been genetically passed to her by Roy Hayes.

[4] Because the Ancestry.com testing was so important to the etiology of this dispute, we allowed SCOTT to present evidence of those results as proof of his state of mind.  However, we very clearly noted that without evidence from the laboratory personnel at Ancestry.com, the test results must be considered hearsay and cannot be substantively admitted as proof that SCOTT is not A.D.’s father.

[5] No reasonable adult can or should justify child abandonment by declaring the child to be unworthy of trust.  In fact, equating loss of trust with necessity to cut off contact is beyond disingenuous.

[6] Even if MOTHER puts SCOTT’s child support in a college fund or uses it for vacation, the end result will be the same.  A.D.’s life will be enhanced with the amount of money that SCOTT is required to contribute.

[7] It is almost as though SCOTT believes that cutting off contact between A.D. and people she knew as family her entire life would somehow help his case in Court.

[8] Indeed, we have encountered thousands of men in 22 years on the Bench who we would not call fathers even though they did donate their sperm at the time of conception.

[9] VICKY attempted to explain this phenomenon by blaming SCOTT’s current wife, Kelly.  We certainly understand how Kelly could resent SCOTT’s payment of child support and the time he devoted to A.D., sometimes at the expense of her own children with SCOTT.  While spousal pressure likely does explain some of what occurred, it is difficult for us to conclude that SCOTT’s decisions were driven entirely by Kelly.

[10] At least to some extent, we do conclude that some of SCOTT’s decisions have been driven and/or encouraged by his wife Kelly.

[11] Saying this should not connote that we agree with how SCOTT has chosen to treat A.D.

[12] We use the word “uncertainty” in a biological sense, not a legal one.

[13] In addition, there are ways that VICKY could have acted that would also have mitigated harm for A.D.  For example, when SCOTT reached out to request time with A.D. during December and January of last year, she could have assented to such contact.  VICKY could also have insisted upon a four-way meeting with A.D. in order to develop a compassionate plan during the pendency of the paternity dispute.  It seemed to us as though VICKY was content to allow complete estrangement rather than work toward facilitating continuing contact.

[14] All of the Pennsylvania Appellate decisions we have read dance around the issue of how Paternity by Estoppel can be applied at the intersection of fraud and the child’s best interests.  We have concluded based largely upon K.E.M. that the best interests paradigm must take on an ascendant role even when fraud exists.  As this case proceeds to an inevitable appeal, we urge our Appellate Courts to clearly spell out whether we are correct in our decision to prioritize the best interests of the child over the interests of a man who perceives that he has been falsely named as a father.

 

About the author

Ben has written 819 articles for Lebanon County Legal Journal

Search