J-S87027-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.E.M. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

A.C.M.

Appellant No. 1118 MDA 2016

Appeal from the Order Entered June 1, 2016

In the Court of Common Pleas of Perry County

Domestic Relations at No(s): 11-00132

 PACSES #831112601

BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.: FILED JANUARY 31, 2017

Appellant, A.C.M. (Father), appeals from the order denying his petition 

for disestablishment of paternity or for a genetics test of the parties’ child, 

who was born in May of 2011. Father contends the trial court erred by not 

properly considering the best interests of the child and whether the child 

would suffer harm if genetic testing established he was not the father. We 

affirm.

Father and Appellee, S.E.M. (Mother), were married in 2009 and 

separated in January of 2011. He alleges that Mother concealed that she 

stopped taking birth control and that she was pregnant. Father claims he 

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* Retired Senior Judge assigned to the Superior Court.
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learned Mother was pregnant in February of 2011, three months before the 

child was born in May of 2011. Mother testified that Father was the 

biological father of their child and that she did not have any extramarital 

affairs. N.T. Hr’g, 6/1/16, at 12. Father’s name is listed as the child’s father 

on the child’s birth certificate. Id. at 8. The parties divorced in October of 

2012. Id. at 5-6. 

Father has seen the child only twice. He testified that every other 

time he attempted to visit, “something would come up either on my end or 

[Mother’s] end.” N.T. at 6. Mother testified that the child has seen pictures 

of Father but does not know his name. Id. at 13. 

Father has paid court-ordered child support since 2012. N.T. at 8. 

Until he filed the underlying motion in 2016, Father did not challenge his 

obligation to pay child support. He now concedes that he seeks to 

disestablish paternity so that he can avoid further child support obligations. 

Id. at 10. 

On March 10, 2016, Father filed the instant petition to establish 

paternity or for genetic testing, or both.1 Father testified that he wanted 

____________________________________________

1 That day, Father also filed a petition for modification of a prior child 

support order, claiming that because he was unemployed, he could not pay 

the court-ordered amount. Subsequently, Father found a new job. The 

court resolved the petition on July 28, 2016, by increasing Father’s childsupport payment.
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genetic testing to confirm the child is his. N.T. at 8. If the child is his, 

Father wants the child to know Father’s current wife and son. Id. at 7. 

After appointing a guardian ad litem for the child, the court held a 

hearing on June 1, 2016. On June 3, 2016, the court docketed an order 

denying the petition. The court held that, having accepted the child and 

treated the child as his own, Father was estopped from contesting paternity. 

Trial Ct. Op., 8/22/16, at 1-2 (unpaginated). With respect to the child’s best 

interest, the court stated:

[I]t would not be in the child’s best interest if [Father] is 

permitted to renounce his previously assumed parental 

duties and obligations. The child was conceived during the 

marriage and, although born after the parties had 

separated, [Father’s] name is on the child’s birth 

certificate. [Father] has been paying child support since 

2012, and has had ample time to raise the issue of 

paternity but failed to do so. Since 2012, [Mother] and the 

child have relied on the child support provided by Appellant 

which is needed for continuity and financial support. 

Although [Father] only had contact with the child twice 

when he was first born, [Father’s] lack of relationship with 

the child is due to [Father’s] lack of initiative. [Mother] has 

been attempting to foster a relationship by showing the 

child pictures of [Father]. This [c]ourt finds that [Father’s] 

primary reason for filing the petition to disestablish 

paternity is his primary concern of whether the child 

support he is providing is going to the child. For the above 

aforementioned reasons, this [c]ourt determined that a 

blood test would be detrimental to the child.

Id. at 3.

On July 1, 2016, Appellant filed a timely notice of appeal and a 

Pa.R.A.P. 1925(a)(2)(i) statement. Father raises the following issue:
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Did the trial court commit an error of law when [it] 

dismissed [Father’s] Petition for Disestablishment of 

Paternity and/or Genetic Tests, where there was no 

competent evidence of record regarding the best interest 

of the child and the harm that would befall the child if 

paternity was disestablished?

Father’s Brief at 3.

We evaluate the trial court’s order for an abuse of discretion. Vargo 

v. Schwartz, 940 A.2d 459, 462 (Pa. Super. 2007). The legal analysis has 

two stages:

First, one considers whether the presumption of paternity 

applies to the particular case. If it does, one then 

considers whether the presumption has been rebutted. 

Second, if the presumption has been rebutted or is 

inapplicable, one then questions whether estoppel applies.

Id. (citation and brackets omitted).

“[T]he presumption of paternity applies only where the underlying 

policy to preserve marriages would be advanced by application of the 

presumption. When there is no longer an intact family or a marriage to 

preserve, then the presumption of paternity is not applicable.” Vargo, 940 

A.2d at 463 (citations omitted). Instantly, Mother and Father are divorced; 

thus, there is no intact family unit or marriage to preserve. See id.

The trial court held that there was paternity by estoppel. In Vargo, 

this Court explained:

Estoppel in paternity actions is a legal determination based 

on the conduct of the mother and/or the putative father 

with regard to the child, e.g., holding out the child to the 

community as a product of their marriage and/or 

supporting the child. If the evidence is sufficient, estoppel 
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may bar either a putative father from denying paternity or 

a mother from succeeding in a claim of paternity against a 

third party. Estoppel rests on the principle that a person 

may not challenge his role as a parent once he has 

accepted it, even with contrary DNA and blood tests.

Id. at 464 (citations and quotation marks omitted).2 Thus, “[w]here the 

husband has accepted his wife’s child and held it out as his own over a 

period of time, he is estopped from denying paternity.” Commonwealth ex 

rel. Hall v. Hall, 257 A.2d 269, 271 (Pa. Super. 1969) (citation omitted). 

In Hall, the parents separated two years after their child was born. 

The father never challenged the child’s paternity for those two years. Hall, 

257 A.2d at 271. After the parties separated, the father executed a 

separation agreement acknowledging the child was his, paid child support, 

“and made extensive arrangements for visitation rights.” Id. Accordingly, 

this Court held that the father was not entitled to a blood test to establish 

the child’s paternity. Id. 

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2

“The presumption of paternity and the doctrine of estoppel, therefore, 

embody the two great fictions of the law of paternity: the presumption of 

paternity embodies the fiction that regardless of biology, the married people 

to whom the child was born are the parents; and the doctrine of estoppel 

embodies the fiction that, regardless of biology, in the absence of a 

marriage, the person who has cared for the child is the parent.” Brinkley v. 

King, 701 A.2d 176, 180 (Pa. 1997) (plurality). The concepts are “fictions” 

in that they may contradict biological parentage, but they nevertheless 

determine the fact of legal parentage.
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In K.E.M. v. P.C.S., 38 A.3d 798 (Pa. 2012), our Supreme Court 

explained the interplay between paternal estoppel and the best interests of 

the child at issue:

[S]ubject to modest qualification, we join the sentiment 

expressed in an opinion authored by the late, Honorable 

William F. Cercone, 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. Relying upon the representation 

of the parental relationship, a child naturally and 

normally extends his love and affection to the 

putative parent. The representation of parentage 

inevitably obscures the identity and whereabouts of 

the natural father, so that the child will be denied the 

love, affection and support of the natural father. As 

time wears on, the fiction of parentage reduces the 

likelihood that the child will ever have the 

opportunity of knowing or receiving the love of his 

natural father. While the law cannot prohibit the 

putative father from informing the child of their true 

relationship, it can prohibit him from employing the 

sanctions of the law to avoid the obligations which

their assumed relationship would otherwise impose.

Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa. 

Super. 307, 312, 369 A.2d 416, 419 (1976). 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.

K.E.M., 38 A.3d at 807-08 (footnote omitted).

In this case, for the five years between the child’s birth and the filing 

of Father’s petition, Father did not challenge his designation as “father” on 
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the child’s birth certificate. Similar to the father in Hall, Father has paid 

child support since 2012. Cf. Hall, 257 A.2d at 271. For the child’s entire 

five-year lifetime, Father made no challenge to his paternity at all. We 

therefore conclude that the trial court did not err in holding that Father is 

estopped from denying parentage. To paraphrase the Court in K.E.M., 

Father has not established any overriding equities that would permit him to 

now renounce his long-assumed duty of parentage and avoid paying child 

support. See K.E.M., 38 A.3d at 807-08. In this connection, the trial court 

did not err in holding that the child’s best interest did not favor 

disestablishment of paternity. Father’s argument to the contrary is little 

more than an insistence that he has not formed a bonded relationship with 

the child that calls for preservation. See Appellant’s Brief at 7-10. The 

policy of the law that is reflected in K.E.M., however, is that a child’s best 

interests call for protection of a child from disestablishment of his father’s 

paternity. No additional proof of the child’s best interest is needed. 

Accordingly, we discern no abuse of discretion by the trial court when 

it denied Father’s petition for disestablishment of paternity or for genetic 

testing.
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/31/2017