B.C. v. C.P. & D.B., Aplts

Opinion

[J-61-2023] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY JJ.

B.C., : No. 8 WAP 2023 : Appellee : Appeal from the Order of the : Superior Court entered January 6, : 2023, at No. 515 WDA 2022, v. : affirming the Order of the Court of : Common Pleas Westmoreland : County entered April 18, 2022, at C.P. AND D.B., : No. 1494 of 2021-D. : Appellants : SUBMITTED: August 25, 2023

OPINION

CHIEF JUSTICE TODD DECIDED: JANUARY 29, 2024 There is a strong presumption in Pennsylvania jurisprudence that a child conceived

or born in a marriage is a child of the marriage, and a party challenging the paternity of a

child born during a marriage must overcome that presumption. Due to societal changes

which have occurred since the presumption’s adoption, this Court has limited its

application to cases where its underlying policy — the preservation of marriages — is

furthered. This Court granted allowance of appeal to determine whether the lower courts

erred by relying primarily upon the marital couple’s multiple periods of separation prior to

the filing of the underlying paternity action in concluding that the presumption was

inapplicable, notwithstanding that the couple had reconciled by the time the paternity

action was filed. For the reasons set forth herein, we answer this inquiry in the affirmative,

and hold that a marital couple’s separation prior to the filing of the paternity action does not, per se, preclude application of the presumption of paternity. Accordingly, we reverse

the order of the Superior Court, and remand to the trial court with instructions.

At the outset, we observe that Appellee B.C., who filed the paternity action herein,

has not participated in this appeal,1 and has never challenged the continued viability of

the presumption of paternity, which, although entrenched in our jurisprudence for

centuries, has been the subject of considerable criticism in the modern age. Thus, we

emphasize that we are deciding this appeal as it is presented to us, and are determining

only whether the lower court’s application of the unchallenged presumption violates the

precedent of this Court. We conclude that it does. We do not address whether the

presumption of paternity, which again, as a general doctrine is unchallenged here, should

be reconsidered.

I. Background

The record establishes that Appellants C.P. (“Mother”) and D.B. (“Husband”) were

married on September 30, 2016. Mother met Appellee B.C. the following year when they

were both seeking treatment for addiction at the Greenbriar Treatment Center. Mother

and B.C. reconnected and began communicating through social media in Spring 2018.

In July of that year, Mother and Husband separated; Husband left the marital home and

Mother remained. B.C. visited Mother’s residence three times in October 2018, and

during at least one of those occasions they had unprotected sexual intercourse. Shortly

thereafter, at the end of October, Mother and Husband reconciled, and they also had

unprotected sex. On November 4, 2018, Husband moved back into the marital home,

and the couple continued their intimate relationship.

1 B.C. also did not participate in the appeal before the Superior Court.

[J-61-2023] - 2 Mother did not experience signs of pregnancy until March 2019, and was unable

to pinpoint when her child was conceived.2 Upon discovering that she was pregnant, she

told Husband that the child was his. After B.C. learned on social media that Mother was

pregnant, the two corresponded, and Mother initially advised B.C. that he was not the

father of her child. During Mother’s pregnancy, Husband accompanied Mother to prenatal

appointments and assumed the duties of an expectant father. While married to Husband,

Mother then gave birth to a son (“Child”) on June 18, 2019, and Husband was listed as

the father on Child’s birth certificate. However, after the birth, Mother brought Child to

visit B.C., and in August 2019, told B.C. that he was Child’s biological father.3

Subsequently, B.C. began seeing Child on a weekly basis, babysitting him while Mother

worked long shifts as a registered nurse.

In March or April 2020, when Child was approximately nine months old, Mother

and Husband separated for the second time. Mother then moved into B.C.’s home with

Child, and Mother and B.C. shared parental and financial duties relating to Child. During

this time, Mother told B.C.’s friends and family that B.C. was Child’s father. Nevertheless,

Mother took Child to see Husband on the weekends. B.C. did not object to Mother

allowing Husband to see Child, as he felt sympathy towards Husband. The relationship

between Mother and B.C. ended abruptly on August 13, 2020, when B.C. assaulted

Mother,4 after which Mother and Child returned to live in the marital home, and Mother

and Husband reconciled. The last time that B.C. had contact with Child was in November

2 Initially, Mother had not considered that she was pregnant, as she suffered from polycystic ovarian syndrome, and believed that conception would have been difficult. 3 As described infra, the trial court conducted a paternity hearing, during which Mother

testified that she did not recall telling B.C., or any other third party, that B.C. was Child’s father. The trial court expressly discredited this portion of Mother’s testimony. 4 On December 8, 2021, B.C. pled guilty to a charge of simple assault arising from the

incident with Mother. N.T., 4/11/2022, at 12.

[J-61-2023] - 3 2020, when Mother and Child visited B.C. in the rehabilitation center where he was

residing at the time.

Husband and Mother separated for a third and final time for a period of

approximately five weeks in December 2020 and January 2021, after Husband filed for

divorce and his counsel suggested that Mother move out of the marital home while a

custody order was crafted. Consequently, the trial court entered a custody order

awarding shared legal and physical custody of Child to Mother and Husband. B.C.

remained in the rehabilitation facility during the litigation of the custody matter and did not

seek to intervene. Husband and Mother once again reconciled, and chose not to proceed

with the divorce. Mother moved back into the marital home on January 13, 2021, and the

couple have remained together since that time.

On August 27, 2021, B.C. filed a complaint to establish paternity and for genetic

testing of Child. In response, Appellants jointly filed an answer and new matter, which

contained a motion to dismiss B.C.’s complaint with prejudice, contending that the

presumption of paternity applied to preserve their intact family unit. As explained infra,

the presumption that a child conceived or born during a marriage is a child of the marriage

may be rebutted by evidence establishing that either the husband did not have access to

his wife during the period of possible conception or that the husband was impotent or

sterile; where the marriage is intact, the presumption is irrebuttable. The trial court held

a hearing on April 11, 2022, at which B.C., Mother, and Husband testified to the

aforementioned events.

Additionally, Mother testified that she and Husband have been together since

January 2021, prior to the filing of the paternity action, and that she did not contemplate

any future separations because the marriage was working. N.T., 4/11/2022, at 42.

Viewing the circumstances retrospectively, Mother believed that the marital issues

[J-61-2023] - 4 resulted from depression and anxiety that she was experiencing at the times of the

separations. Mother further explained that Child has special needs and was diagnosed

with autism spectrum disorder level 3 and global delay disorder. Describing Husband as

a “wonderful parent” and “truly a great father,” Mother asserted that Child is Husband’s

number one priority, that Husband tends to Child in the middle of the night, and that

Husband takes Child to his doctor appointments and therapy sessions. Id. at 39. Mother

elaborated that Husband is Child’s “person,” as demonstrated by the fact that when Child

is inconsolable, he turns to Husband, who has “endless patience and kindness” for Child,

“loves [Child] so much,” and “is unbelievably bonded” to Child. Id. at 41-42. Mother

concluded that she and Husband are doing very well raising their son. Id. at 42.

Husband corroborated Mother’s testimony and detailed his extensive parental

duties. Id. at 56. Husband further asserted that he never believed that B.C. was Child’s

father, and never acquiesced to having B.C. act in a parental capacity. Id. at 57-58. When

asked about his relationship with Mother and their family unit, Husband acknowledged

the tumultuous periods, but expressed love for Mother and Child, confirming that he had

no concerns of a future separation with Mother, as he found that the trials and tribulations

they experienced together made their marriage stronger. Id. at 59-60. When questioned

whether the injection of a third party as an additional parental figure to Child would impact

his family unit, Husband responded, “[d]efinitely,” finding the proposition “utterly

preposterous.” Id. at 59.

Finally, B.C., appearing pro se at the hearing, testified that the time of Child’s

conception corresponded with the time of his sexual relationship with Mother. He

maintained that, after Mother informed him that he was Child’s father, he saw Child

regularly and shared parental duties, until Mother ended the relationship. B.C. asserted

that he did not seek to intervene in Child’s custody action because he was seeking

[J-61-2023] - 5 inpatient care at a rehabilitation facility when the matter was litigated. B.C. did not attempt

to refute Appellants’ contention that their marriage was, at that time, intact. Lastly, B.C.

argued that the court should grant his request for genetic testing because he believes he

is Child’s father, he wants to take responsibility for his son, and he wants to save Child

from suffering trauma later in life if he discovers that his true parentage is different from

what he had been led to believe.

II. Lower Court Decisions

By order dated April 14, 2022, the trial court denied Appellants’ motion to dismiss

the paternity action, and directed all parties and Child to appear at the domestic relations

office for paternity testing on May 3, 2022. Appellants filed an appeal to the Superior

Court, and the trial court filed its Pa.R.A.P. 1925(a) opinion on May 27, 2022.5 Initially,

the trial court observed that, when examining paternity, the court considers whether the

presumption of paternity applies to the particular case and, if so, whether the presumption

has been rebutted; if the presumption has been rebutted or is inapplicable, the court then

queries whether estoppel applies.

Recognizing that the presumption applies “only where the underlying policy of the

presumption, i.e., to preserve marriages, would be advanced by its application,” Trial

Court Opinion, 5/27/2022, at 5 (unpaginated) (quoting Brinkley v. King, 701 A.2d 176, 179

(Pa. 1997) (plurality)),6 the trial court examined Superior Court case law holding that the

presumption is inapplicable where the marriage in question does not require protection.

Id. at 6-7 (discussing B.S. v. T.M., 782 A.2d 1031, 1037 (Pa. Super. 2001) (presumption

5 Due to this Court’s concern for the best interests of the child, court orders directing blood

tests to determine paternity are immediately appealable, even though they are interlocutory. Jones v. Trojak, 634 A.2d 201, 204 (Pa. 1993). 6 As explained infra, although Brinkley was a plurality decision, four Justices agreed with

the primary holding.

[J-61-2023] - 6 of paternity is inapplicable where the marriage does not need protection from the effects

of disputed paternity because the marital couple had fully reconciled and any damage to

the marriage was “water under the bridge”); J.L. v. A.L., 205 A.3d 347 (Pa. Super. 2019)

(presumption of paternity is inapplicable where the mother and husband did not have an

intact marriage when the child was conceived or born, and the husband’s testimony

established that the marriage did not require the protection that the presumption affords)).

The trial court emphasized that Husband is aware that Mother had been intimate

with both Husband and B.C. in October 2018, the period during which Child was

purportedly conceived, and that she resided with B.C. for at least four months in 2020

after Child was born, yet Husband desires to remain in the marriage, regardless of the

outcome of the genetic testing. Relying upon Appellants’ statements that their marital

strife has made their union stronger, and that the couple has no plans of ever separating,

the trial court reasoned that, as in B.S. and J.L., Mother’s relationship with B.C. is “water

under the bridge” and Mother and Husband have moved on from their past marital

difficulties. Id. at 7 (citing B.S., 782 A.2d at 1037). Reasoning that the marriage does not

require the protection that the paternity presumption affords, the trial court found that

genetic testing “would merely confirm or disprove what the parties have likely considered

to be a very real possibility,” and that the purpose underlying the presumption will not be

furthered by applying the presumption because Appellants “testified that the court’s

determination will not affect the marriage.” Id. at 8.

Thus, the court concluded that the presumption was inapplicable, and so reasoned

that it need not determine whether the presumption was rebuttable or irrebuttable.

Nevertheless, employing similar reasoning as espoused in B.S. and J.L., the trial court

alternatively found that the evidence failed to demonstrate Appellants “remained in an

intact marriage” – a finding which would have rendered the presumption irrebuttable –

[J-61-2023] - 7 due to the marital couple’s three prior separations, once during the period that child was

purportedly conceived, and again after Child was born, when Mother moved in with B.C.

for at least four months and held him out to be Child’s father, while simultaneously

claiming that Child belonged to Husband. Id. at 9-10.

Finally, the trial court held that B.C. was not estopped from asserting paternity, as

the policies underlying estoppel were not implicated, considering that B.C. was asserting

parentage and not denying it; B.C. never accepted that Husband was Child’s father; and

B.C. explained that he would have filed the paternity action sooner had he not been in a

rehabilitation facility. Thus, the court denied Appellants’ motion to dismiss and ordered

paternity testing.

In a unanimous, unpublished memorandum opinion, the Superior Court affirmed.

B.C. v. C.P., 515 WDA 2022 (Pa. Super. filed Jan. 6, 2023). Like the trial court, the

Superior Court began by observing that, when examining paternity, the court considers

whether the presumption of paternity applies to the facts presented and, if so, whether

the presumption has been rebutted; if the presumption has been rebutted or is

inapplicable, the court examines whether estoppel applies.

Addressing Appellants’ contention that the trial court erred in failing to apply the

presumption of paternity to their intact marriage, the court looked to the purpose of the

presumption, which it found to be the preservation of marriages, and recognized that the

presumption only applies where that policy would be advanced by the application. The

court further acknowledged that, while “the presumption may be rebutted by clear and

convincing evidence of a husband’s non-access, impotency, or sterility, the presumption

is irrebuttable where the mother, the child, and the husband live together as an intact

family and husband assumes parental responsibility for the child.” B.C., slip op. at 7

(quoting B.S., 728 A.2d at 1034).

[J-61-2023] - 8 The Superior Court reasoned that, when determining whether the policy of

preserving marriages is advanced by application of the paternity presumption, courts

have looked to whether the marital couple stayed together or separated. It observed that,

in Strauser v. Stahr, 726 A.2d 1052 (Pa. 1999), upon which Appellants relied, there were

factual similarities with the instant case, such as the mother therein had sexual relations

with both prospective fathers around the time of conception, the mother had held out the

non-spouse as the father of the child, and the husband displayed varying levels of

acquiescence relating to the relationship the non-spouse shared with the mother and the

child. Nevertheless, the court found one critical difference between the cases — the

marital couple in Strauser never separated; thus, the marriage remained intact and

warranted the presumption of paternity to protect the “basic and foundational unit of the

family.” B.C., slip op. at 8 (citing Strauser, 726 A.2d at 1055). This case is

distinguishable, the court held, because Appellants separated on three occasions,

including during the period when Child was conceived, albeit, like the couple in Strauser,

Appellants reconciled and were together at the time of the paternity litigation and

thereafter.

The court found the instant case more akin to B.S., supra, where the presumption

was held not to apply to a couple whose marriage was intact at the time of the litigation

because there was no real dispute that the third party was the biological father; the third

party’s custody petition would not harm the marriage because the couple had reconciled

and endured; and application of the presumption could have a “deleterious effect” on the

family if the child later discovered that her true parentage was not what she was led to

believe. Id. at 10 (citing B.S., 782 A.2d at 1036-37). Appreciating that paternity cases

each involve unique facts, the court relied upon B.S.’s holding that the presumption was

inapplicable there because the marital couple, while separated, “voluntarily gave up the

[J-61-2023] - 9 benefit of the presumption for approximately one year after which they claimed the

benefits of its existence for the first time.” Id. (citing B.S., 782 A.2d at 1037).

Similar to the ruling in B.S., the court noted its prior holding in J.L., supra, wherein

the marital couple separated, with the mother moving into her own apartment, but had

purportedly reconciled by the time the paternity action was litigated, and the court held

that the presumption did not apply because the mother sought to invoke the presumption

only to defeat the third party’s paternity action. The court explained that, as in B.S., the

court in J.L. held that the couple had voluntarily given up the presumption during the

separation. By contrast, the court opined that, in E.W. v. T.S., 916 A.2d 1197 (Pa. Super.

2007), the presumption of paternity was applied because, like in Strauser, the parties

never separated, nor was a divorce complaint filed. Recognizing that this Court has not

spoken on the weight to be given marital separations in paternity actions, the court below

emphasized that our decisions have recognized a somewhat narrowing trend in applying

the presumption of paternity. B.C., slip op. at 12-13 (citing Brinkley, supra; K.E.M. v.

P.C.S., 38 A.3d 798, 809 (Pa. 2012)).

Ultimately, the Superior Court reiterated the trial court’s position that the

presumption of paternity was inapplicable where Appellants’ marriage did not require the

protection that the presumption affords. The court relied on the fact that Appellants

maintained that their marital difficulties only made their marriage stronger and

demonstrated their intent to stay together regardless of the outcome of the genetic testing.

The court further emphasized Husband’s desire to stay in the marriage, notwithstanding

that Mother was intimate with both him and B.C. during the time when Child was

conceived, Mother and B.C. lived together for at least four months after Child’s birth, and

Mother held Child out as the son of B.C. during that time.

[J-61-2023] - 10 Determining that the common factor in the aforementioned cases was that the

presumption applied only where the parties never separated, the Superior Court

concluded that Mother and Husband “gave up the benefit of the presumption” when they

separated three times, particularly considering that, during one of those separations,

Mother lived with B.C. and they raised Child together. Id. at 14 (citing B.S., 782 A.2d at

1037). Thus, the court held that the trial court did not abuse its discretion by holding that

the presumption of paternity was inapplicable.

Additionally, the court held that the trial court did not abuse its discretion by

rejecting Appellants’ contention that B.C. was estopped from seeking a paternity test, a

claim not at issue in this appeal. The court observed that estoppel is merely the legal

determination that, because of a person’s conduct, such as holding a child out as his own,

the person will not be permitted to deny parentage. Observing that the underlying policy

concerns regarding the doctrine of estoppel did not arise in this case, the Superior Court

held that it was within the trial court’s discretion to deem the doctrine of estoppel

inapplicable.

This Court subsequently granted Appellants’ petition for allowance of appeal to

address “[w]hether the lower courts erred in placing paramount importance on periods of

separation in determining that the presumption of paternity was inapplicable, despite the

marital couple’s reconciliation which predated the third-party’s paternity action.” B.C. v.

C.P., 300 A.3d 321 (Pa. 2023) (order).7

III. Parties’ Arguments

7 An appellate court reviews a lower court’s paternity determination for an abuse of discretion. H.Z. v. M.B., 204 A.3d 419, 425 (Pa. Super. 2019). This Court’s determination of whether the lower courts properly interpreted our case law regarding family intactness is a question of law, over which our standard of review is de novo and our scope of review is plenary. K.E.M., 38 A.3d at 803.

[J-61-2023] - 11 Appellants contend that the lower courts erred as a matter of law by holding that

separation by the marital couple prior to the filing of a paternity action constitutes a per

se basis upon which to conclude that the family unit is not intact for purposes of applying

the presumption of paternity. After canvassing myriad decisions of this Court, which

considered the intactness of the family for purposes of applying the presumption,

Appellants conclude that this Court has never expressly held that a temporary marital

separation, which occurs prior to the paternity challenge, may serve as the basis to hold

that the family unit is not intact. They contend that the lower court decisions suggesting

that a prior marital separation is a dispositive factor misinterpret this Court’s rulings.8

Appellants submit that a careful reading of this Court’s case law demonstrates that a

marital separation prior to the litigation of the paternity action, if not mere dicta, is, at best,

only one factor in the Court’s overall consideration of the parties’ marital history when

conducting a family intactness inquiry.

Appellants rely, as they did in the lower courts, on this Court’s decision in Strauser,

and argue that the Superior Court erred in distinguishing that case on grounds that the

marital couple there never separated. In Strauser, Appellants point out, the mother of the

child had acknowledged paternity by a third party, a blood test had confirmed that

paternity, and the mother held the child out as the son of the third party. Nevertheless,

they contend, the Court recognized the serious difficulties that the marriage had

overcome, and applied the presumption, finding that its application “serves its purpose by

allowing husband and wife, despite past mistakes, to strengthen and protect their family.”

Strauser, 726 A.2d at 1056. Appellants argue that the crux of the Strauser decision was

not that the couple remained married and never separated, but that the marriage survived

8 Appellants do not specifically address the Superior Court rulings in B.S. and J.L., supra,

upon which the lower courts’ decisions were based.

[J-61-2023] - 12 due to the couple’s choice to preserve it and raise their family together, which conduct fell

under the limited set of circumstances under which the presumption not only applies, but

is irrebuttable. They assert that the same is true here, as they decided to stay together

and have been successfully raising their family, notwithstanding their temporary

separations prior to the filing of the paternity action. In direct contradiction to Strauser,

Appellants maintain that the lower courts used the strength of their marriage against them

by reasoning that, because they overcame their marital difficulties and cultivated a strong

marriage, the presumption was inapplicable.

Emphasizing that the presumption of paternity remains one of the strongest

presumptions known to Pennsylvania law, and that its underlying public policy furthers

the preservation of marriages, Appellants submit that the trial court should examine

whether a marriage is intact as of the time that paternity is challenged by a third party,

despite the difficult circumstances which gave rise to a paternity action. See Appellants’

Brief at 21 (citing Brinkley, 701 A.2d at 181 (conducting the family intactness inquiry as

of the “time of the complaint for support”)).

Conceding that more recent case law has limited the application of the

presumption in light of changing cultural norms, Appellants conclude that the presumption

retains its vitality, and is irrebuttable where, as here, the trial court makes a factual finding,

supported by the record, that the marriage is strong, as the marital couple overcame the

significant obstacles which led to the paternity action. Accordingly, Appellants request

that we reverse the judgment of the Superior Court and remand the case to the trial court

with instructions to grant their motion to dismiss B.C.’s paternity action based upon the

presumption of paternity.

As indicated above, B.C. has not filed an appellate brief in this Court, or in any way

participated in this appeal.

[J-61-2023] - 13 IV. Analysis

The presumption that a child born to a married woman is the child of the woman’s

husband has been a part of our common law for centuries, and has been characterized

as “one of the strongest [presumptions] known to the law.” Cairgle v. American Radiator

& Standard Sanitary Corp., 77 A.2d 439, 442 (Pa. 1951). This legal doctrine was originally

referred to as the “presumption of legitimacy” because it was intended to shield a child

from the stigma attached in the past to illegitimacy, which subjected the child to significant

legal and social discrimination. John M. v. Paula T., 571 A.2d 1380, 1383 n.2 (Pa. 1990).

After the General Assembly eliminated this concern by enacting legislation in 1971 which

abolished the legal distinction between “legitimate” and “illegitimate” children, the Court

referred to the presumption as the “presumption of paternity.” Id.

The presumption of paternity has a second policy justification, which remains today

and is at issue in this appeal, relating to the preservation of the marriage and the family

unit. See O’Brien v. O’Brien, 136 A.2d 451, 453 (Pa. 1957) (holding that the presumption

of paternity “is essential in any society in which the family is the fundamental unit”); John

M., 571 A.2d at 1386 (emphasizing in a paternity case that “[t]here is, in short, a family

involved here,” and recognizing that a married couple living together and raising their

children “have obvious interests in protecting their family from the unwanted intrusions of

outsiders (even ones who have had serious relationships with the mother, father, or

children)”); Jones v. Trojak, 634 A.2d 201, 206-07 (Pa. 1993) (conversely finding that the

presumption of paternity was overcome where “no intact family considerations were

present,” and the marital couple “repudiated their marriage vows long ago”);9 Fish v.

9 This Court in Jones recognized that the phrase “intact family” had been described in

lower court decisions as “a situation where the presumptive father and natural mother live together as husband and wife and accept the responsibility of parenthood.” 634 A.2d at 206 n.8.

[J-61-2023] - 14 Behers, 741 A.2d 721, 723 (Pa. 1999) (reiterating that the policy underlying the

presumption of paternity is the preservation of marriages).

Traditionally, the presumption of paternity could only be overcome by clear and

convincing evidence establishing that the husband did not have access to his wife during

the period of possible conception, or that the husband was impotent or sterile. John M.,

571 A.2d at 1384. Indeed, the presumption has been held to be otherwise irrebuttable

when a third party seeks to assert his own paternity as against the husband in an intact

marriage. Id. at 1388-89. However, under certain circumstances, the distinct doctrine of

paternity by estoppel may apply, and involves a legal determination that, because of a

person’s conduct, such as holding a child out as his own, the person, regardless of his

biological relationship with a child, will not be permitted to deny parentage, nor will a

child’s mother be permitted to sue a third party for support, claiming that the third party is

the biological father. Freedman v. McCandless, 654 A.2d 529, 532-33 (Pa. 1995).

The landscape of the common law governing the presumption of paternity

significantly shifted, however, in 1997, when this Court decided Brinkley, supra. There,

Lisa and George Brinkley were married when their daughter was conceived, although

Lisa testified that she was not having sexual relations with her husband at that time, and,

instead, was having sexual relations with Richard King. When George learned that Lisa

was pregnant with King’s child, George filed for divorce. King visited Lisa and the child

each week for nearly two years, until Lisa filed a complaint for support against King. In

defending against Lisa’s paternity claim, King argued that the presumption of paternity

applied because the child was born during the marriage of Lisa and George, and Lisa had

failed to rebut the presumption that her husband was the child’s father. The trial court

agreed with King that the presumption applied, and that Lisa was precluded from seeking

support from King. The Superior Court affirmed.

[J-61-2023] - 15 This Court granted allowance of appeal to review the way in which the presumption

functions. Ultimately, in a divided opinion, we vacated and remanded. The Opinion

Announcing the Judgment of the Court (“OAJC”), authored by Chief Justice Flaherty,

initially opined that the presumption of paternity and the doctrine of paternity by estoppel

embody the two great fictions of paternity law: “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.” 701

A.2d at 180. Thus, the OAJC explained the pertinent legal analysis in paternity cases

was twofold: (1) the court considers whether the presumption applies to the facts

presented; if it does, the court determines whether the presumption has been rebutted;

and (2) if the presumption has been rebutted or is inapplicable, the court then examines

whether estoppel applies, which may bar either a plaintiff from making the claim or bar a

defendant from denying paternity. Id.

Questioning the wisdom of the presumption’s application due to dramatic societal

changes that had arisen since the presumption was created, concerning not only the

nature of the relationship between men and women, but also the commonality of

separation, divorce, and children born out of wedlock, the OAJC broke with precedent

and limited the use of the presumption to cases where the policy underlying the

presumption is furthered, rendering the presumption otherwise inapplicable. Id. at

180- 81.10 The OAJC expressly defined the public policy supporting the presumption of

paternity as “the concern that marriages which function as family units should not be

10 Four members of the Court agreed that the presumption’s application is limited to cases

where its underlying policies are furthered, as Justice Cappy joined the OAJC, and Justice Newman’s concurring and dissenting opinion, in which Justice Castille joined, expressly agreed with this portion of the OAJC.

[J-61-2023] - 16 destroyed by disputes over the parentage of children conceived or born during the

marriage.” Id. at 180.

Concluding that there was no marriage to protect under the facts presented in

Brinkley, as the parties had separated before the child’s birth and were divorced at the

time the support complaint was filed, Chief Justice Flaherty opined that the “presumption

of paternity, therefore, has no application to this case, for the purpose of the presumption,

to protect the institution of marriage, cannot be fulfilled.” Id. at 181. Having concluded

that the presumption of paternity was not applicable, the OAJC remanded for a hearing

on the issue of estoppel.11

11 Several responsive opinions were filed in Brinkley, proffering distinct ways by which to

remediate the harsh results of the presumption’s application in the modern age. Justice Zappala concurred in the result, opining that, instead of limiting the presumption’s application, he would have expanded the means of rebutting the presumption by defining “non-access” to the wife more broadly to include testimony establishing that no sexual relations occurred during the period of conception. In his concurring and dissenting opinion, Justice Nigro agreed with the Court’s remand, but would have adopted an approach permitting trial courts to decide paternity issues on a case-by-case basis, unburdened by the application of a presumption or estoppel theory, where the court would be permitted to weigh the relevant evidence, including blood test results and concerns of an existing family unit, to reach an equitable result. Finally, Justice Newman filed a concurring and dissenting opinion, joined by Justice Castille, in which she asserted that the presumption of paternity “has lost its place in modern society, especially considering the scientific testing available both to prove and disprove paternity.” 701 A.2d at 185. (Newman, J., concurring and dissenting). In Justice Newman’s view, the presumption conflicts with the Uniform Act on Blood Tests to Determine Paternity, 23 Pa.C.S. § 5104. Justice Newman interpreted Section 5104 as expressly permitting the use of blood tests in any case where paternity is a relevant issue, and allowing the presumption to be rebutted by such blood testing. (The application of Section 5104 was never raised in the instant case in the lower courts or before us.) Lastly, Justice Newman disputed the OAJC’s narrow definition of “non-access” to the wife, and would hold that lack of sexual intercourse is sufficient to overcome the presumption. 701 A.2d at 186.

[J-61-2023] - 17 This historical background of the presumption brings us to the cases relied upon

by Appellants and the lower courts in this appeal. In Strauser, supra, Timothy Strauser

filed a custody complaint, asserting that he was the father of the youngest of the three

children born to April and Steven Stahr, as demonstrated by blood tests voluntarily

submitted by April, the child, and Strauser. April and Steven invoked the presumption of

paternity to defeat Strauser’s claim. The trial court found that: April and Strauser had

sex on at least one occasion during the time of the child’s conception; April was also

having sex with Steven during that time; April and Steven were married when the child

was conceived and born, and remained married without ever separating; April had held

the child out to the community as Strauser’s child, and promoted his relationship with the

child; and Steven exhibited an attitude of indifference toward April and the child.

The trial court held that April, having held out her child to be Strauser’s and having

voluntarily submitted to blood testing, was equitably estopped from contesting the child’s

paternity. The court also admitted the blood tests into evidence, and concluded that the

presumption of paternity was overcome. The Superior Court reversed, holding that the

presumption of paternity applied and was irrebuttable because the family had remained

intact. This Court affirmed.

Acknowledging that the presumption of paternity had been criticized in Brinkley,

the Court found the facts in Strauser to be distinct, as “the marriage into which [the child]

was born continues.” Strauser, 726 A.2d at 1055. The Court emphasized that, “despite

the marital difficulties that they have encountered, [April and Steven] have never

separated,” and, “[i]nstead, they have chosen to preserve their marriage and to raise as

a family the three children born to them,” including the child at issue. Id. Accordingly, we

held that the case fell within the limited circumstances under which, according to the

[J-61-2023] - 18 Brinkley plurality, the presumption of paternity continued to apply, and was, in fact,

irrebuttable.

Notably, in rejecting Strauser’s claims that April and Steven Stahr did not enjoy a

traditional marriage and family unit because, inter alia, the couple had experienced

conflict caused by adultery, and April represented to others that Strauser was the child’s

father, the Court found that such assertions were “not unique,” as they indicated that the

Stahrs’ marriage, like many, “encountered serious difficulties.” Id. at 1056. The Court

declared that it “is in precisely this situation, as was suggested in John M., that the

presumption of paternity serves its purpose by allowing husband and wife, despite past

mistakes, to strengthen and protect their family.” Id. Thus, finding that the presumption

was applicable and irrebuttable, the Court deemed unavailing any reliance upon an

estoppel theory.12 13

This Court has not before entertained a case like the instant appeal, where the

marital couple had separated prior to the filing of the paternity action, but reconciled by

the time the action was litigated. In B.S. v. T.M., supra, upon which the lower courts

relied, the Superior Court examined a somewhat similar factual scenario, and concluded

that the presumption of paternity did not apply. As in this appeal, the marriage at issue

12 As in Brinkley, Justice Nigro filed a dissenting opinion setting forth his position in favor

of a case-by-case approach to paternity cases unburdened by the application of the presumption of paternity. Similarly, Justice Newman filed a dissenting opinion in which Justice Castille joined, opining that, while the presumption applied because the marriage had been intact at all relevant times, she would find that the presumption was rebutted by the blood test results, which indicated the identity of the biological father. 13 The Superior Court applied our holding in Strauser in E.W. v. T.S., supra, and held that

the presumption of paternity applied because the marriage was intact, as the couple never separated, no divorce complaint was filed, and the mother’s husband fulfilled the duties of a father in connection with the child’s birth and religious rites. E.W., 916 A.2d at 1204. The court reached this conclusion, notwithstanding that the wife had represented to the friends and family of her paramour that the child belonged to him.

[J-61-2023] - 19 in B.S. was purportedly intact at the time of the third party’s paternity filing, and the

husband testified to his willingness to continue to live as an intact family unit, despite his

wife’s infidelity. Nevertheless, the Superior Court declined to apply the presumption, and

rejected the marital couple’s reliance upon Strauser on grounds that the parties there

never separated and were an intact family at all times. Conversely, in B.S., the couple

had separated for approximately one year from the time of the child’s conception until

after her birth, during which time the mother acted as though the separation was

permanent, and T.M., her paramour, undertook parental responsibilities.

In finding that application of the presumption would not further its underlying policy

of protecting marriages from the effects of disputed paternity, the B.S. court first reasoned

that there was no real dispute as to the identity of the child’s father, considering that the

mother left the marital home after learning she was pregnant; she filed for divorce; she

and T.M. looked to purchase a home together; T.M. was present for the child’s birth and

was listed as the child’s father on a paternity acknowledgement form; and T.M.

participated in the child’s baptism ceremony and added the child to his health insurance.14

Second, the court held that the marriage would not be harmed if the court declined

to apply the presumption because the “hellish marital situation” had already occurred, as

the parties had acknowledged the extramarital affair, the subsequent birth of the child,

the marital separation, and the mother holding out T.M. as the father of child. B.S., 782

A.2d at 1037. Third, the court held that application of the presumption could actually have

a deleterious effect on the family, particularly the child, who could suffer greater trauma if

she later finds out, due to the public nature of the separation, that the truth of her

parentage is different from what she had been led to believe. Concluding that the mother

14 Paternity testing was performed and the results of the test were known only to the

parties. B.S., 782 A.2d at 1031-32.

[J-61-2023] - 20 and her husband “voluntarily gave up the benefit of the presumption for approximately

one year after which they claimed the benefits of its existence,” the court found that any

damage to the marriage was “water under the bridge,” as the couple had reconciled with

complete awareness of the events that occurred. Id. Accordingly, finding that application

of the presumption would not further the policy of protecting the marriage, the court held

that the presumption did not apply.

The Superior Court relied upon B.S. in its subsequent decision in J.L. v. A.L.,

supra, to conclude that the presumption of paternity was inapplicable. In J.L., the marital

couple was experiencing difficulties and the mother ultimately moved into a separate

apartment, although the couple did not file for divorce, and continued to have sexual

relations. The mother engaged in an extra-marital affair with J.L., and became pregnant,

after which J.L. assumed the responsibilities of an expectant father, and mother and J.L.

presented themselves to others as a couple preparing for the birth of their child. The

mother gave birth while still married, and listed her husband as the father on the child’s

birth certificate. While all parties later became aware that a prenatal paternity test

indicated that J.L. was the biological father of the child, the mother held out both J.L. and

her husband as the child’s father, depending upon the company she was keeping at the

time, and both men assumed parental duties. After the relationship between the mother

and J.L. ceased, the mother no longer permitted J.L. to see the child.

After J.L. filed a paternity action, the marital couple invoked the presumption of

paternity, asserting that they had never separated or filed for divorce, and that their

marriage had remained intact. At the hearing, both the mother and her husband testified

to that effect, with the husband expressing his desire to stay with his wife, despite her lies

and deception regarding the paternity of the child. Unlike the instant case and B.S.,

however, the trial court expressly discredited the mother’s testimony regarding the status

[J-61-2023] - 21 of the marriage, concluding, instead, that the marriage was a façade, created by the

marital couple to keep J.L. out of the child’s life. Accordingly, the trial court held there

was no need to apply the presumption to preserve the marriage. The Superior Court

affirmed, declining to disturb the trial court’s credibility determinations and holding that

the record supported the trial court’s conclusion that the presumption of paternity did not

apply because the marriage did not require protection. Further, emphasizing that the

child has been publicly held out as the child of J.L., the court opined that, as in B.S., there

is the potential for a negative impact on the family if the presumption were applied and

the child were to later discover her true paternity.

Our review of the relevant case law instructs that both this Court and the Superior

Court have followed the trend of narrowing the application of the presumption of paternity

over the years to reflect more accurately the societal realities of the times. This Court’s

decisions, however, have held steadfast that there is a single circumstance under which

the presumption of paternity continues to apply, and, indeed, is irrebuttable – where there

is an intact marriage to preserve. In this appeal, the trial court found that Appellants are

living together with Child as a family, and their marriage is strong, notwithstanding the

multiple contentious periods of separation that the couple endured.15

The record supports this finding, as Mother testified that she and Husband had

reconciled prior to B.C.’s filing of the paternity action,16 and, by the time the paternity

hearing was conducted on April 11, 2022, the couple had remained together for 15

15 Admittedly, it may well be a rare case where a marital couple, such as Appellants, have

temporarily separated multiple times prior to the filing of the paternity action, and yet demonstrated to the trial court that they have overcome their marital difficulties to such an extent that rendered their marriage stronger than before the infidelity occurred. 16 The record establishes that Mother and Husband reconciled and lived together since

January 13, 2021, and B.C. filed his action more than seven months later, on August 27, 2021.

[J-61-2023] - 22 months. During that time, Mother explained, she and Husband were doing very well

raising their son, Husband was “truly a great father,” and she did not contemplate any

future separations because the marriage was working. N.T., 4/11/2022 at 39, 42.

Husband corroborated Mother’s testimony, expressed his love for Mother and Child, and

confirmed that the trials and tribulations of the marital conflict, which resulted in the

parties’ prior separations, ultimately made their marriage stronger. Id. at 59-60. When

questioned whether the injection of a third party as an additional parental figure to Child

would impact his family unit, Husband responded, “[d]efinitely,” finding the proposition

“utterly preposterous.” Id. at 59.17

Rather than finding that the presumption of paternity applied to protect Appellants’

existing strong marriage from the adverse effects of the paternity dispute, the lower courts

reasoned that the marriage was so strong that it did not require the protection the

presumption affords. We reject this legal theory, originally espoused in the Superior

Court’s decision in B.S., and later referenced in that court’s decision in J.L., as it cannot

be reconciled with this Court’s decision in Strauser, which held that the presumption of

paternity applies precisely in this situation – where the evidence establishes that a

marriage and resulting family unit have overcome the seemingly insurmountable odds

and remained together after marital infidelity. Logic dictates that the presumption offers

little protection against the heart-wrenching revelations and resulting personal

devastation, many times public in nature, that may arise prior to and during the litigation

of a paternity dispute, as some, if not all, of these damning events may have already

occurred by the time the court is examining whether the presumption applies. The

17 This testimony undermines the trial court’s specific finding that “the parties testified that

the court’s determination will not affect the marriage.” Trial Court Opinion, 5/27/2022, at 8. A review of both Husband’s and Mother’s testimony fails to reveal any other testimony in support of the trial court’s specific conclusion in that regard.

[J-61-2023] - 23 presumption, however, additionally protects against the potential insertion of a third party

into the functioning family unit upon resolution of the paternity action. This protection is

warranted whenever the court finds, and the record supports the finding, that an intact

marriage exists.

Thus, the “water under the bridge” construct, employed to preclude application of

the presumption where the marital couple already acknowledged the effects of the

paternity litigation, is simply inapt, as it views the protection afforded by the presumption

too narrowly. See K.E.M., 38 A.3d at 809 (“The legal fictions perpetuated through the

years (including the proposition that genetic testing is irrelevant in certain paternity-related

matters) retain their greatest force where there is truly an intact family attempting to

defend itself against third-party intervention.”). Accordingly, the lower courts erred to the

extent they relied upon this reasoning in determining that the presumption of paternity

was inapplicable in the case at bar.

The lower courts, however, additionally found that the presumption of paternity did

not apply because of Appellants’ multiple separations prior to the filing of the paternity

action. To be precise, the trial court found that the marriage was strong at the time of the

paternity hearing, but was not “intact” for purposes of applying the irrebuttable

presumption due to Appellants’ separations, which occurred prior to the filing of the

paternity action. Neither the trial court nor the Superior Court substantively relied upon

the strength of Appellants’ marriage at the time of the paternity hearing when conducting

the family intactness inquiry; instead, as explained supra, the courts utilized their current

marital strength to find the presumption’s application unnecessary.

Distinguishing Strauser on grounds that the marital couple there never separated,

the Superior Court in B.S. declined to apply that decision, holding instead that the marital

couple “voluntarily gave up the benefit of the presumption for approximately one year

[J-61-2023] - 24 [when they separated] after which they claimed the benefits of its existence for the first

time.” B.S., 782 A.2d at 1037. The Superior Court below followed B.S.’s reasoning and

concluded that Appellants likewise gave up the benefit of the presumption by separating

multiple times. Again, we respectfully disagree. In Strauser, as detailed above, the

mother of the child had acknowledged paternity by a third party, and held the child out as

the son of the third party – actions which directly conflict with the presumption that a child

born in a marriage is a child of the marriage. Nevertheless, we did not hold that the

mother’s conduct constituted a voluntary relinquishment of the presumption; rather, in

Strauser, we focused upon the fact that there was a family involved, and that the marital

couple chose to preserve their marriage and to raise as a family the children born during

the marriage. Strauser, 726 A.2d at 1055. Regardless of the mother’s conduct, we held

in Strauser that the application of the presumption of paternity “serves its purpose by

allowing husband and wife, despite past mistakes, to strengthen and protect their family,”

emphasizing that protection of an intact marriage falls under the limited set of

circumstances under which the presumption not only applies, but is irrebuttable. Id. at

1056.18

In short, while not phrased as such, the Superior Court has interpreted Strauser

as effectively precluding application of the presumption of paternity in any case where the

marital couple has temporarily separated. Respectfully, while we agree that a marital

couple’s prior temporary separation is a factor to consider in determining whether the

18 A similar fact pattern arose in E.W., supra, where the Superior Court, pursuant to

Strauser, applied the presumption of paternity where the couple had never separated or filed for divorce, but where the mother publicly held the child out as the child of a third party to the third party’s friends and family.

[J-61-2023] - 25 marriage is intact at the time of the paternity hearing, we hold that such factor is not

dispositive.19

In summary, we hold that the lower courts erred in concluding that the presumption

of paternity was inapplicable on grounds that Appellants’ marriage did not require the

protection the presumption affords. We further hold that the lower courts, in conducting

their inquiry regarding whether Appellants’ marriage was intact for purposes of applying

the presumption, erred by giving primary importance to their marital separations, which

occurred prior to the filing of the paternity action, while giving no substantive consideration

to the intact status of their marriage. While such separations and their attendant

circumstances are, indeed, relevant to a determination of whether the marriage is intact,

they are not dispositive. Accordingly, we reverse the order of the Superior Court, and

remand to the trial court with instructions to grant Appellants’ motion to dismiss B.C.’s

paternity action.

In closing, we reiterate that this appeal does not present the issue of whether the

presumption of paternity has outlived its usefulness in light of contemporary standards.

Unless or until this Court abrogates the presumption of paternity in a case where that

issue is preserved and fully developed, courts in this Commonwealth shall apply the

presumption of paternity in the limited circumstance where its purpose to preserve

marriage is advanced. See K.E.M., 38 A.3d at 806 n.4 (finding that “[o]ur common-law

19 Of course, the circumstances of each particular paternity case must be reviewed independently and in its entirety, with due regard given to the trial court’s findings which are supported by the record. The trial court is free to reject evidence suggesting that a particular marriage is intact, as the factfinder is entitled to weigh the evidence presented and assess the credibility of witnesses. See J.L., 205 A.3d at 356 (trial court expressly discredited the mother’s testimony that the marriage was intact and entitled to the protection of the presumption of paternity, concluding, instead, that the marriage was a façade, intended to keep the third party out of the child’s life).

[J-61-2023] - 26 decisions are grounded in records of individual cases and the advocacy by the parties

shaped by those records”).

Order reversed, and case remanded with instructions.

Justices Donohue, Dougherty, Mundy and Brobson join the opinion.

Justice Wecht files a concurring opinion.

Justice McCaffery did not participate in the consideration or decision of this matter.

[J-61-2023] - 27