C.T.D. v. N.E.E.

653 A.2d 28, 439 Pa. Super. 58, 1995 Pa. Super. LEXIS 15
CourtSuperior Court of Pennsylvania
DecidedJanuary 9, 1995
StatusPublished
Cited by16 cases

This text of 653 A.2d 28 (C.T.D. v. N.E.E.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C.T.D. v. N.E.E., 653 A.2d 28, 439 Pa. Super. 58, 1995 Pa. Super. LEXIS 15 (Pa. Ct. App. 1995).

Opinions

DEL SOLE, Judge:

This appeal raises important issues regarding a putative father’s right to request court ordered blood tests to determine paternity and the rights of the child’s mother and the man who is named as the child’s father on his birth certificate, to not undergo such testing.

N.E.E. gave birth to a son, B.T., on June 22, 1990 and at that time, chose not to name B.T.’s father. She testified that when B.T. was conceived, she was involved in sexual relationships with three men, M.C.E., C.T.D. and S.M. and while she believed that M.C.E. was B.T.’s biological father, she chose not to name him as such because their relationship was still developing.

N.E.E.’s relationship with M.C.E. continued throughout her pregnancy and she also remained in contact with C.T.D. He accompanied her to the doctor on a couple of occasions, and they exchanged several letters. In one of her letters to him, N.E.E. informed C.T.D. that it was her belief that either he or S.M. was the father of her baby, but that nothing could be determined for sure until the baby was born and blood tests were performed. M.C.E. was not mentioned in the letter. As her pregnancy progressed, contact between C.T.D. and N.E.E. lessened and eventually ceased following a phone conversation that occurred between them two days after B.T.’s birth. During that conversation, N.E.E. told C.T.D. that the baby was a boy and that she was now with M.C.E. who had been at her side during B.T.’s birth.

After B.T. was born, the relationship between N.E.E. and M.C.E. continued. In June 1991, N.E.E. and B.T. moved in with M.C.E. and his parents and within a few months, M.C.E., N.E.E. and B.T. moved into a home of their own. On December 31,1991, M.C.E. and N.E.E. married and on March 5, 1992, a new birth certificate was issued for B.T. naming M.C.E. as his father.

On March 24, 1992, N.E.E. received a letter from an attorney representing C.T.D. and S.M. requesting that all parties involved submit to blood testing to determine the identity of B.T.’s biological father. N.E.E. refused to submit to the testing and on June 22, 1992, C.T.D. and S.M. filed a Complaint seeking partial custody and visitation of B.T. and a [30]*30Petition for Blood Tests.1 Acting upon an agreement that was purportedly entered into between N.E.E., C.T.D. and S.M., the court entered a Consent Order directing that the parties submit to blood tests. Subsequently, N.E.E. filed a Motion for a Protective Order challenging the veracity of the Consent Order on the grounds that it was improperly granted because N.E.E.’s attorney acted without authority to enter into it on N.E.E.’s behalf and that it was improperly granted without M.C.E.’s joinder and consent. The court granted the Protective Order and an evidentiary hearing was held for the purposes of taking testimony relating to the petition for blood tests. After hearing testimony from the parties, the trial court ordered the tests and this appeal followed.2

N.E.E. and M.C.E. argue that the trial court erred in ordering the blood tests. They allege that C.T.D. was estopped from requesting the tests because his petition was not filed until B.T. was almost two years old. They argue that in the interim they established a family unit and Appellee failed to claim or establish any parental right to B.T. during that time.

Subsection “c” to the Uniform Act on Blood Tests to Determine Paternity, 23 Pa. C.S.A. § 5104 provides as follows:

(c) Authority for test.—In any matter subject to this section in which paternity, parentage or identity of a child is a relevant fact, the court, upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to the tests, the court may resolve the question of paternity, parentage or identity of a child against the party or enforce its order if the rights of others and the interests of justice so require.

23 Pa.C.S.A. § 5104(c).

This court has held that “[wjhile the Act creates a statutory right to obtain blood testing to determine paternity, the right is not absolute and must be balanced against competing societal/family interests.” McCue v. McCue, 413 Pa.Super. 71, 74, 604 A.2d 738, 739 (1992), allocatur denied, 531 Pa. 655, 613 A.2d 560 (1992) citing Donnelly v. Lindenmuth, 409 Pa.Super. 341, 344, 597 A.2d 1234, 1235 (1991). N.E.E. and M.C.E. argue that C.T.D.’s alleged right to the testing is far outweighed by the fact that they have established a family and that C.T.D. has failed to develop any relationship with B.T. In particular, N.E.E. and M.C.E. rely on 23 Pa.C.SA § 5102(b) for the proposition that paternity by estoppel bars C.T.D. from seeking and obtaining the requested testing. It reads as follows:

(b) Determination of paternity.—For purposes of prescribing benefits to children born out of wedlock by, from and through the father, paternity shall be determined by any one of the following ways:
(1) If the parents of a child born out wedlock have married each other.
(2) If, during the lifetime of the child, it is determined by clear’ and convincing evidence that the father openly holds out the child to be his and either receives the child into his home or provides support for the child.
(3) If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

23 Pa.C.S.A. § 5102(b).

Because N.E.E. and M.C.E. married after B.T.’s birth, there is no presumption that M.C.E. is B.T.’s biological father. See Everett v. Anglemeyer, 425 Pa.Super. 587, 625 A.2d 1252 (1993) and John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990) cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990) (presumption exists that a child is a child of the marriage where the child is born to a married woman). Recog[31]*31nizing that that presumption does not apply to this case, N.E.E. and M.C.E. argue instead that this case should be determined according to the doctrine of paternity by estoppel.

“[P]rinciples of estoppel are peculiarly suited to cases where the child is conceived out of wedlock and no presumptions of paternity apply.” Jefferson v. Perry, 432 Pa.Super. 651, 656, 639 A.2d 830, 833 (1994). “In simplistic terms, the doctrine [of equitable estoppel upon which paternity by estoppel is based] is one of fundamental fairness such that it prevents a party from taking a position that is inconsistent to a position previously taken and thus disadvantageous to the other party.” In re Estate of Simmons-Carton, 434 Pa.Super. 641, 654, 644 A.2d 791, 798 (1994).

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Bluebook (online)
653 A.2d 28, 439 Pa. Super. 58, 1995 Pa. Super. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ctd-v-nee-pasuperct-1995.