DeFinis v. DeFinis

41 Pa. D. & C.3d 409, 1984 Pa. Dist. & Cnty. Dec. LEXIS 34
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedJune 5, 1984
Docketno. A06-82-61063-C-10
StatusPublished

This text of 41 Pa. D. & C.3d 409 (DeFinis v. DeFinis) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeFinis v. DeFinis, 41 Pa. D. & C.3d 409, 1984 Pa. Dist. & Cnty. Dec. LEXIS 34 (Pa. Super. Ct. 1984).

Opinion

MIMS, J

This matter is before the court on father’s motion for a protective order to prevent the taking of blood tests in a custody action.

Father and mother were married on February 14, 1976. A son was born on February 24, 1980. Father and mother separated April 1, 1982. The child was two years old at the time of separation and continued to live with father until June, 1982.

Father filed a petitidn for custody of the child on April 2, 1982. Mother filed a custody petition on April 13, 1982. Both petitions stated that the child was born as a result of the marriage of the parties and that no one else had a claim to visitation or custody of the child.

On June 24, 1982, a temporary agreement between the parties was reached before the custody conference officer which provided for an equal division of physical custody of the child. This agreement is still in effect.

A hearing date on mother’s petition for contempt of the agreement was set for August 13, 1982. However, this court was made aware for the first time at a prehearing conference held that day that mother wished to raise the issue of paternity of the child and that she planned to allege that father was not in fact the biological father of the child. Because we did not believe that the courtroom was the proper setting for this type of revelation, we continued the hearing upon the parties’ agreement to attend coun[411]*411seling sessions with Court Psychological Services. The hope was that some further agreement as to custody of the child could be reached. Obviously, this did not occur.

Apparently some time in January 1983, mother’s attorney suggested to father’s attorney that father submit voluntarily to HLA blood testing. Father refused. Mother filed a petition to compel blood testing and an order was entered by this court on February 18, 1984. Father alleged that he had had no prior notice of the petition to compel and he filed a motion for a protective order.

Father’s position is that paternity is not a “relevant fact” in this custody action and that mother is estopped from compelling father to submit to a blood test. Mother’s position is that paternity is a relevant fact and that the court is authorized to order blood tests in this case.

The Uniform Act on Blood Tests to Determine Paternity, Act of July 9, 1976, P.L. 586, §2, 42 Pa.C.S. §6133, states:

“In any matter subject to this subchapter 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 such tests, the court may resolve the question of paternity, parentage or identity of a child against such party, or enforce its order if the rights of others and the interest of justice so require.” While it may be true, as mother contends, that paternity is a relevant fact in a custody proceeding, we believe that we are bound by pri- [412]*412or case law to apply the doctrine of estoppel in this situation.

In Com. ex rel. Goldman v. Goldman, 199 Pa. Super. 274, 184 A.2d 351 (1962), a support action was filed by mother and father petitioned the court for an order requiring blood tests. The issue before the court was whether the Uniform Act on Blood Tests to Determine Paternity, Act of July 13, 1961, P.L. 587, 28 P.S. §307.1 et seq., applied to a support action for a child born during the marriage of the parties. While blood tests were permitted in Goldman, the Superior Court also stated that a husband’s right to question paternity was not unlimited and that a husband could be estopped from denying paternity if he had accepted the child and had held the child out as his own.

In Com. ex rel. Weston v. Weston, 201 Pa. Super. 554, 193 A.2d 782 (1963), a support action where the children were born during the marriage and husband did not deny paternity until after the parties’ separation, the court held that the doctrine of estoppel applied.

In Com. ex rel. Hall v. Hall, 215 Pa. Super. 24, 257 A.2d 269 (1969), also a support action, the husband was estopped when he had not challenged his paternity prior to separation and he had executed a separation agreement acknowledging the child as his own.

And, in Gonzalez v. Andreas, 245 Pa. Super. 307, 369 A.2d 416 (1976), where husband petitioned to terminate support, the Superior Court held that equitable estoppel applied even where the blood tests had already been taken. Whether the tests had already been taken or-not, the issue remained the same: whether the putative father had indicated by his conduct that the child was his own.

[413]*413While at least one dissent was filed in each of the above cases, the Superior Court, as recently as February 1984, has reaffirmed its position on the applicability of estoppel in support actions. Chrzanowski v. Chrzanowski, 325 Pa. Super. 298, 472 A.2d 1128 (1984), involved a child support modification proceeding under the Revised Uniform Reciprocal Enforcement Support Act and the case dealt with a variety of issues. As to estoppel, Judge Beck stated that the ex-husband would have been precluded from litigating paternity, even if paternity had not already been litigated in Virginia, by his:

“. . . long delay in raising the issue at all and by his acceptance and support of the child during that time. See Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa. Super. 307, 369 A.2d 416 (1976); Commonwealth ex rel. Weston v. Weston, 201 Pa. Super. 554, 193 A.2d 782 (1963); Commonwealth ex rel. Goldman v. Goldman, 199 Pa. Super. 274, 184 A.2d 351 (1962). Appellee’s conduct constitutes an assumption of parental duties toward Marie regardless of whatever verbal representations he may have made to Marie or to others in the course of his social and professional life. This court in the above cases found that parental relationships can be established constructively and that such relationships and their concomitant duties merit judicial recognition and enforcement. The policy behind this rule was best expressed in Gonzalez:

“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 [414]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth Ex Rel. Gonzalez v. Andreas
369 A.2d 416 (Superior Court of Pennsylvania, 1976)
Commonwealth Ex Rel. Goldman v. Goldman
184 A.2d 351 (Superior Court of Pennsylvania, 1962)
Commonwealth Ex Rel. Hall v. Hall
257 A.2d 269 (Superior Court of Pennsylvania, 1969)
Chrzanowski v. Chrzanowski
472 A.2d 1128 (Supreme Court of Pennsylvania, 1984)
In Re Adoption of Young
364 A.2d 1307 (Supreme Court of Pennsylvania, 1976)
Commonwealth ex rel. Weston v. Weston
193 A.2d 782 (Superior Court of Pennsylvania, 1963)

Cite This Page — Counsel Stack

Bluebook (online)
41 Pa. D. & C.3d 409, 1984 Pa. Dist. & Cnty. Dec. LEXIS 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/definis-v-definis-pactcomplbucks-1984.