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Pennsylvania High Court Says Behavior More Important Than Biology When Determining Paternity

By Lori Litchman
The Legal Intelligencer

Behavior is more important than science in determining paternity, a divided Pennsylvania Supreme Court has ruled.

Even though a blood test showed that David Fish was not the father of a boy born while he was still married to Ruth Fish, the court said that because he acted as the father for the first three years of the boy's life, Ruth could not seek support from the man believed to be the biological father of the child.

"The father-son relationship with appellant's husband is the only such relationship this child has known," Justice Ronald D. Castille wrote for the majority. "The alternative—forcing the child into a relationship with appellee, a man whom he does not know—is not in the best interests of the child."

The court said Ruth Fish was estopped from saying Robert Behers is the father of her child.

The court said the presumption of paternity doctrine was inapplicable in this case because the Fishes have since divorced.

Justices Russell M. Nigro and Sandra Schultz Newman filed separate dissenting opinions. Justice Thomas Saylor did not participate in the decision because he participated in the case on the Superior Court level.

Nigro struck out against the majority to say he believed courts should abandon a strict adherence to the estoppel doctrine and that courts should be allowed to order paternity blood tests.

The high court's decision affirmed the Superior Court's opinion.


While the Fishes were married, Ruth gave birth to a baby boy on June 2, 1989.

When the child was conceived, Ruth was having an affair with Behers and had stopped having sex with her husband. When she found out she was pregnant, Ruth told Behers that he was the father and that she was going to have an abortion.

Behers convinced her to have the child. When Zachary was born, Ruth told her husband, David, that he was the father.

Ruth listed David as the father on her son's birth certificate and for the next three years, David treated the child as if it were his own. He supported the child financially and emotionally and claimed him as a dependent on tax returns.

Throughout the first three years of Zachary's life, David said from time to time that he was concerned that he wasn't the father of the child, but Ruth continued to tell him that he was.

In June 1992, Ruth finally told her husband that he was not Zachary's father. In August, David moved out of the house and filed for divorce. He had blood tests done which proved that he was not the child's father.

When the divorce was settled in December 1993, the Fishes entered into an agreement that provided David would pay support for the couple's two older children but not for Zachary.

Ruth then filed child support from Behers. A hearing officer let the case proceed, and the Allegheny County Family Court upheld that decision.

But on appeal to the Superior Court, a split en banc panel of judges reversed, saying David had been held out to the public as Zachary's father for three years. The split court said Ruth could not ignore that behavior to seek support from Behers.

"The dissolution of the marriage in 1992-1994 had no bearing on the intact status of the family for purposes of estoppel, and once the mother, with irrefutable knowledge of the child's paternity, manifests an intent and conducts herself in a manner leading her husband, the child and the world to treat Zachary as a child of the marriage, she is estopped from denying the parentage of the child now that she wishes to end the marriage and believes a better provider of support would be Mr. Behers," Superior Court Judge Patrick Tamilia wrote in his opinion.

Tamilia said what matters is not so much who the biological father is but who had established a relationship with the child. Technological advances shouldn't alter the law, he said.

"Despite attempts in recent times to insinuate otherwise and the advent of modern technology by discovery of almost incontrovertible means of proving paternity through genetic, HLA and DNA testing, the resolution of the issue of paternity is determined by behavior, conduct and intent during a particular period of time," Tamilia said.

"This determination is unaffected by performance of or demand for blood tests, which are irrelevant to the issue."

While Tamilia dismissed the importance of blood tests and technological advances in establishing paternity, two other judges, who were on opposing sides in deciding the case, said the traditional approach has become outdated and courts need to pay more attention to the new methods.

Ruth Fish appealed to the Supreme Court.


The high court—under guidelines set forth in Brinkley v. King—first established that the presumption of paternity did not apply to the Fish case because the goal of that doctrine "is the preservation of marriages."

Since Ruth and David had already divorced, the presumption of paternity was not applicable.

The court then focused on whether Ruth was estopped from saying Behers was Zachary's father. The court said she was.

The Supreme Court said because Ruth put David's name on the birth certificate, gave Zachary David's last name, listed the child as a dependent on the couple's income tax returns and treated the boy as both her and David's child, Ruth was estopped from asserting Behers was the father.

"The child continues to believe that the husband is his father, and the husband, during the child's first three years of life, formed a father-son relationship with the child," Castille wrote. "This evidence amply shows that appellant and her husband accepted the husband as this child's father and does not indicate that the husband failed, during the marriage, to accept the child as his."

The court said to force Zachary into a father-son relationship with Behers would not be in the child's best interest.

In his dissent, Nigro said he would have sided with the trial court that Behers should submit to blood tests to determine paternity.

He said that strictly applying paternity by estoppel "leads to illogical and inequitable results."

"This situation is a perfect example of why I believe that our courts should abandon the strict application of the estoppel doctrine and grant trial courts the discretion to order paternity blood tests and then consider such evidence along with other factors relevant to the best interests of the child involved."

"Such an approach ... only prevent[s] biological fathers from using the estoppel doctrine as a vehicle for insulating themselves from parental responsibilities."

Newman joined Nigro's dissent, but wrote separately to say that her view is that the presumption of paternity is rebuttable and doesn't prohibit the court from ordering Behers to submit to a paternity blood test.


In April, the high court decided that the presumption of paternity will be the law of the land in Pennsylvania into the new millennium.

The majority in Strauser v. Stahr decided to uphold the presumption in any case where a marriage is intact, even when blood tests prove a man other than the husband is the father.

The decision took a turn away from the last case in which the justices spoke out on the presumption, Brinkley.

In Brinkley, Chief Justice John Flaherty called the presumption of paternity—which holds that a child born into a marriage is a child of that marriage—"one of the great fictions" of the law of paternity.

But in Strauser, the majority—including Flaherty—said the presumption was "irrefutable" if the case involves an intact marriage.

Danielle N. Rodier contributed to this report.


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