Is it Ever Too Late to File for Custody or Seek Genetic Testing to Determine Paternity?

In a recent case, Kish v. Kish, the Pennsylvania Superior Court allowed a wife’s paramour to obtain a paternity test over the objection of the wife’s husband. In this particular case, the wife and her husband had an unstable relationship, that was on and off again. It was unclear precisely when the wife conceived her child, but she began residing with her paramour while she was pregnant. Both the husband and the paramour alleged they were the biological fathers of the child. To complicate things further, even though the child would refer to the husband as “Dad,” the evidence revealed that the paramour was the one who signed the paternity paperwork at the hospital.

After the lower court granted Paramour’s request for a paternity test, the husband filed an appeal on two grounds. First, he argued the concept of “Paternity by Estoppel.” In his argument, the husband stated that too much time had passed to allow for a change in paternity, and there existed the presumption that he was the father since he was married to his wife. Secondly, the husband argued that a change in custody would be against the best interests of the child, who had already developed a strong relationship with the wife’s husband.

In general, when a child is born during the course of a marriage, it is presumed that the husband is the biological father of the child. To break this presumption, an outside party must prove with clear and convincing evidence that there is no longer an intact marriage to preserve. Only then, will the court entertain paternity testing to establish custody outside of the of the husband and wife.

In the bigger picture, the concept of paternity by estoppel is based on a public policy argument that children should be secure in knowing who their parents are. If one person has held themselves out as the father and bonded with the child, it would be traumatizing to the child to then break that bond and introduce someone new. However, the court must also evaluate the actual relationship between the husband and the natural mother before rejecting a paternity test.

In this case, the lower court held that the parties’ marriage was not intact. The husband admittedly stated that he was not residing with his wife at the time of the hearing, and he did not know where his wife was living. This seemingly stemmed from my wife’s drug addiction. The husband also conceded that he recognized the unstable nature of his marriage.

More importantly, the Superior Court determined that the child had a strong relationship with the wife’s paramour in addition to the wife’s husband. For so many reasons that are difficult to detail, the child did not grow up in a stable family unit that would warrant protection.

With the above in mind, the Superior Court held that paternity by estoppel did not apply in this instance. The child had already become accustomed to a relationship with both his wife’s husband and his paramour. As a result, it would not be in the best interests of the child to deny the paramour’s request for a paternity test. The Superior Court held that the child was entitled to be a part of his biological father’s family and to explore his heritage if he chose to do so. It was in the child’s best interest to know for certain who his biological family was.

These kinds of cases are often very complex. If you or anyone you know would like to explore the issue of paternity or custody, please contact our office so that we can set up an appointment with any one of our highly qualified attorneys.

This blog summarizes the case of Kish v. Kish, 310 A.3d 789 (Pa.Super. 2024).