Can a Woman Father a Child?

Since H.A.N. was laid off from her job when the first child was born, Mother quickly returned to work, and H.A.N. cared for the child. Mother not surprisingly became incapacitated during her second pregnancy, the one with quadruplets. H.A.N. took care of all her needs. Following their birth, Mother returned to work, this time also completing a college degree, while H.A.N. again stayed home and cared for the children.

The parties separated during the fall of 1997, when the quadruplets were 4 years old, and the older boy was nearly 7. Thereafter, Mother was transferred to California, and moved there with all five children. Each party subsequently married.

In February 1998, H.A.N. made the apparent mistake of filing a complaint for custody of the children. In May 1998, Mother returned the favor by filing a complaint for child support. H.A.N. objected to the child-support complaint, alleging that Mother had no legal cause of action against her. The parties disputed the existence of a prior oral agreement regarding support and custody. While the support action was pending, the trial court entered an order granting shared legal custody of the children. The trial court also granted H.A.N. partial physical custody typical of those in long-distance relationships, and apparently awarded primary physical custody to Mother.

A Question of First Impression

The trial court found that H.A.N's conduct estopped her from denying that she was liable for child support. As H.A.N. phrased the question: 'Does a woman owe a duty of support to the children of her former lesbian partner?' The court considered this a question of first impression in Pennsylvania. It cited, but did not discuss, cases from New York, Karin T. v. Michael T., 127 Misc.2d 14, 484 N.Y.S.2d 780 (N.Y. Fam. Ct. 1985), and Washington State ex rel. D.R.M. v. Wood, 109 Wash. App. 182, 34 P. 3d 887 (2001), which it considered distinguishable for unspecified reasons.

The superior court noted that during the custody litigation, H.A.N. had established her in loco parentis status, which allowed her standing in the custody litigation, and through which she gained legal, as well as some physical custody. The superior court noted: 'Although H.A.N. has gained certain parental rights, she denies any obligation to provide the children financial support. 813 A.2d at 877, ' 7. Addressing the argument, the court noted that parents are statutorily responsible for the support of their children, and agreed that H.A.N. was not the biological or adoptive parent of these children.

Relying in part on H.A.N.'s seeking and receiving custody rights, the superior court affirmed the trial court's finding that H.A.N.'s conduct estopped her from claiming she owed no duty of support. Unlike a step-parent situation, H.A.N. did not enter into a relationship where a child already existed. Instead, she and Mother had jointly decided to create a family. As the court explained it, 'equity mandates that H.A.N. cannot maintain the status of in loco parentis to pursue [a custody] action as to the children, alleging she has acquired rights to them, and at the same time deny any obligation for support merely because there was no agreement to do so.' L.S.K., 813 A.2d at 878. ' 13.

Paternity by Estoppel

Courts around the country have been using estoppel to establish paternity. See 'Equitable Parentage,' by Paul Feinstein, The Matrimonial Strategist, May, 2003, pg 1. Pennsylvania recently revived the doctrine of paternity by estoppel in the face of the weakening presumption of paternity in marriage. Historically, if a woman became pregnant or gave birth while married, the husband was conclusively assumed to be the father. The only exceptions to that rule were situations in which the husband was impotent (or sterile) or there was a lack of access. Strauser v. Stahr, 556 Pa. 83, 88, 726 A. 2d 1052, 1054 (1999). 'Lack of access' meant that the parties were physically separated, making it impossible for them to have intercourse. Unless the presumption of paternity was overcome, the husband would conclusively be the legal father, and paternity testing would not be ordered.

Recognizing the reality (that married women can have children by men who are not their husbands) but not wanting to throw out the entire presumption of paternity doctrine, the Supreme Court of Pennsylvania has been taking steps to eliminate the doctrine gradually. In Brinkley v. King, 549 Pa. 241, 250-51, 701 A.2d 176, 181 (1997), a plurality limited the application of the presumption of paternity to 'any case where the policies that underlie the presumption [namely, the preservation of marriages] ' would be advanced by its application, and in other cases, it does not apply.' Strauser v. Stahr, 556 Pa. 83, 90, 726 A.2d 1052, 1055 (1999). If the marriage is intact through the pregnancy and beyond the birth of the child, the presumption would apply if there is no evidence of the husband's non-access or impotency. B.S. and R.S. v. T.M., 782 A.2d 1031,1035, 2001 Pa. Super 245 8 (2001). The purpose of the presumption is the preservation of the marriage of the husband and the mother of the child(ren). Where application of the presumption will not serve to help preserve a marriage, it will not apply. Id.

The weakening of the presumption of paternity has led to a broader application of the doctrine of paternity by estoppel. Where the presumption of paternity does not apply or is overcome, a husband will be estopped from denying paternity after separation or during divorce if either he or his wife holds the child out to be the child of the marriage. Weidman v. Weidman, 808 A.2d 576, 578, 2002 Pa. Super. 308 (2002), citing Fish v. Behers, 559 Pa. 523, 741 A.2d 721, 723 (1999). However, the doctrine of paternity by estoppel will not apply when evidence establishes that the [husband] failed to accept the child as his own by holding it out and/or supporting the child, citing Jones v. Trojak, 535 Pa. 95, 634 A.2d 201, 206 (1993). The court in Weidman found that the husband was estopped from denying paternity after the parties separated. For the first 2 years of the child's life, the husband had tried to do the right thing by accepting a child he knew was not his in an attempt to preserve the family unit. The husband had gone as far as having the child's name tattooed on his chest, along with those of his natural children of the marriage. Weidman, 808 A.2d at 577, 2002 Pa. Super 308, 3. Now it was being used against him.

Does DNA Testing Matter?

Even where DNA disproves paternity, a party's conduct will trump the scientific evidence. In the case of Warfield v. Warfield, 815 A.2d 1073, 2003 Pa Super 16 (Jan. 15, 2003), the parties agreed during divorce proceedings to paternity testing. Although the test results excluded the husband as father of the son, the husband acknowledged paternity of both children, and agreed to the entry of a support order for both children. The mother thereafter allegedly told the son that the husband was not his father, thereby weakening the father-son relationship. The court rejected the husband's argument that the mother had committed fraud by allegedly telling the son about his true paternity, after the husband acknowledged paternity in exchange for her promise not to disclose this information to the child. The court also rejected the husband's argument that the presumption of paternity should have applied to the mother's former husband, whose marriage was falling apart when the mother became pregnant.

Instead, the Warfield court found paternity by estoppel, buttressing its argument by noting the binding effect of an acknowledgment of paternity, pursuant to 23 Pa. C.S. ' 5103. The court stressed the finality of a parent's acceptance of paternity, quoting from Lynn v. Lynn, 2002 Pa Super 317 ' 8, 809 A.2d 927 (Oct. 15, 2002), the law does not allow a person to challenge his role as a parent once he has accepted it, even if he presents contrary DNA and blood tests.

It is not, however, impossible to defend against paternity by estoppel. In Moody v. Moody, 2003 Pa Super 142, 2003 WL 1826193 (April 9, 2003), all parties knew that the husband was not the biological father of the parties' daughter. He never held the daughter out as his own. However (apparently proceeding pro se), he signed a postnuptial agreement describing the daughter as a child of the marriage. He also executed an agreement for child support, which included support for the daughter in question, as well as the two sons, whose paternity was not in doubt. The husband executed both the postnuptial agreement and the support agreement, while claiming that the child was not his. Both the wife's attorney (who prepared the postnuptial agreement) and officials of the Domestic Relations Office (where the husband signed the support agreement) told the husband that he could not deny paternity because the child was born before the parties were divorced. Id. at 2. The superior court reversed the trial court's finding that the husband could not deny paternity, and held that neither res judicata nor estoppel applied because the husband was misrepresented by the officials at the Domestic Relations Office. Due both to a vasectomy, and lack of access, the husband was physically unable to father the child in question. He never held the child out as his own, and there was no intact marriage to protect.

Termination of Parental Rights

Termination of parental rights may not defeat estoppel. The court in DiPaolo v. Cugini, 811 A.2d 1053, 2002 Pa. Super 364 (2002), was faced with a situation where the husband's parental rights had been terminated by a New Jersey court with the wife's agreement after paternity tests excluded the husband as the natural father. The wife then sought child support from Cugini, the putative natural father. (The support action was actually by the State of New Jersey on behalf of the mother against the alleged natural father, a resident of Pennsylvania. The Uniform Interstate Family Support Act, 23 Pa. C.S. ” 7301-19, requires the application of Pennsylvania law, as the responding state.) Discarding the mother's argument that the best interest of the twin children required non-application of the estoppel, and relying on Fish v. Behers, 559 Pa. 523, 741 A.2d 721 (1999) and Freedman v. McCandless, 539 Pa. 684, 591-92, 654 A.2d 529, 532-33 (1995), the court said that the mother and husband lived together for 8 months after the birth, and that for 6 years they held the boys out as the husband's children. The court ruled it was the mother who made the boys fatherless by agreeing to terminate the husband's legal paternity. The decision in DiPaolo seems to stand for the proposition that estoppel is not avoided by an agreement that the husband is not the father of the children.

In Snyder v. Wyland, 2003 Pa Super 132, 2003 WL 1736198 (April 2, 2003), the mother and her parents tried to use the theory of paternity by estoppel to prevent a putative father from obtaining paternity testing, apparently as a prelude to exercising his custody rights. The mother and father were 16 and 17 years old when the child was born, and the mother's parents had effectively squeezed the father out of the picture. The court reaffirmed established authority that the mother's actions cannot create a presumption of paternity to squeeze the putative father out of the picture.

Conclusion

As we move toward an egalitarian society, the doctrine of paternity by estoppel will become equitable parentage, and will be applied to both sexes.

Lawrence W. Abel, Esq., practices in Philadelphia.

When can a woman become a father? According to the Superior Court of Pennsylvania, when she is a lesbian. In a recent case, the Pennsylvania Superior Court applied estoppel to impose child support obligations on a woman who 'fathered' five children. Specifically, the court affirmed an order requiring the woman to pay child support to her former lesbian partner after she sought and won custody rights to the children born during their relationship. L.S.K. v. H.A.N , 813 A.2d 872, 2002 Pa. Super. 390 (2002). Noting that H.A.N. had acted as a co-parent with L.S.K. for years, the court required her to pay child support.

Facts Behind the Case

The two women, L.S.K. (Mother) and H.A.N., were involved in a relationship for more than a decade. During that time, they decided to have children together. Mother was twice artificially inseminated with sperm from anonymous donors who relinquished all parental rights. Mother had a total of five children from the two pregnancies, one from the first, and four from the second. The parties had intended for H.A.N. to be inseminated the second time, but she was unable to conceive.

Since H.A.N. was laid off from her job when the first child was born, Mother quickly returned to work, and H.A.N. cared for the child. Mother not surprisingly became incapacitated during her second pregnancy, the one with quadruplets. H.A.N. took care of all her needs. Following their birth, Mother returned to work, this time also completing a college degree, while H.A.N. again stayed home and cared for the children.

The parties separated during the fall of 1997, when the quadruplets were 4 years old, and the older boy was nearly 7. Thereafter, Mother was transferred to California, and moved there with all five children. Each party subsequently married.

In February 1998, H.A.N. made the apparent mistake of filing a complaint for custody of the children. In May 1998, Mother returned the favor by filing a complaint for child support. H.A.N. objected to the child-support complaint, alleging that Mother had no legal cause of action against her. The parties disputed the existence of a prior oral agreement regarding support and custody. While the support action was pending, the trial court entered an order granting shared legal custody of the children. The trial court also granted H.A.N. partial physical custody typical of those in long-distance relationships, and apparently awarded primary physical custody to Mother.

A Question of First Impression

The trial court found that H.A.N's conduct estopped her from denying that she was liable for child support. As H.A.N. phrased the question: 'Does a woman owe a duty of support to the children of her former lesbian partner?' The court considered this a question of first impression in Pennsylvania. It cited, but did not discuss, cases from New York, Karin T. v. Michael T. , 127 Misc.2d 14, 484 N.Y.S.2d 780 (N.Y. Fam. Ct. 1985), and Washington State ex rel. D.R.M. v. Wood , 109 Wash. App. 182, 34 P. 3d 887 (2001), which it considered distinguishable for unspecified reasons.

The superior court noted that during the custody litigation, H.A.N. had established her in loco parentis status, which allowed her standing in the custody litigation, and through which she gained legal, as well as some physical custody. The superior court noted: 'Although H.A.N. has gained certain parental rights, she denies any obligation to provide the children financial support. 813 A.2d at 877, ' 7. Addressing the argument, the court noted that parents are statutorily responsible for the support of their children, and agreed that H.A.N. was not the biological or adoptive parent of these children.

Relying in part on H.A.N.'s seeking and receiving custody rights, the superior court affirmed the trial court's finding that H.A.N.'s conduct estopped her from claiming she owed no duty of support. Unlike a step-parent situation, H.A.N. did not enter into a relationship where a child already existed. Instead, she and Mother had jointly decided to create a family. As the court explained it, 'equity mandates that H.A.N. cannot maintain the status of in loco parentis to pursue [a custody] action as to the children, alleging she has acquired rights to them, and at the same time deny any obligation for support merely because there was no agreement to do so.' L.S.K., 813 A.2d at 878. ' 13.

Paternity by Estoppel

Courts around the country have been using estoppel to establish paternity. See 'Equitable Parentage,' by Paul Feinstein, The Matrimonial Strategist, May, 2003, pg 1. Pennsylvania recently revived the doctrine of paternity by estoppel in the face of the weakening presumption of paternity in marriage. Historically, if a woman became pregnant or gave birth while married, the husband was conclusively assumed to be the father. The only exceptions to that rule were situations in which the husband was impotent (or sterile) or there was a lack of access. Strauser v. Stahr , 556 Pa. 83, 88, 726 A. 2d 1052, 1054 (1999). 'Lack of access' meant that the parties were physically separated, making it impossible for them to have intercourse. Unless the presumption of paternity was overcome, the husband would conclusively be the legal father, and paternity testing would not be ordered.

Recognizing the reality (that married women can have children by men who are not their husbands) but not wanting to throw out the entire presumption of paternity doctrine, the Supreme Court of Pennsylvania has been taking steps to eliminate the doctrine gradually. In Brinkley v. King, 549 Pa. 241, 250-51, 701 A.2d 176, 181 (1997), a plurality limited the application of the presumption of paternity to 'any case where the policies that underlie the presumption [namely, the preservation of marriages] ' would be advanced by its application, and in other cases, it does not apply.' Strauser v. Stahr , 556 Pa. 83, 90, 726 A.2d 1052, 1055 (1999). If the marriage is intact through the pregnancy and beyond the birth of the child, the presumption would apply if there is no evidence of the husband's non-access or impotency. B.S. and R.S. v. T.M. , 782 A.2d 1031,1035, 2001 Pa. Super 245 8 (2001). The purpose of the presumption is the preservation of the marriage of the husband and the mother of the child(ren). Where application of the presumption will not serve to help preserve a marriage, it will not apply. Id.

The weakening of the presumption of paternity has led to a broader application of the doctrine of paternity by estoppel. Where the presumption of paternity does not apply or is overcome, a husband will be estopped from denying paternity after separation or during divorce if either he or his wife holds the child out to be the child of the marriage. Weidman v. Weidman , 808 A.2d 576, 578, 2002 Pa. Super. 308 (2002), citing Fish v. Behers , 559 Pa. 523, 741 A.2d 721, 723 (1999). However, the doctrine of paternity by estoppel will not apply when evidence establishes that the [husband] failed to accept the child as his own by holding it out and/or supporting the child, citing Jones v. Trojak , 535 Pa. 95, 634 A.2d 201, 206 (1993). The court in Weidman found that the husband was estopped from denying paternity after the parties separated. For the first 2 years of the child's life, the husband had tried to do the right thing by accepting a child he knew was not his in an attempt to preserve the family unit. The husband had gone as far as having the child's name tattooed on his chest, along with those of his natural children of the marriage. Weidman, 808 A.2d at 577, 2002 Pa. Super 308, 3. Now it was being used against him.

Does DNA Testing Matter?

Even where DNA disproves paternity, a party's conduct will trump the scientific evidence. In the case of Warfield v. Warfield , 815 A.2d 1073, 2003 Pa Super 16 (Jan. 15, 2003), the parties agreed during divorce proceedings to paternity testing. Although the test results excluded the husband as father of the son, the husband acknowledged paternity of both children, and agreed to the entry of a support order for both children. The mother thereafter allegedly told the son that the husband was not his father, thereby weakening the father-son relationship. The court rejected the husband's argument that the mother had committed fraud by allegedly telling the son about his true paternity, after the husband acknowledged paternity in exchange for her promise not to disclose this information to the child. The court also rejected the husband's argument that the presumption of paternity should have applied to the mother's former husband, whose marriage was falling apart when the mother became pregnant.

Instead, the Warfield court found paternity by estoppel, buttressing its argument by noting the binding effect of an acknowledgment of paternity, pursuant to 23 Pa. C.S. ' 5103. The court stressed the finality of a parent's acceptance of paternity, quoting from Lynn v. Lynn, 2002 Pa Super 317 ' 8, 809 A.2d 927 (Oct. 15, 2002), the law does not allow a person to challenge his role as a parent once he has accepted it, even if he presents contrary DNA and blood tests.

It is not, however, impossible to defend against paternity by estoppel. In Moody v. Moody, 2003 Pa Super 142, 2003 WL 1826193 (April 9, 2003), all parties knew that the husband was not the biological father of the parties' daughter. He never held the daughter out as his own. However (apparently proceeding pro se), he signed a postnuptial agreement describing the daughter as a child of the marriage. He also executed an agreement for child support, which included support for the daughter in question, as well as the two sons, whose paternity was not in doubt. The husband executed both the postnuptial agreement and the support agreement, while claiming that the child was not his. Both the wife's attorney (who prepared the postnuptial agreement) and officials of the Domestic Relations Office (where the husband signed the support agreement) told the husband that he could not deny paternity because the child was born before the parties were divorced. Id. at 2. The superior court reversed the trial court's finding that the husband could not deny paternity, and held that neither res judicata nor estoppel applied because the husband was misrepresented by the officials at the Domestic Relations Office. Due both to a vasectomy, and lack of access, the husband was physically unable to father the child in question. He never held the child out as his own, and there was no intact marriage to protect.

Termination of Parental Rights

Termination of parental rights may not defeat estoppel. The court in DiPaolo v. Cugini , 811 A.2d 1053, 2002 Pa. Super 364 (2002), was faced with a situation where the husband's parental rights had been terminated by a New Jersey court with the wife's agreement after paternity tests excluded the husband as the natural father. The wife then sought child support from Cugini, the putative natural father. (The support action was actually by the State of New Jersey on behalf of the mother against the alleged natural father, a resident of Pennsylvania. The Uniform Interstate Family Support Act, 23 Pa. C.S. ” 7301-19, requires the application of Pennsylvania law, as the responding state.) Discarding the mother's argument that the best interest of the twin children required non-application of the estoppel, and relying on Fish v. Behers , 559 Pa. 523, 741 A.2d 721 (1999) and Freedman v. McCandless , 539 Pa. 684, 591-92, 654 A.2d 529, 532-33 (1995), the court said that the mother and husband lived together for 8 months after the birth, and that for 6 years they held the boys out as the husband's children. The court ruled it was the mother who made the boys fatherless by agreeing to terminate the husband's legal paternity. The decision in DiPaolo seems to stand for the proposition that estoppel is not avoided by an agreement that the husband is not the father of the children.

In Snyder v. Wyland, 2003 Pa Super 132, 2003 WL 1736198 (April 2, 2003), the mother and her parents tried to use the theory of paternity by estoppel to prevent a putative father from obtaining paternity testing, apparently as a prelude to exercising his custody rights. The mother and father were 16 and 17 years old when the child was born, and the mother's parents had effectively squeezed the father out of the picture. The court reaffirmed established authority that the mother's actions cannot create a presumption of paternity to squeeze the putative father out of the picture.

Conclusion

As we move toward an egalitarian society, the doctrine of paternity by estoppel will become equitable parentage, and will be applied to both sexes.

Lawrence W. Abel, Esq., practices in Philadelphia.