B.C. v. C.P. ( 2023 )

J-A25005-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
B.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
C.P. AND D.B. :
:
Appellants : No. 515 WDA 2022
Appeal from the Order Entered April 18, 2022,
in the Court of Common Pleas of Westmoreland County,
Domestic Relations at No(s): No. 1494 of 2021-D.
BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: JANUARY 6, 2023
Appellant C.P. (Mother), and her husband Appellant D.B. (Husband),
appeal from the order issued by the Westmoreland County Court of Common
Pleas, which granted the request of Appellee B.C. (Mother’s Former Boyfriend)
to have the Mother’s Child genetically tested to establish paternity. Mother
and Husband argue that the presumption of paternity precludes an order for
genetic testing. Alternatively, they argue that the doctrine of paternity by
estoppel precludes such an order. After careful review, we affirm.
The record discloses the following factual and procedural history:
Mother and Husband married in September 2016. In 2017, Mother sought
addiction treatment at the Greenbriar Treatment Center. There, she met
Former Boyfriend, who was also seeking help. Mother and Former Boyfriend
began communicating in Spring 2018 through social media. In July 2018,
J-A25005-22
Mother and Husband separated; Mother remained in the marital residence,
while Husband moved out.
Former Boyfriend went to Mother’s residence three times in October
2018. During at least one of these occasions, Former Boyfriend and Mother
had unprotected sex. Soon thereafter, Mother and Husband had rekindled
their relationship; Mother does not remember the exact date, but they also
had unprotected sex in late October 2018. On November 4, 2018, Mother and
Husband reconciled, and Husband moved back into the marital residence.
Mother did not experience pregnancy symptoms until March 2019. She
could not pinpoint when the Child was conceived. While a typical nine-month
pregnancy meant that the Child was conceived in September 2018, Mother
stated she was not intimate with anyone during that time. While the Child
had a low birth weight, there was no other indication that the Child was born
prematurely.
When Mother discovered she was pregnant, she told Husband that the
Child was his. In Spring 2019, Former Boyfriend discovered through social
media that Mother was pregnant. At that time, Mother told Former Boyfriend
that the Child was not his. During Mother’s pregnancy, Husband went to all
prenatal appointments and assumed the duties of an expectant father. When
the Child was born in June 2019, Husband was listed as the father on the
Child’s birth certificate.
After the birth, Mother began going to Former Boyfriend’s home with
the Child. In August 2019, Mother told Former Boyfriend that he was the
-2-
J-A25005-22
biological father. Former Boyfriend began seeing the Child on a weekly basis.
He would also babysit while Mother worked long shifts as a nurse. Mother and
Husband separated again, and Mother and the Child moved in with Former
Boyfriend in March or April 2020.
While living together, Mother told Former Boyfriend’s friends and family
that he was the father. Former Boyfriend assumed the parental and financial
duties. Mother traveled from Former Boyfriend’s residence on the weekends
to allow Husband to see the Child. Former Boyfriend did not object to Mother
doing this, because Former Boyfriend felt sympathy toward Husband. Former
Boyfriend thought that Mother had told Husband that Husband was not the
father. Former Boyfriend thought Husband was distraught.
The relationship between Mother and Former Boyfriend ended in August
2020, after Former Boyfriend assaulted Mother.1 The last time Former
Boyfriend saw the Child was in November 2020, when Mother brought the
Child to visit him in a rehabilitation center.
Between August 2020 and January 2021, Mother and Husband had
reconciled, separated, and then reconciled again. Husband filed for divorce,
and a custody order was entered awarding shared custody to Mother and
Husband. Former Boyfriend said he did not seek custody during this time,
because he was still receiving in-patient care at the rehabilitation center.
____________________________________________
1 Boyfriend pleaded no contest to the assault in December 2021.
-3-
J-A25005-22
Husband and Mother ultimately chose not to proceed with the divorce, and
they remain together.
On August 27, 2021, Former Boyfriend filed a complaint to establish
paternity for genetic testing of the Child. On October 14, 2021, Mother and
Husband filed an answer and new matter, seeking to dismiss the complaint
with prejudice, based on the presumption of paternity. The trial court
conducted a hearing on April 11, 2022, during which Former Boyfriend
appeared pro se.
The trial court ruled that the presumption of paternity does not apply,
notwithstanding the fact that Mother and Husband are still married. The court
ruled further that they were not entitled to relief under the doctrine of
paternity by estoppel. Thus, the court denied the Mother and Husband’s
motion to dismiss and ordered the parties and the Child to appear at the
domestic relations office for paternity testing.
Mother and Husband timely appealed. They present the following issues
for our review:
1. Whether the trial court erred in failing or refusing to
apply the presumption of paternity and/or finding that
it is rebuttable, where the law and facts clearly
demonstrate that the presumption applies in the case?
2. Whether the trial court misinterpreted or misapplied
the law in failing to apply the paternity by estoppel
doctrine to prevent [Former Boyfriend] from asserting
his paternity claim?
Mother and Husband’s Brief at 6.
-4-
J-A25005-22
We review orders directing or denying genetic testing for an abuse of
discretion. See Barr v. Bartolo, 927 A.2d 635, 639 (Pa. Super. 2007). “For
our purposes, an abuse of discretion requires proof of more than a mere error
of judgment, but rather evidence that the law was misapplied or overridden,
or that the judgment was manifestly unreasonable or based on bias, ill will,
prejudice or partiality.” Id. (citations omitted); see also K.E.M. v. P.C.S., 38
A.3d 798, 803 (Pa. 2012). Additionally, “it is well-settled that the trial court,
sitting as factfinder, weighs the evidence and assesses credibility. Thus, the
court ‘is free to believe all, part, or none of the evidence, and we, as an
appellate court, will not disturb the credibility determinations of the court
below.’” DeRosa v. Gordon, -- A.3d --, 2022 WL 17099037 at *4 (Pa. Super.
November 22, 2022) (citing Vargo v. Schwartz, 940 A.2d 459, 462 (Pa.
Super. 2007) (brackets omitted)).
The legal determination of paternity of a child conceived or born during
marriage derives from common law. The presumption of paternity and the
doctrine of estoppel embody “the two great fictions of the law of paternity:
the presumption of paternity embodies the fiction that regardless of biology,
the married people to whom the child was born are the parents; and the
doctrine of estoppel embodies the fiction that, regardless of biology, in the
absence of a marriage, the person who has cared for the child is the parent.”
-5-
J-A25005-22
Brinkley v. King, 701 A.2d 176, 180 (Pa. 1997) (Opinion Announcing the
Judgment of the Court).2
In Brinkley, a divided Supreme Court grappled with the modernization
of this jurisprudence. The Plurality identified a legal framework to resolve
these issues:
[T]he essential legal analysis in these cases is twofold: first, one
considers whether the presumption of paternity applies to a
particular case. If it does, one then considers whether the
presumption has been rebutted. Second, if the presumption has
been rebutted or is inapplicable, one then questions whether
estoppel applies. Estoppel may bar either a plaintiff from making
the claim or a defendant from denying paternity.
Brinkley, 701 A.2d at 180.
Beginning the first inquiry, we must determine whether the presumption
applies here. The trial court ruled that it does not. In their first appellate
issue, Mother and Husband challenge this determination.
Initially, we observe the purpose of the presumption. “The policy
underlying the presumption of paternity is the preservation of marriages. The
____________________________________________
As Justice Newman explained in a concurring and dissenting opinion:
It has long been the law in Pennsylvania that a child born to
a married woman is presumed to be a child of the marriage.
This presumption arose (a) to protect marital integrity and
(b) to prevent a child from being labeled a “bastard” child,
a classification that carried both a social and a legal stigma.
Modern laws, however, have erased the legal stigma of
children born out of wedlock, hence depriving the
presumption of one of its original purposes.
Brinkley, 791 A.2d at 258 (Newman, J., Concurring)
-6-
J-A25005-22
presumption only applies in cases where that policy would be advanced by the
application; otherwise, it does not apply.” Fish v. Behers, 741 A.2d 721, 723
(Pa. 1999) (citing Brinkley, 701 A.2d at 181); see also J.L. v. A.L., 205
A.3d 347 (Pa. Super. 2019). “Although the presumption may be rebutted by
clear and convincing evidence of a husband’s non-access, impotency, or
sterility, the presumption is irrebuttable where the mother, the child, and the
husband live together as an intact family and husband assumes parental
responsibility for the child.” B.S. v. T.M., 782 A.2d 1031, 1034 (Pa. Super.
2001) (citations omitted); see also Strauser v. Stahr, 726 A.2d 1052, 1055-
56 (Pa. 1999).
As applied here, Mother and Husband argue that the presumption of
paternity applies, because the Child was born during the marriage and
because the family is intact. Although they recognize the changes in
jurisprudence commensurate with the changes in attitudes, they argue that
situations still exist, where the presumption of paternity retains its “traditional
iron clad status.” See Mother and Husband’s Brief at 19.
For support, Mother and Husband rely on our Supreme Court’s decision
in Strauser, supra. There, the trial court ordered a paternity test; this Court
reversed, and our Supreme Court affirmed our decision. The High Court
concluded the presumption applied, because the mother and her husband
were still married:
Indeed, despite all the marital difficulties that they have
encountered, [m]other and [h]usband have never
separated. Instead, they have chosen to preserve their
-7-
J-A25005-22
marriage and to raise as a family the three children born to
them, including [the subject child, whose paternity was at
issue].
Strauser, at 726 A.2d at 1055; see also John M. v. Paula T., 571 A.2d
1380, 1386 (Pa. 1951).
At first glance, we note several similarities between Strauser and the
instant case. In both matters, the mother had sexual relations with both
prospective fathers around the time of conception. In both matters, the
mother had, at one point, held the non-spouse out as the child’s biological
father and encouraged their relationship. Additionally, in both matters, the
husband displayed varying levels of acquiescence regarding the relationship
between the mother and the non-spouse, as well as the relationship between
child and the non-spouse. See generally Trial Court Opinion (T.C.O.),
5/23/22, at *1-5 (not paginated), cf. Strauser, 726 A.2d. at 1053.
But there is one critical distinction between Strauser and the present
appeal. In Strauser, the High Court observed that the mother and the
husband “never separated.” Strauser, 726 A.2d. at 1053, 1055. Their
marriage (and thus their family unit) had always remained intact. As a result,
the High Court determined that their marriage warranted the protection of the
presumption of paternity – and perhaps especially so, in light of the fact that
the mother and the husband had two other children together. The Court
concluded that the Commonwealth’s interest in protecting the “basic and
foundational unit of the family” meant that the presumption applied. Id.
(quoting John M., 571 A.2d at 1386).
-8-
J-A25005-22
Here, by contrast, Mother and Husband separated on three occasions,
including when the Child was conceived.3 This was a critical factor for the trial
court. See T.C.O. at *6-8 (citing B.S. v. T.M., 782 A.2d 1031 (Pa. Super.
2001) and J.L. v. A.L., 205 A.3d 347 (Pa. Super. 2019)).
In order for us to decide whether the presumption of paternity applies,
we must first determine the legal significance of Mother and Husband’s history
of separation. Had Mother and Husband proceeded with their divorce, the
answer would be obvious; the presumption would not apply since there would
no longer be “an intact family or a marriage to preserve.” Fish, 741 A.2d at
723 (concluding that the presumption did not apply when the parties had
divorced). Similarly, had the parties remained separated, even if they had
not finalized their divorce, we would still be inclined to conclude that the
presumption did not apply. See, e.g., T.L.F. v. D.W.T., 796 A.2d 358 (Pa.
Super. 2002); Vargo v. Schwartz, 940 A.2d 459 (Pa. Super. 2007).
However, Mother and Husband separated several times, but ultimately
reconciled and remained together at the time of the litigation. To determine
whether this separation impacts the presumption, we are guided by the
following precedents.
First, in B.S. v. T.M., 782 A.2d 1031 (Pa. Super. 2001), the trial court
determined that the presumption of paternity did not apply, notwithstanding
____________________________________________
3 We note that the Divorce Code generally does not categorize a post-
separation sexual relationship as “marital misconduct.” See, e.g., S.M.C. v.
W.P.C., 44 A.3d 1181, 1186 (Pa. Super. 2012) (citing Jayne v. Jayne, 663
A.2d 169, 173 (Pa. Super. 1995)).
-9-
J-A25005-22
the fact that the mother and the husband were in an intact family. The trial
court in B.S. reached this decision for a few reasons: 1) there was no real
dispute that the third-party was the biological father; 2) that the third-party’s
custody petition would not harm the marriage (“this hellish marital situation
has already occurred” and “[t]his marriage will succeed or perhaps fail with or
without the application of the presumption”); and 3) application of the
presumption could have a “deleterious effect” on the family if the child finds
out years later that the truth was different from what she was led to believe.
See generally B.S., 782 A.2d at 1036-37.
On appeal, this Court observed that paternity cases “fall on their unique
set of facts.” B.S., 782 A.2d. at 1037. Ultimately, we held that because the
marital couple separated for a whole year, the presumption did not apply.
“[The marital couple] voluntarily gave up the benefit of the presumption for
approximately one year after which they claimed the benefits of its existence
for the first time.” Id. In reaching this conclusion, we explicitly distinguished
Strauser. We noted the marital couple in Strauser “remained intact at all
times.” Id. at 1036. By contrast, in B.S., the mother and the husband
separated, during which time she began a romantic relationship with a third-
party. The mother also filed a divorce complaint, which she eventually
withdrew. Id. at 1033.
A few years later, in E.W. v. T.S., 916 A.2d 1197, 1201 (Pa. Super.
2007), we concluded that the presumption applied, because like in Strauser,
- 10 -
J-A25005-22
the marital couple never separated. E.W., 916 A.2d at 1201 (citing Strauser,
726 A.2d. at 1055). We explained:
Contrasting the facts found by the trial court in B.S. with
those found by the trial court in the instant case [(E.W.)]
reveals a distinction that cannot be reconciled. Here, [the
mother] did not move out of the marital home seeking to
establish living quarters with [the third-party], nor was a
divorce complaint filed. Moreover [the husband] fulfilled all
the duties of a father in connection with the birth and
religious rites. And most telling as the court found
based upon the evidence, [the marital couple] did not
separate. Accordingly, we are compelled to conclude that
the situation here is sufficiently distinct from that in B.S.
and we, therefore, conclude that the trial court’s application
of the presumption of paternity was proper.
E.W., 916 A.2d at 1204 (emphasis added).
In B.S. and E.W., we reached opposite conclusions with respect to the
applicability of the presumption. But in both cases, we investigated whether
the respective marital couple stayed together or separated, to answer the
larger question of whether the presumption would advance the policy of
preserving marriages and intact families.
More recently, we concluded a mother who separated from her spouse
could not use the presumption as shield to defeat a third-party’s custody
complaint. See J.L. v. A.L., 205 A.3d 347 (Pa. Super. 2019). In J.L., the
married couple separated, and the mother obtained a separate residence.
J.L., 205 A.3d at 357. Although a divorce complaint was never filed, the
mother had considered divorce on numerous occasions. Id. The trial court
ultimately concluded that mother only sought to use the presumption as a
- 11 -
J-A25005-22
shield to defeat the third-party’s custody complaint. See generally id. at
356-57. On appeal, we noted that presumptions do not automatically apply
to cases involving a married couple. We concluded, as in B.S., that the couple
had voluntarily given up the benefit of the presumption during their
separation.
Although our Supreme Court has not specifically addressed this Court’s
emphasis on marital separation as a basis for finding the presumption
inapplicable, in 2012, the High Court acknowledged that the “legal fictions
perpetuated through the years…[still] retain their greatest force where there
is truly an intact family attempting to defend itself against third-party
intervention.” K.E.M. v. P.C.S., 38 A.3d 798, 809 (Pa. 2012).4
We note that the application of these legal fictions has never been as
mechanical as Mother and Husband claim. Even in Brinkley, the polestar of
our modern jurisprudence on the presumption of paternity, recognized:
It remains to consider how one knows whether the
presumption applies in any given case. Traditionally, the
answer to this question has been that the presumption
applies if the child was conceived or born during the
marriage. We now question the wisdom of this application
of the presumption because the nature of male-female
relationships appears to have changed dramatically since
the presumption was created. […] Today, however,
separation, divorce, and children born during marriage to
____________________________________________
4 In K.E.M., the Supreme Court explicitly noted that its case concerned
paternity by estoppel, not the presumption of paternity. Nonetheless, in a
general sense, the Court alluded to the “trend in the decisional law to narrow
the concept of an ‘intact marriage’ and, correspondingly, the application of the
presumption.” See K.E.M., 38 A.3d at 805 (addressing the arguments of the
appellee).
- 12 -
J-A25005-22
third party fathers is relatively common, and it is
considerably less apparent that application of the
presumption to all cases in which the child was
conceived or born during the marriage is fair.”
Brinkley, 701 A.2d at 181 (Plurality) (emphasis added).
Returning to the instant matter, the trial court found that the
presumption did not apply, because their marriage was not in need of
protection. The court reasoned that, like in B.S., the couple’s marital difficulty
was “water under the bridge” and that their marriage “will succeed or perhaps
fail with or without the application of the presumption.” See T.C.O. at *7, *8
(quoting B.S., 782 A.2d at 1037). In fact, here, Mother and Husband
acknowledged that the circumstances of this case only made their marriage
stronger. Husband also acknowledged that Mother and Former Boyfriend were
together for at least four months in 2020 – after the Child’s birth – and that
Mother was intimate with Former Boyfriend shortly before being intimate with
him in October 2018. “With all of this information in mind, Husband indicated
that he still wants to be married to Mother.” Id. at *7-8. The court noted that
the Mother and Husband do not plan on separating again, regardless of the
outcome of the litigation and genetic testing. As such, the paternity test would
merely confirm or disprove what the parties have likely considered to be a
very real possibility. Id. at *8.
On appeal, Mother and Husband cite to various aspects of our
aforementioned precedents to distinguish or analogize their case. But the
common factor in all of these cases was whether the marital couple had
- 13 -
J-A25005-22
separated. The presumption only applied when the marital couple never
separated, then the family has remained intact. “The public policy in support
of the presumption…was ‘the concern that marriages which function as family
units should not be destroyed by disputes over the parentage of children
conceived or born during the marriage.’ Thus, ‘third parties should not be
allowed to attack the integrity of a functioning marital unit[.]’” Strauser, 726
A.2d at 1054 (quoting Brinkley, 701 A.2d at 180). But where the marital
couple separated and the family did not remain intact, the marriage did not
warrant the protections afforded by the presumption. See B.S.; J.L., supra.Here, the Child was conceived while the marital couple was separated.
After the Child’s birth, the couple separated two more times. Importantly,
during one of these separations, Mother lived with Former Boyfriend and held
him out as the father.5 It’s not merely that Mother and Husband separated;
it’s that during this separation, Mother lived with Former Boyfriend and raised
the Child together. At that point, Mother and Husband “gave up the benefit
of the presumption.” See B.S., 782 A.2d at 1037. Therefore, on these facts,
we conclude that the trial court was within its discretion when it found that
presumption of paternity does not apply. Mother and Husband’s first appellate
issue is without merit.
____________________________________________
5 Mother testified she did not remember if she told Former Boyfriend, or his
family, that he was the father. Mother testified that she has memory issues
due to her epilepsy diagnoses and medications for the same. The trial court
explicitly found Mother’s testimony lacked credibility. See T.C.O. at 4, ¶¶ 28-
29. We cannot disturb a trial court’s credibility finding. See DeRosa, -- A.3d
--, 2022 WL 17099037 at *4.
- 14 -
J-A25005-22
We turn now to Mother and Husband’s second appellate issue that
Former Boyfriend is estopped from seeking a paternity test. The trial court
determined that the doctrine of paternity by estoppel also does not apply in
this case.
This Court has explained that estoppel:
is merely the legal determination that because of a person's
conduct (e.g., holding the child out as his own or supporting
the child), that person, regardless of his true biological
status, will not be permitted to deny parentage. ... [T]he
law will not permit a person in these situations to challenge
the status that he or she has previously accepted. The
doctrine of paternity by estoppel seeks to protect the
interests of the child.
Estoppel is based on the public policy that children should
be secure in knowing who their parents are. If a certain
person has acted as the parent and bonded with the child,
the child should not be required to suffer the potentially
damaging trauma that may come from being told that the
father [s]he had known all [her] life is not in fact [her]
father.
[O]ur Supreme Court recently considered the continuing
applicability of the doctrine and held that it is the interests
of the child that are paramount: “paternity by estoppel
continues to pertain in Pennsylvania, but it will apply only
where it can be shown, on a developed record, that it is in
the best interests of the involved child.” K.E.M. v. P.C.S.,
38 A.3d 798, 810 (Pa. 2012).
T.E.B. v. C.A.B., 74 A.3d 170, 173-74 (Pa. Super. 2013) (some quotation
marks and citations omitted).
“Where [paternity by] estoppel is applied, blood tests may be irrelevant,
for the law will not permit a person in estoppel situations to challenge the
status which he or she has previously accepted. Only when estoppel does not
- 15 -
J-A25005-22
apply will blood tests be ordered.” D.M. v. V.B., 87 A.3d 323, 327 (Pa. Super.
2014) (citing Freedman v. McCandless, 654 A.2d 529, 532 (Pa. 1995)).
While the estoppel doctrine most often appears in the context of a child
support matter, its application is not limited to those situations. The doctrine
“also can serve to preclude a [(purported)] biological father from asserting his
parental rights.” T.E.B., 74 A.3d at 174; see also DeRosa, supra; and see
C.T.D. v. N.E.E., 653 A.2d 28 (Pa. Super. 1995).
In C.T.D., a third-party sought to bring a paternity claim against the
mother and her husband. When the child was conceived, she was seeing the
third-party and the husband (although the mother and the husband were not
yet married at the time). After the birth, the mother and the husband married
and raised the child together. Eventually, the husband was named as the
father on the child’s birth certificate. The marital couple held the husband out
as the father. A third-party then filed a paternity claim. We concluded that
the actions of the marital couple did not estop the third-party from bringing
the claim. “While it is clear that paternity by estoppel could be applied to
preclude either [the husband] or [the mother] from challenging [the
husband’s] paternity, we find no support for the argument that their actions
can estop [the third-party] from asserting his alleged paternity.” Instead, we
concluded that the third-party’s own failure to act during the child’s’ first two
years of life may have effectively estopped him from raising his claim of
paternity. C.T.D., 653 A.2d at 31. We remanded for the trial court to make
that determination.
- 16 -
J-A25005-22
Similarly, in B.K.B. v. J.G.K., 954 A.2d 630, 638 (Pa. Super. 2008), this
Court found that the purported father was estopped from bringing a paternity
claim, where he had known about his alleged paternity since the child was
conceived, but allowed the relationship between the child and another man to
flourish for nine years.
Instantly, the trial court found that, like in C.T.D., Mother and Husband’s
actions had little bearing on whether the Former Boyfriend could bring a
paternity claim. See T.C.O. at *10. Rather, the court believed the more
appropriate question was whether Former Boyfriend’s own actions estopped
him from asserting his parental claim at this stage in the Child’s life. The court
found that the Former Boyfriend’s actions did not prevent him from asserting
the claim.
We find not abuse of discretion. When Mother told the Former Boyfriend
that he was the father, the Former Boyfriend began holding himself out as
such. After the romantic relationship ended between Mother and Former
Boyfriend, he petitioned for genetic testing. We note that approximately ten
months elapsed between the last time Former Boyfriend saw the Child and his
petition. However, the trial court was satisfied by Former Boyfriend’s
testimony that he would have petitioned sooner, but he was undergoing in-
patient rehabilitation. Id. at 11.
We are not persuaded by Mother’s argument that she also held Husband
out as the Child’s father. If anything, she told both men that they were the
biological father, perhaps during the same time period. Likewise, we are also
- 17 -
J-A25005-22
not persuaded by Husband’s argument that he always thought that he was
the biological father. This argument might be relevant in a different set of
circumstances – i.e., to estop Mother from denying Husband’s paternity claim.
But Husband’s argument is not particularly relevant in this context, where an
alleged third-party is seeking to establish paternity.
As our Supreme Court held, paternity by estoppel continues to exist in
Pennsylvania, “but it will apply only where it can be shown, on a developed
record, that it is in the best interests of the involved child.” K.E.M., 38 A.3d
at 810. Here, the trial court ultimately concluded that “the underlying policy
concerns regarding the doctrine of estoppel are not present in this case.” See
T.C.O. at 12. For this reason, we conclude that it was within the trial court’s
discretion to conclude that the doctrine of estoppel does not apply in this case.
Mother and Husband’s second issue is without merit.
In sum, we conclude that the trial court did not abuse its discretion when
it granted Former Boyfriend’s request for genetic testing. The presumption of
paternity does not apply, because the marital couple was separated at the
time of conception, and again after the birth of the Child, at which time Mother
lived with Former Boyfriend and raised the Child with him. Also, the trial court
was within its discretion to conclude that Former Boyfriend’s actions did not
estop him from bringing a paternity claim. Former Boyfriend waited less than
a year and was partially delayed by his in-patient treatment.
Order affirmed.
- 18 -
J-A25005-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2023
- 19 -