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J-A12024-01
2001 PA Super 332
CW,
:
IN THE SUPERIOR COURT OF
Appellant
:
PENNSYLVANIA
:
v.
:
:
LV and GV,
:
Appellees
:
No. 803 WDA 2000
Appeal from the Order entered April 18, 2000,
in the Court of Common Pleas of Allegheny County,
Civil No. FD 98-9128-002
BEFORE:
DEL SOLE, P.J., EAKIN and BROSKY, JJ.
OPINION BY EAKIN, J.:
Filed: November 26, 2001
¶ 1
CW appeals from the order granting the preliminary objections of GV
and dismissing CW's custody complaint. We affirm.
¶ 2
The trial court has set forth the facts:
CW filed a complaint for partial custody on June 19, 1998, after
claiming that LV, Defendant, hereinafter "Mother", was no longer
allowing him to see BV, date of birth 9/1/88, hereinafter "Child".
Mother filed an answer to Complaint for Partial Custody on [sic]
August 6, 1998, denying CW's allegations that he is the father of
Child and asserting that the Father is GV to whom she was
married when the Child was born. Mother further denies that
the Child has spent any significant time with CW. Subsequently,
CW and Mother participated in the Generations Program. 1 On
November 5, 1998, since the parties completed mediation and
custody was not resolved[,] a custody conciliation was scheduled
before the custody conciliator on January 14, 1999. On said
date the parties were unable to reach an agreement due to the
issue of paternity. The case was, in turn, set for conciliation
before this member of the court on March 8, 1999.
Father petitioned the court to enter an appearance and leave to
file preliminary objections and contest jurisdiction on March 30,
1999. The court granted the petition and Father filed his

1 Generations is the Allegheny County education/mediation-orientation
program which each party in a custody action must attend.

J-A12024-01
Preliminary Objections on April 5, 1999. Mother filed an Answer.
Thereafter, Mother and Father filed a Motion for Judgment on the
Pleadings. After two and a half days of evidentiary hearings on
August 9, November 23, 1999, and April 3, 2000, Preliminary
Objections were granted and the partial custody complaint was
dismissed. CW then filed this appeal.
Mother and Father were married on June 13, 1970. They have
three children, RV, age 25, SV, age 18, and BV, age 11. It is the
paternity of BV that is in question.
Father, Mother and CW had known each other for approximately
30 years, and according to CW's testimony, he and Mother had
an on-going sexual relationship around the time Child was
conceived. He also testified that Mother had told him that she
and Father were not engaged in sexual relations at the time
Child was conceived, and that the two were in fact sleeping in
separate quarters.
Further, CW testified that he regularly spent time with the Child
throughout the first ten years of his life, including taking him to
family reunions and holiday gatherings. He testified that he and
Mother had an informal agreement whereby he made child
support payments to Mother, and, in exchange, was able to
spend time with him.
Father disputes that Mother ever slept anywhere but in their bed
and denies any acknowledgment that CW is the father of Child.
He completely contradicts all of CW's testimony. Mother's
pleadings support the Husband's position.
Trial Court Opinion, 9/1/00, at 2-4.
¶ 3
Appellant raises the following issues:
A.
Whether the [trial] court erred in refusing to permit the
cross-examination of a party and presentation of rebuttal
evidence at an evidentiary hearing.
B.
Whether the [trial] court erred in placing the burden of
proof on appellant to overcome preliminary objections
without first requiring production of evidence to support
the preliminary objections.
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J-A12024-01
C.
Whether the presumption of paternity may be applied to
bar a party from seeking to establish that he is the father
of a child, when application of that presumption would
destroy an existing parent-child relationship.
D.
Whether a party may be estopped from invoking the
presumption of paternity when that party has engaged in
conduct that has resulted in establishment of a strong
parent-child relationship.
Appellant's Brief, at 4.
¶ 4
Our standard of review is well settled:
The paramount concern in a child custody case is the best
interests of the child, based on a consideration of all factors that
legitimately affect the child's physical, intellectual, moral and
spiritual well-being.
Swope v. Swope, 689 A.2d 264, 265 (Pa. Super. 1997) (citations omitted).
¶ 5
We address appellant's third claim first:
A child conceived or born during the marriage is presumed to be
a child of the marriage; this presumption is one of the strongest
presumptions of the law of Pennsylvania; and the presumption
may be overcome by clear and convincing evidence either that
the presumptive father had no access to the mother or the
presumptive father was physically incapable of procreation at the
time of conception. However, the presumption is irrebuttable
when a third party seeks to assert his own paternity as against
the husband in an intact marriage. [Further,] the presumption of
paternity embodies the fiction that regardless of biology, the
married people to whom the child was born are the parents.
Martin v. Martin, 710 A.2d 61, 63 (Pa. Super. 1998) (citing Brinkley v.
King, 701 A.2d 176, 179-80 (Pa. 1997) (emphasis added)). The public
policy behind the presumption of paternity is the preservation of families,
which should not be destroyed by a dispute over the parentage of a child
conceived or born during the marriage. Brinkley, at 180. A third party
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J-A12024-01
should not be allowed to attack the integrity of a functioning marital unit,
"based on public policy that children should be secure in knowing who their
parents are." Id. If a person has acted as a father and bonded with a child,
the child should not be required to suffer the potentially damaging emotional
trauma that may come from being told his father, who he has known all his
life, is not in fact his father. Id.
¶ 6
BV was born into an intact marriage of 29 years. During the hearing,
the trial court stated:
An intact family is a family that is a functional family; let's put it
that way, as opposed to a dysfunctional family. When a child
lives in a household and has two parents there on a regular,
recurring basis and who interacts with each other on a daily
basis. And with all the normal things that go on in families, the
discipline, communication, the making of meals, going to bed at
night, getting up in the morning. And interaction with other
community things; church, extended family.
N.T. Hearing, 4/3/00, at 10.
¶ 7
The record shows GV has played an active role in BV's life, and held
him out to the community as his son. Together, they became involved in
soccer, tee-ball, and cub scouts; in response, the community considered GV
BV's father. Activities include bathing BV, making dinners and acting as
primary caregiver. There is an intact family to preserve, one that the trial
court properly determined shall not be disturbed by allowing the intervention
of appellant to cause further detriment to BV and the family as a whole.
¶ 8
The party attempting to rebut the presumption has the burden of
proof. Traditionally, the presumption of paternity can only be overcome by
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J-A12024-01
proving a husband did not have access to his wife, or was sterile or impotent
during the time of conception. Martin, supra, at 62 (citation omitted).
¶ 9
Appellant relies on Ambrose v. Cross Creek Condominiums, 602
A.2d 864, 869 (Pa. Super. 1992) for the proposition the burden of proof
should be placed on GV to support his preliminary objections before
appellant answers such objections. Ambrose was a slip and fall case; it did
not involve the presumption of paternity or a custody issue. The present
case concerns the presumption of paternity, a hurdle appellant must
overcome. A substantive presumption is not avoided merely because of the
procedural stage of the case. As the trial court properly placed the burden
of proof on appellant, see Martin, supra, appellant's second claim fails.
¶ 10 The trial court did not err in refusing to permit the cross-examination
of GV, or presentation of rebuttal evidence by appellant at the evidentiary
hearing. As appellant failed to present any evidence to rebut the
presumption of paternity, the trial court could well have ended its inquiry
once appellant rested. After GV testified he never lacked access to his wife
during the period of conception, was neither sterile nor impotent, and is
listed as father on BV's birth certificate, the trial court stated the evidence
more than rebutted appellant's testimony. The court further stated GV had
produced enough evidence to prove the existence of an intact family.
Relying on the presumption of paternity, the court precluded appellant from
having further standing on the issue of paternity. As appellant failed to
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J-A12024-01
rebut the presumption in his primary presentation, there is no error in
refusing to let him attempt to meet his burden in rebuttal.
¶ 11 Regarding appellant's final claim, we reiterate: "the presumption [of
paternity] is irrebuttable when a third party seeks to assert his own
paternity as against the husband in an intact marriage." Martin, supra, at
63. GV proved the existence of an intact marriage. As a result, "[t]he
interest of [appellant] pales in comparison to the overriding interest of the
presumed father, the marital institution and the interest of the
Commonwealth in the family unit." Id., at 65. Further, "if the family
remains intact up to and beyond the birth of the child, despite evidence that
rebuts the presumption of paternity, estoppel will apply ... ." Amrhein v.
Cozad, 714 A.2d 409, 412 (Pa. Super. 1998). The V's were married before
and after the birth of BV and remain married. Accordingly, appellant cannot
rely on the presumption of paternity to support his standing; the
presumption is exactly what bars him from disturbing this intact family.
¶ 12 Because the trial court committed no errors of law and appellant did
not rebut the presumption of paternity, we affirm the order granting the
preliminary objections of GV and dismissing appellant's complaint.
¶ 13 Order affirmed.
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