DOES THE PATERNITY PRESUMPTION DESERVE TO LIVE?

The facts are pretty common. Danielle and Michael Arpin married in 2008. After three children Michael had a vasectomy in 2017 but we are informed there was no follow up “bench test” to make certain that the procedure was effective. In November 2021 Danielle began an affair with John Lyons that included unprotected sex. In April 2022 the Arpins separated, ending their sexual relationship. A year later Danielle became pregnant. Five or six months later the Danielle/Lyons relationship ended and the Arpin marriage resumed. In January 2024 a new child arrived.

Ten days after the new child was born, Mr. Lyons filed a petition to establish who was the father of the new born and requested genetic testing to confirm his status. The Court held hearings in March and April 2024 where testimony was heard about the vasectomy and that the Arpin marriage was presently “intact.” The Court concluded the marriage was extant, that there was no proof the vasectomy had been effective and the presumption that Michael Arpin was father applied. No paternity testing would be permitted because of the presumption.

Mr. Lyons appealed. The Superior Court noted that this is reviewed with an abuse of discretion standard. Then, in a phrase which should prompt convulsions for those who think legal principles should be honored, the Court writes that
“The presumption of paternity is one of the great fictions of the law of paternity.” Brinkley v. King, 701 A.2d 176 (Pa. 1997).

This great fiction is one where the presumption can be rebutted by proof of impotence or non-access by the husband of the wife giving birth. But then the Court circles back to other case law stating that if the family is intact at the time paternity becomes an issue the presumption that husband is father is irrefutable no matter what the facts. Strauser v. Stahr, 726 A.2d 1052 (Pa. 1999).

In one sense the decision of the Superior Court cannot be faulted. The court does not have legal authority to overturn established Supreme Court precedent. And the Supreme Court expressions are scarcely equivocal. But, this reasoning has all the merit of an express ruling that the Earth is flat.

A bit of history is helpful to understand the context. Infidelity is scarcely a new problem but until the evolution of reliable genetic testing in the 1980s parentage was decided visually. This writer recalls juries being asked to look at the baby and decide whether he/she looked more like one possible father or another. The other matter was one of policy.  In a day when orphanages overflowed and adultery, fornication and bastardy were crimes, life could be complicated if outsiders made trouble. Bear in mind as well that “nice” families could be corrupted or at least discredited if a wife’s adulterous conduct was revealed.

The CDC informs us that in 2022 39% of all Pennsylvania births were to unmarried women. Recent data compiled from genetic testing sites like 23&Me suggests that 1-2% of children are not genetically related to their mother’s husband. The Arpin fact pattern is hardly unique. The Arpins were re-united for five months when the hearings over paternity concluded. And while we like to discuss family stability, history demonstrates that families are problematic. Consider this:

2008-2021      Arpins together

2021                  Affair with Lyons

2022                  Separation

2024                  Arpins back together.  New child born.

There are other possible complications as well. Suppose Ms. Arpin decided she wanted to resume her marriage but was chill with raising a child with Mr. Lyons as well. Does Mr. Arpin have the right to intervene in the Moyer case and have it dismissed even if his wife approved of Moyer’s involvement. Suppose Mr. Arpin passed away or was sentenced to incarceration, leaving his wife a single parent? Suppose the Arpins divorced while the appeal in this case was pending? Is this “love child” barred from having any father other than a man who isn’t his?  Where are the child’s rights in this and who, if anyone asserts them? Note that this case denies any paternity testing and thus forecloses the child access to learn his or her own genetic background.

Then there is the precedent of the Supreme Court of the United States. In 2000 that Court said:

“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the righ[t] … to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

 Troxel v. Granville  530 U.S. 57 (2000).

Thus, we have a fundamental right here but one that seems to be forfeited should the mother of your child decide she wants the comforts of her marriage. The opinion is Moyer v. Lyons dismisses this fundamental right argument on the basis that it was badly briefed by the appellant. But, a similar case is in the hopper of the state supreme court as that court decided to hear Sitler v. Jones. 2024 Pa. Super 38 (2024). Sitler involves a man who was told by a married woman that she was pregnant by him. He initially said he wanted no part of the situation but six months later filed for custody just after the child was born. He was told he had no rights because the mother of the child decided she liked her marriage better and had resumed living with her husband.

It is one thing to create presumptions in a world where the truth could never be known. That was the case until 40 years ago when reliable genetic testing became available. To cling to that presumption today is to deny a real father what the highest court in America has termed a fundamental right while sentencing a child to live a lie. In a day when we have highly effectively means of birth control and equally effective means of determining paternity, it is a disservice to all to cover up the truth. Courts profess to be institutions devoted to seeking the truth. In this instance, the law is an instrument complicit in shielding it. Whether Mr. Lyons is the father or should be conferred the right to be involved with this child remains uncertain. But the idea that he must wander the streets not knowing whether he is or isn’t a parent does not really square with the idea of justice.

Lyons v. Arpin  J-S03008-25m – 106310445303995358.pdf