1. Introduction
2. The Right to Procreate
  2.1 Skinner v. Okla.
  2.2 Wiscon. v. Oakley
  2.3 Involuntary Sterilization
  2.4 Kin Selection
  2.5 Marriage
  2.5.1 Anonymous
  2.5.2 Tompkins v. Tompkins
  2.5.3 Williams v. Williams
  2.6 Transgender Marriage
  2.7 Polygamy
  2.8 Prostitution
  In Brief
3. Who Is My Family?
3.1 Family Identity and the Right to Associate with Kin
  3.2 Marriage and the Paternity Presumption
  3.2.1 Jones v. Trojak
  3.2.2 Michael H. v. Gerald D.
  3.2.3 William "TT" v. Siobhan "HH"
3.3 Paternity Estoppel
3.4 Equitable Parenthood
3.5 Duty to Support
  3.6 The Paramour Statute
  3.7 Maternal Transmission of Citizenship
  In Brief
4. Whose Child Is This?
  4.1 The Surrogate Cases
  4.1.1 Johnson v. Calvert
  4.1.2 Belsito v. Clark
  4.2 Shotgun Weddings
  4.2.1 Fairchild v. Fairchild
  4.2.2 Gard v. Gard
  4.2.3 B. v. S.
  In Brief
5. Shopping For Eggs & Sperm
  5.1 Bad Sperm
  5.2 Cryogenic Orphans & Waifs
  5.2.1 Gifts of Sperm
  5.2.2 Who Is My Father?
  In Brief
6. Sexual Orientation
  6.1 The Right to Practice One’s Sexual Orientation
  6.2 Discriminating on the Basis of Sexual Orientation
6.3 Same-sex Adoption
6.4 Same-sex Marriages
  In Brief

3.2.1. Kathryn Jones, Appellee v. Joseph Trojak, Appellant


535 Pa. 95; 634 A.2d 201; 1993 Pa. LEXIS 286


The factual circumstances of this case are as follows: On January 20, 1988, Jones filed a paternity suit against Trojak, alleging that he was the biological father of Katie Jones ("Katie"), who was born October 30, 1987. At the time of the child's birth, Jones was still married to and living with William Jones. The trial court ordered all of the parties involved to undergo blood tests to determine paternity. Trojak objected, contending that Jones failed to rebut the presumption of her ex-husband's paternity and, therefore, blood tests were unnecessary. The trial court overruled the objection, and the blood tests were administered. The results from the blood tests indicated that William Jones could not be the father and that Trojak shared genetic markers with Katie which gave rise to a 99.9% probability that he is the biological father. On October 26, 1988, the trial court found Trojak to be the biological father of Katie.

… we now turn to the substantive issue of this appeal: whether there must be a determination that a child born to a married couple, living together at the time of conception and birth, is not a child of the marriage before a blood test can be ordered on a third party.

Trojak argues that there is a presumption that a child born to a married couple is a child of that marriage and this presumption remains unless rebutted by evidence from someone other than the parties. Trojak avers that, in the instant case, the presumption that William Jones is the father has not been overcome. To buttress his position, Trojak refers to evidence indicating that Mr. and Mrs. Jones have publicly held themselves out as the parents of Katie, that William Jones took the child to the hospital and signed as the responsible party and gave his consent to the Caesarean delivery. Furthermore, Trojak submits that William Jones' medical insurance paid the cost of hospitalization, that William Jones is listed as the father on both the birth and baptismal certification, and that William Jones has never publicly denied his paternity of the child.

Jones contends that the trial court correctly ordered the blood tests and admitted the results based upon the factual record indicating that there was strong evidence [1] that Trojak was the parent of the child. Also, because the trial court found no intact family [2] considerations were present, Jones avers that the presumption that her former husband is the father of the child has been overcome and, therefore, blood tests were properly ordered.

We adopt the approach taken by the Superior Court in Christianson v. Ely, which mandates that before an order for a blood test is appropriate to determine paternity the actual relationship of the presumptive father and natural mother must be determined. 390 Pa. Super. 398, 409, 568 A.2d 961, 966. In Christianson, a mother was estopped from challenging the paternity of her husband without exhibiting that he had denied paternity and refused to accept responsibility for the child from the time he was reasonably aware of nonpaternity. Id. at 410, 568 A.2d at 966. In Christianson, there was a question as to whether estoppel could be invoked to prevent the blood tests which were ordered of the putative father, presumptive father and the natural mother. The Superior Court reasoned that, "where the father has accepted the child and treated him as his own, he may not thereafter, upon separation, reject paternity and demand a blood test to rebut the presumption." Id. at 402, 568 A.2d at 963. The Superior Court also concluded that the same must be said regarding the mother. Id. "[A mother] cannot hold out her husband to be the father and thereafter, upon separation, charge a different man with paternity." Id. Depending upon the court's determination as to the above-mentioned relationship between the presumptive father and natural mother, the doctrine of estoppel may apply. Id. at 403, 568 A.2d at 963.

A court may order blood tests to determine paternity only when the presumption of paternity has been overcome. John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380, cert. denied, 498 U.S. 850, 112 L. Ed. 2d 107, 111 S. Ct. 140 (1990). This Court has held that the presumption can be overcome by proof of facts establishing non-access or impotency. Cairgle v. American Radiator and Standard Sanitary Corp., 366 Pa. 249, 77 A.2d 439 (1951). However, under certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as the father of the child. John M., 524 Pa. at 318, 571 A.2d at 1386. These estoppel cases indicate that where the principle is operative, blood tests may well be irrelevant, for the law will not permit a person in these situations to challenge the status which he or she has previously accepted. Id. However, the doctrine of estoppel will not apply when evidence establishes that the father failed to accept the child as his own by holding it out and/or supporting the child. Christianson, 390 Pa. Super. at 409, 568 A.2d at 966. Only when the doctrine of estoppel does not apply will the mother be permitted to proceed with a paternity claim against a putative father with the aid of a blood test. Id. Instantly, the trial court found that Jones had presented the requisite clear, direct, convincing and unanswerable evidence to support her claim that her husband had not accepted the child as his own.

Trojak cites our holding in John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380, cert. denied, 498 U.S. 850, 112 L. Ed. 2d 107, 111 S. Ct. 140 (1990), to buttress his position that the presumption that Katie is a child of the marriage has not been overcome. Trojak fails to comprehend the important distinction between our reasoning in John M. and the facts of the instant case. In John M., our rationale grew out of this Commonwealth's concern for the survival of the family unit. This Court believed that "the Superior Court, in ordering the presumptive father to submit to a blood test at the request of the putative father, over-emphasized the rights and interests of the [putative] father and minimized the rights and interest of others involved in and affected by its decision, namely the mother, [presumptive] father, the family unit and the Commonwealth." John M., 524 Pa. at 316, 571 A.2d at 1385. We stated that "there is in short, a family involved here . . . [a] woman and a man who have married and lived together as husband and wife, giving birth to and raising four children." Id. at 317, 571 A.2d at 1386.

In this case, however, we agree with the trial court and are convinced that the facts indicate that the presumptive father and mother repudiated their marriage vows long ago. Additionally, we have evidence that the presumptive father did not accept the child as his own. The circumstances before us, as found by the trial court, are that the presumptive father has never financially or emotionally supported Katie. Moreover, the trial court found that during the time Katie was conceived, Jones was not sexually involved with the presumptive father because he was impotent, and this testimony was not rebutted by either the presumptive father or the putative father. Thus, we agree with the Superior Court that there being no intact family considerations present, a determination regarding Trojak's paternity is necessary to resolve the child support claim made by Jones.

[1] According to Appellee, this strong evidence was that "(1) [Appellant] admitted plaintiff told him that she was not having sexual relations with her husband at or around the time the child was conceived; (2) Sexual relations for one to two years prior to conception and during the time of conception were admitted by both parties; (3) Appellant made regular weekly payments for approximately two years of amounts of support culminating in payments of $ 50.00 per week; (4) [Appellant] paid other expenses, such as, school clothes, shoes, tuition and other amounts denominated 'for Katie.'" Appellee's Brief at 18. 

[2] The phrase "intact family" has been used by our lower courts to describe a situation where the presumptive father and natural mother live together as husband and wife and accept the responsibility of parenthood. See Everett v. Anglemeyer, 425 Pa. Super. 587, 625 A.2d 1252 (1993); Coco v. Vandergrift, 416 Pa. Super. 444, 611 A.2d 299 (1992).