Friday, September 28, 2007

Discretion

When litigating a case in Family Court, parties must remember that Family Court Judge’s are vested with broad discretion. Generally, in simpler terms, this means that Family Court Judges hear the evidence and make decisions on an individualized, case by case basis. Absent an abuse of that discretion, Appellant Courts do not overturn the Trial Court’s decision. Accordingly, even though some people think they can obtain a "second bite at the apple" by appealing their case, it is important to remember an Appellant must demonstrate how the Court abused their discretion in coming to their decision. Recently, the Superior Court of Pennsylvania, opined on the abuse of discretion issue on the case of Gates vs. Gates (2007.Pa. Super.281) September 7, 2007.

Paternity Test Negative But He is Still the Daddy

Recently, the Superior Court Of Pennsylvania reversed a decision by the Trial Court which named the biological father as the father of the child and rescinded the paternity of a man who voluntarily acknowledged paternity shortly after birth even though no paternity test had been performed. In this case, the mother and the non-biological father had an ongoing sexual relationship. When mother became pregnant, mother and non-biological father agreed that no matter what the paternity test stated, he would be the father of the child. They agreed to no genetic testing and resided together during the pregnancy.

The parties resided together for approximately a year after the child’s birth. Differences ensued and mother refused to allow non-biological father access to the child. He filed a Petition for Custody. Then, both parties submitted to genetic testing.

Notably, the genetic testing did not take place until approximately one year after the child’s birth. Once the test came back negative, the parties filed various Motions and ultimately joined another individual to the case, who, after genetic testing, turned out to be the actual biological father.

In another twist, the non-biological father tested positive for marijuana and was restricted to supervised visitations. Non-biological father then asked the Court to confirm his paternity due to his acknowledgment of paternity even though he was found not to be the biological father. On the other hand, the biological father requested that the Court vacate non-biological father’s Acknowledgment of Paternity so he could be the true father and mother joined in that request. The Trial Court ultimately ordered that the Acknowledgment of Paternity be rescinded due to fraud and found that the biological father was the true father of the child. However, non-biological father appealed.

The Superior Court reviewed the history of the case and did not agree that a fraud had been committed. Furthermore, the Superior Court relied on the original Acknowledgment of Paternity at a time when no DNA tests had been performed. The Court repeated the public policy that "children should be secure in knowing who their parents are, and, if a person has acted as a 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 he has known all his life, is not, in fact, his father." (Gebler vs Gatti, 895 A.2D 1 3 (Pa. Super. 2006) (citation omitted).)

The Trial Court concluded that the Acknowledgment of Paternity should not be rescinded and therefore, stood. Accordingly, the result in this case is that even though the paternity test showed that a different person was the father, because this non-biological father had a relationship with the child, bonded with the child, intended to be the child’s father and acknowledged paternity, he remained the true father.

The lesson and moral of this story? Signing an Acknowledgment of Paternity has serious, sometimes irreversible, consequences.

Wednesday, September 19, 2007

On the Radio . . .

I will be a guest on 107.9 WRNB's Court Radio show with Richard Harris, Esquire from 10:00 am until 11:00 am this Sunday, September 23, 2007 to speak about family law issues. Tune in if you are in the Philadelphia area.

Thursday, September 06, 2007

Recent Case Law and News

What happens to Child Support when Daddy goes to jail?

Read a recent opinion by the Pennsylvania Superior Court regarding whether incarceration qualifies as a circumstance to reduce or eliminate a child support order. Get opinion here in adobe acrobat format.


What does the court consider when terminating parental rights?

Read a recent decision of the Pennsylvania Superior Court addressing the issue here.


How many cases are filed in Pennsylvania?

Read a report here.