Private Paternity Test Kits . . . How Useful Are They?

Marylou Matas, Esquire . (high resolution photo)

Rite Aid is now selling DNA paternity test kits from their shelves, so everyone at home can determine privately who is the father of their child.  While Rite Aid may think it’s a good idea to sell paternity in a box, Pennsylvania courts don’t seem to agree that paternity can be established from a drugstore shelf.  In fact, establishing paternity may be one of the most difficult to understand and argued over concepts of law we have here in Pennsylvania.  Why is that, when DNA is so available, so used, so admissible…or is it?

The simple answer is, here in PA, the courts don’t always use a DNA test to establish paternity.  Surprised?  In Pennsylvania, our courts have established a different legal test, which analyzes a host of factors. 

First, the courts will consider whether the “presumption of paternity” applies to a case.  This is a presumption that a child born during a marriage is a child of the marriage.  It will apply when there is an intact family to preserve.  It can only be overcome by proof of sterility or non-access. 

In Strauser v. Stahr, 726 A.2d 1052, Mr. Strauser had private DNA tests proving he was the father of a child born to Mrs. Stahr, a married woman.  The Pennsylvania Supreme Court applied the presumption of paternity, however, and would not allow Mr. Strauser to advance his claim as the father.  Why?  The child was born during the marriage of Mr. and Mrs. Stahr and there was no evidence that husband was sterile or did not have access to his wife.  Fair?  That’s the current law on this issue.  And blood tests can not be ordered to rebut this presumption.  So those private Rite Aid tests will be inadmissible for this purpose. 

Second, if the presumption of paternity can be overcome, the courts will determine if
“paternity by estoppel” applies.  This is much more difficult to consider and there is dissent even among the various Justices of the different courts as to how this applies.  This legal analysis is a look at a person’s conduct, things like paying support, visiting, buying gift, etc., all will be conduct evidencing an intent to hold the child out as his own.  If so, that person will be estopped from denying paternity.  However, there is an exception (as there usually is).  If a mother misrepresented the fact of the paternity to father, or engaged in some fraud of her own, the court will consider that evidence and may allow the father to deny paternity.  But, there is public policy to consider, such as how this will affect a child to learn that the person who he thought was his father may, in fact, not be.

The Superior Court applied paternity by estoppel to the recently decided case of Glover v. Serevino,  2008 WL 802313 (Pa.Super.), 2008 PA Super 51.   In the case, the “father” took a private DNA test when the child was nearly 12 years old, discovered he was not the father and at the next support modification conference, raised the issue of paternity.  Three of the Superior Court Justices overturned a trial court judge when it held that “father” could stop paying support, although he had signed a birth certificate, previously exercised custody and was court ordered to pay support.  Rather than indicate that the private DNA kit was the deciding factor, the Superior Court applied the doctrine of paternity by estoppel when it found that the mother misrepresented her circumstances to the father at the time the child was conceived, by failing to tell him she had more than one sexual partner and someone else could have been the father.  Thus, he would have had the opportunity to establish paternity much earlier.  There was a strong dissenting opinion filed, so this case is ripe for appeal. 

The lesson to be learned here is that the Rite Aid kits may not be useful at all in a court proceeding.  There is a legal analysis that needs to be performed still when it comes to determining paternity. 

Ms. Matas is a graduate of Indiana University of Pennsylvania, where she majored in Criminology and earned a Bachelor’s degree in 1994.  She worked as a counselor for juvenile delinquent boys before graduating from law school at the Pennsylvania State Dickinson School of Law with a Juris Doctorate Degree in 1999.  She was admitted to the Pennsylvania bar in 2000.  Ms. Matas concentrates her practice in the area of family law.  She assists her clients in the areas of divorce, custody, support and adoptions. 

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