In Whitewood v. Wolf, 2014 WL 2058105 (M.D.Pa. 2014), the Federal District Court for the Middle District of Pennsylvania held that Pennsylvania’s ban on same-sex marriages was unconstitutional, thus same-sex marriage is now legal in Pennsylvania. One area of the law that will be greatly impacted by this decision is paternity; however, it remains to be seen what effect the holding will have. Many would argue that the “presumption of paternity” will apply to same-sex couples, and for policy reasons, it should. The presumption holds that a child born to a married woman is a child of the marriage; the presumption “is an extremely strong one, and can only be overcome by clear and convincing evidence to the contrary.” John M. v. Paula T., 524 Pa. 306, 314, 571 A.2d 1380, 1384 (1990). The purpose of the presumption is to protect and preserve the family unit and to promote the best interests of the child. See Brinkley v. King, 549 Pa. 241, 701 A. 2d 176 (1997). If the sex of the couple no longer matters regarding the protection of the marital unit, the same purpose of protecting the family obtains in same-sex settings. However, historically, the presumption couldonly be overcome
by proof of physical impossibility of the impregnation of the wife by the husband. See John M. In the same-sex context, such evidence is of course facially present: the child could not have been a biological product of the parties. Thus the obvious physical evidence would refute the presumption, but the presumption should still apply for policy reasons.
The doctrine of “paternity by estoppel” applies where one person holds a child out to be his own and provides support. Fish v. Behers, 559 Pa. 523, 741 A. 2d 721 (1999). In the estoppel case, physical evidence of parentage is not relevant, and the controlling issue, as recently announced by the Pennsylvania Supreme Court, is the best interests of the child. See K.E.M. v. P.C.S., 38 A.3d 798, 809 (Pa. 2012). Accordingly, the sex of the parents should never have been, and should remain, of no moment. The Whitewood ruling is congruent with “paternity by estoppel.”
