Friday, December 08, 2017

Paternity - acknowledgment - 23 Pa. C.S. 5103.

S.N.M. v. M.F. – Superior Court – November 20, 2017

Held:  Trial court erred in ordering putative father’s (PF) 2016 motion for genetic testing, where custody order had been entered between mother and PF, including PF’s formal acknowledgment of paternity.

In R.W.E. v. A.B.R., 961 A.2d 161 (Pa. Super. 2008), the Court stated that a signed, witnessed, voluntary acknowledgment of paternity shall be considered a legal finding of paternity if it is not rescinded by the signatories within sixty days of its signing. 23 Pa.C.S. § 5103(g)(1). After sixty days, the acknowledgment may only be challenged in court on the basis of fraud, duress or material mistake of fact, if established by the challenger through clear and convincing evidence. 23 Pa.C.S.  § 5103(g)(2). Id. at 167. Thus, because PF signed the acknowledgment of paternity and presented nothing to show fraud, duress or material mistake of fact, the paternity of child was established and cannot be challenged at this point.   Accord,  D.M. v. V.B., 87 A.3d 323, 327 (Pa. Super. 2014)

See also Wachter v. Ascero, 550 A.2d 1019, 1021 (Pa. Super. 1988) (stating that “blood test should not have been ordered … even for humanitarian purposes, and should never be ordered unless it is to establish paternity in a proceeding where paternity is a relevant fact and has not already been determined in a prior proceeding”). Here, the custody agreement, made an order of court, is such a proceeding that determined paternity. Accordingly, the trial court abused its discretion in granting the genetic testing.