Donnelly v. Lindenmuth

BROSKY, Judge,

concurring.

I am in agreement with the majority’s finding that the trial court did not abuse its discretion in vacating the Order requiring appellee and her son to undergo blood tests pursuant to 23 Pa.C.S. § 5104. I am also in agreement with the analysis employed by the majority. However, I do not wish to have conveyed by the language of the majority view that the sanctity of the family unit may never be disturbed by the husband and/or wife in the determination of paternity of a child. This concurrence is to cite some instances where at the request of a wife or husband the court did compel blood testing of a third party alleged to be the biological father of the wife’s child.

In reviewing the caselaw dealing with the right of a wife or husband to compel blood testing of a putative father it is necessary to examine the facts of each particular case; those facts are determinative of the specific holdings. The fact that a man and a woman are still married does not preclude the wife from compelling the blood test of a putative father in order to determine paternity of the wife’s child. Jones v. Trojak, 402 Pa.Super. 61, 586 A.2d 397 (1990); 23 Pa.C.S. § 5104(c). A husband or live-in paramour can also compel blood testing of a putative father. Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019 (1988).

We note that in the cases in which the wife or husband was not permitted to compel testing of the putative father the family unit was still intact, the husband had consented to paternity by holding the child out as his own and/or providing financial support, the wife’s first husband had been ordered to provide child support, or the husband had assumed parental responsibilities with knowledge that his biological paternity was questionable. See Scott v. Mershon, 394 Pa.Super. 411, 576 A.2d 67 (1990); Christianson v. Ely, 390 Pa.Super. 398, 568 A.2d 961 (1990); Sanders v. Sanders, 384 Pa.Super. 311, 558 A.2d 556 (1989); Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988).

I submit this Concurring Opinion for the purpose of stressing that, while a wife, husband, a family unit and this Commonwealth have substantial rights and interests in insuring that a family unit remains intact where viable, court ordered blood testing of a putative father remains an option available to a husband or wife in certain circumstances.