Pennsylvania presumes that a child conceived or born during an intact marriage is a child of the marriage. As a result, both spouses are presumed to be the parents of the child. In 2019, the Superior Court of Pennsylvania held that the presumption of paternity applies to same-sex marriages as well. However, the Pennsylvania courts have yet to address how the presumption can be overcome for a same-sex marriage.
In Interest of A.M., the Superior Court of Pennsylvania stated “Same-sex marriages are legal in Pennsylvania and must be ‘afforded the same rights and protections as opposite-sex’ marriages. . . . We therefore have no difficulty in holding that the presumption of paternity is equally as applicable to same-sex marriages as it is to opposite-sex marriages.” 223 A.3d 691, 697 (Pa. Super. Ct. 2019) (citations omitted).
Because the stated policy supporting the presumption is to preserve the marriage, the courts only apply the presumption to intact marriages. The courts contend that intact marriages should not be disrupted by questions of parentage, and they have held that the presumption is irrebuttable where there is an intact marriage and a third-party challenging the paternity of the child.
Traditionally, the courts have held that when the presumption applies, it may only be overcome by clear and convincing evidence that the husband could not possibly be the biological father of the child. This can be shown by evidence that the husband was not with his wife when she conceived the child or by evidence of the husband’s sterility. Herein lies the unanswered problem. How can the presumption be rebutted for same-sex couples? It is likely that the courts will address this issue, among others, when more cases involving the presumption of paternity in same-sex marriages arise.
Additionally, the courts should begin to consider using a gender-neutral term when referring to the presumption. In A.M., the Superior Court explained, “[w]hile we acknowledge that the term presumption of paternity is not sufficiently inclusive to reflect the reality of modern families, which include those with two same sex spouses, we will refer to the presumption as one of paternity in order to be consistent with the terminology thus far used by our Supreme Court.” 223 A.3d 691, 694 n.2 (Pa. Super. Ct. 2019).
The presumption of paternity may apply in the following circumstances, assuming a couple was married when the child was conceived or born when a third-party claims to be the parent of a married couple’s child; when a parent claims that his or her spouse is not the parent of his or her child; or when a spouse claims that he or she is not the parent of the child born during his or her marriage. The presumption enables the courts to determine the child’s parents, whether biological or not. In effect, the “court-established” parent may be obligated to support the child. If you have questions regarding the parentage or support of a child, click here or call our Pittsburgh Family Law attorneys at (412) 281-9906.