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In one of his final decisions before leaving the Superior Court, newly elected state Supreme Court Justice Seamus P. McCaffery asked � in an extended footnote stretching over two pages � that Pennsylvania’s paternity dispute statutes be updated to allow DNA testing to be considered in determining paternity. McCaffery decried that DNA blood tests can’t be introduced into court to rebut the presumption of paternity, which ensues when a mother, husband and child make up an intact family and the father initially has assumed responsibility for the child. “In our view, Pennsylvania law is outdated on the issue of DNA evidence in paternity disputes, and should be modified to acknowledge the scientific reality that, in virtually all cases, it is now possible to establish to nearly absolute certainty whether a putative father is indeed the biological father of a child,” McCaffery wrote in Vargo v. Schwartz on Dec. 31. “Pennsylvania law at present requires courts to ignore this reality, unless the court first concludes that the presumption of paternity does not apply or has been rebutted via the traditional proofs of sterility/impotence or non-access.” Judge Correale F. Stevens and Senior Judge Joseph A. Hudock joined McCaffery. McCaffery said he was echoing prior dissents by former Supreme Court Justices Sandra Schultz Newman and Russell Nigro about Pennsylvania’s rigid application of the doctrine of paternity by estoppel, which disallows trial judges the discretion to order DNA blood tests that can offer evidence to rebut the presumption of paternity. In the present case, Richard K. Schwartz appealed an Allegheny Common Pleas Court order requiring him to pay child support for two of Victoria L. Vargo’s daughters, who are now 6 years old and 4 years old, McCaffery said. Vargo’s estranged husband, Kevin, is the father of Vargo’s 18-year-old eldest son, and a third man, Hugh Johnston, is the father of Vargo’s 16-year-old son, according to court papers Schwartz argued that the trial court committed an error in not finding that the presumption of paternity applied and that Victoria Vargo should be estopped from seeking child support from him because Victoria Vargo and her estranged husband initially presented the daughters as children of their marriage, McCaffery said. However, both a hearing officer and the trial judge concluded that paternity by estoppel did not apply because Kevin Vargo only declared himself the father of the two girls for 21 months for the eldest and five months for the youngest daughter – “until mother revealed her deception and informed him that he was not the girls’ biological father,” McCaffery said. Schwartz was ordered to pay $1,050 per month by Judge David N. Wecht. McCaffery said the current legal process of determining paternity defies reason when DNA tests can’t be used to rebut paternity and only nonphysical access between a husband and a wife or sterility or impotency can rebut the presumption of paternity. Under the current law, McCaffery said, judicial officers must determine paternity by deciding first if the presumption of a husband’s fatherhood of a child conceived or born during a marriage applies. Then the court must determine if the presumption of paternity is rebutted because the family is no longer intact or there is no longer a marriage to preserve. Then the court must determine if estoppel applies. Despite contrary DNA tests, McCaffery said, estoppel bars a supposed father from denying paternity after he has assumed parental responsibility and bonded with a child and bars a mother from pursuing a paternity claim in such circumstances. Because the law did not allow DNA evidence of Schwartz’s fatherhood, the case was litigated “to no sensible end,” he said. The Superior Court agreed with the rulings below in the Vargo case that presumption of paternity did not apply because the family was not intact and there was no marriage that would be preserved by applying the doctrine. Applying the doctrine of paternity by estoppel would punish Kevin Vargo, reward Victoria Vargo’s fraud and relieve Schwartz of any legal responsibility to his biological daughters, McCaffery said. While Kevin Vargo did keep the two girls on his health insurance and tried to spare them some of the consequences of the controversy over their conception, he has publicly disavowed that he is their father, McCaffery said. Under such circumstances, “the trial court placed greater weight on Mr. Vargo’s public disavowal of his biological paternity than on his more private interactions with the two young girls, who, given their tender years, were no doubt incapable of comprehending the controversy swirling around them. . . . Under these circumstances, we conclude that the trial court did not abuse its discretion in holding that paternity by estoppel was not applicable.” In such hotly contested cases as Vargo, the determination of paternity can rest upon a judge’s determination if the husband and wife are permanently broken up or just having marital strife, McCaffery said. The presumption of paternity would not apply if a judge determines the marriage is irretrievably broken, the Superior Court’s opinion said, but the presumption would apply if the marriage was still somewhat intact and only in a troubled state. “In our view, such a legal analysis not only invites inconsistency, but is also illogical and blind to modern social and scientific realities,” McCaffery said in his footnote. “In a case such as the one sub judice, it defies reason and logic to preclude the admission of DNA evidence to rebut the presumption of paternity.” McCaffery said that the inclusion of DNA testing in judicial consideration of paternity disputes would simplify and logically resolve disputes, such as the Vargo case, that the current legal regime can’t solve. “The inability to acknowledge in a legal sense what everyone appears to accept as a biological fact – that appellant is the biological father of the girls involved in the instant case – has complicated and lengthened the resolution of this matter to no sensible end,” McCaffery concluded in the footnote. Victoria Vargo’s attorney, Alida Kornreich with the Allegheny County Law Department, said it was best to decline further comment and said the result in her client’s favor speaks for itself. The attorney for Schwartz did not respond to request for comment. (Copies of the 25-page opinion in Vargo v. Schwartz , PICS No. 08-0019, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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