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HomeMy WebLinkAbout00-594 supportROBIN M. UNGER :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA V. :00594 SUPPORT 2000 JODY D. WEAVER :PACSES Case Number: 491102455 IN RE: PETITION TO CANCEL GENETIC TESTING OR, pER OF COURT ~.,~ NOW, ,.~ ~/./A/"' ~,-7 2000, after careful consideration of the Plaintiff's brief and pursuant to the Opinion filed on this date, the Plaintiff's Petition to Cancel Genetic Testing is granted. The October 19, 2000 Order to Appear for Genetic Testing is hereby rescinded, and defendant Jody D. Weaver is precluded from requesting genetic testing regarding the paternity of Laurel B. Weaver. The Cumberland County Domestic Relations Office is ordered to reschedule a support conference in this matter. ~. ~)ffer, / P.J. Jody D. Weaver 847 A. Mohn Street Steelton, PA 17113 Family Law Clinic 45 North Pitt Street Carlisle, PA 17013 Domestic Relations Office ROBIN M. UNGER :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA V. :00594 SUPPORT 2000 JODY D. WEAVER 'PACSES Case Number: 491102455 IN RE: PETITION TO CANCEL GENETIC TESTING OPINION HOFFER, P.J.: This case arises out of the plaintiff mother's Petition to Cancel Genetic Testing that was requested by Jody D. Weaver. A custody and visitation agreement was docketed in this case at 00-5356 Civil and filed on August 29, 2000 with the Cumberland County Prothonotary's Office. According to this detailed custody and visitation agreement, mother and Jody D. Weaver, who identified himself as "father" in that signed agreement, agreed to have shared legal custody of their child, Laurel Brooke Weaver, where mother has primary physical custody and father has partial physical custody according to a custody schedule.~ During the holidays of Thanksgiving, Christmas Day, Easter Sunday, and the child's birthday, mother and father agreed to divide custody by mutual consent in order for each parent to have substantial time with the child during those holidays. On Mother's Day, the child ~ The custody schedule states that father shall have custody every other weekend from Friday at 6:00 P.M. through Sunday at 6:00 P.M. for the first three (3) months of the Order. If father follows through on his custodial periods and demonstrates an interest in the child, then he will have every weekend from Friday at 6:00 P.M. through Sunday at 6:00 P.M. Father additionally receives another week of custody during the year. Once the child is of schooling age, father may exercise a custodial period during the summer and give mother thirty (30) days notice of this custodial period. will be with mother and on Father's Day, the child will be with father. The custodial parent will allow the non-custodial parent reasonable telephone communication with the child. Father will be responsible for all transportation of the child to and from mother's residence, and mother will keep father informed of the child's dietary and medical needs. Additionally, neither parent is allowed to do anything which would estrange the child from the other parent, injure the opinion of the child as to the other parent, or hamper the free and natural development of the child's love and respect for the other parent. Father understood that the Family Law Clinic represented mother's interests and they advised him to seek the advice of legal counsel. Plaintiff, Robin M. Unger signed this custody and visitation agreement as "mother," and defendant, Jody D. Weaver signed it as "father." Mother and father desired to make this agreement an order of court, and on August 31, 2000, it was adopted as a Court Order. Neither party attempted to appeal this Order. On July 10, 2000, plaintiff filed a complaint for child support against defendant, and on October 19, 2000, a support conference was held. At the support conference, defendant requested genetic testing, raising for the first time the child's paternity. On the same date, the Court ordered the parties to appear for genetic testing and plaintiff, through counsel, filed a petition to cancel the genetic testing. According to the petition, plaintiff claims that defendant should be estopped from contesting the paternity of the child, and should be precluded from requesting genetic testing to determine paternity because defendant did not appeal the August 31,2000 Order of Court in which defendant was adjudged the father of the child. On this basis, the Court issued a Rule to Show Cause on behalf of the plaintiff, requesting a brief and giving a response time to defendant.2 Discussion According to 23 Pa.C.S.A. §4343(a), "[w]here the paternity of a child born out of wedlock is disputed, the determination of paternity shall be made by the court in a civil action without a jury." However, paternity is only a "relevant fact" when it has not been established either by consent or by order in a prior proceeding. Wachter v. Ascero, 370 Pa. Super. 153, 523 A.2d 821 (1987) (cited in Commonwealth ex. rel. Coburn v. Coburn, 384 Pa. Super. 295, 558 A.2d 548 (1987)). A custody order necessarily determines the issue of paternity which is established as a matter of law, and cannot be challenged by an aggrieved party in a subsequent proceeding. See Coburn, 384 Pa. Super. 295, 558 A.2d 548 (1987). Accordingly, defendant is collaterally estopped from raising any question concerning paternity because of the prior custody and visitation order that determined paternity as a matter of law. A legal determination of paternity for custody purposes, which is unappealed from, forecloses any further litigation on that issue. See Melissa W. v. Steven M., 23 Pa. D&C. 4th 141 (1995), McCue v. McCue, 413 Pa.Super. 71,604 A.2d 738 (1992). By failing to appeal the August 2 Plaintiff's counsel filed a brief with the Court on November 3, 2000 and sent a copy by mail to defendant. Defendant had ten (10) days, from November 3, 2000 to November 13, 2000 (including allowance for postal delivery), in order to file a brief with the Court. The Court has not received a brief from defendant. 3 31, 2000 Custody and Visitation Order, the finality of the determination of paternity has been decided on the merits. We find the Pennsylvania case law of Commonwealth ex. rel. Coburn v. Coburn, 384 Pa.Super. 295, 558 A.2d 548 (1987), and its progeny dispositive relating to the case sub. judice. Therefore, genetic testing is inappropriate in the instant case. Another premise upon which defendant cannot contradict his statements in the custody and visitation agreement rests on judicial admissions. Judicial admissions are formal admissions which have the effect of withdrawing a fact from issue and dispensing of it without the need for proof of the fact. Duquesne Light Company v. Woodland Hills School District, 700 A.2d 1038 (Pa. Commw. 1997). Judicial admissions are conclusive and cannot be contradicted at a later time by the party who has made them, regardless of the method by which he or she seeks to contradict his or her prior admission. Rizzo v. Haines, 520 Pa. 484, 555 A.2d 58 (1989). By signing the custody and visitation agreement as the child's father, which subsequently became an Order of Court, defendant's judicial admissions cannot now be withdrawn. Therefore we find, after thorough examination of the case at bar, defendant is precluded from requesting genetic testing.