aN Introduction TO THE FAMILY
A recent landmark decision from the Superior Court spotlights the tangled narrative of a case that questions the very essence of familial bonds in modern society. David and Tauna Kish tied the knot in 2015 and welcomed their third child, whom we'll refer to as C.K., in 2018. Despite still being legally married, the Kishes' relationship had been marked by intermittent cohabitation, with Tauna starting a relationship with Michael Knecht soon after her marriage to David. During her pregnancy with C.K., Tauna's living arrangements fluctuated between David and Michael. At times, each man accompanied her to prenatal visits, with Michael present at C.K.'s birth and even signing paternity acknowledgment forms, though the birth certificate left the father's section blank, but listed the boyfriend’s surname Knecht for the child.
In an intriguing twist, David drove Tauna to the hospital for the birth but didn't stay, later dropping her and the newborn off at Michael's residence. A few months post-delivery, Tauna and Michael faced eviction, and C.K. began living with David, his presumed siblings, and his grandmother—a living situation that persists. Tauna's struggles with substance abuse disorder and occasionally stays with David and his mother - further complicating the family dynamics. The Superior Court opinion finds significant that C.K.’s presumptive father, David, is a registered sex offender under Megan’s Law.
The Legal Battle: Custody and Paternity Challenges
In legal proceedings that highlight the case's complexity, Tauna's boyfriend Michael's mother sought shared custody in 2020, despite Michael not even being a party to a custody case. An agreement was made by which Tauna's was awarded primary physical custody, her boyfriend Michael was given partial physical custody and Michael’s mother was awarded some physical custody time as well. The order names Micheal, Tauna’s boyfriend, as C.K.’s biological father. Curiously, the opinion suggests that despite this Court Order, C.K. actually continued to reside primarily with his presumptive father, Tauna's husband David, and David’s Mother - C.K.’s presumptive grandmother. Subsequent filings by both the husband and boyfriend’s mother’s in 2023 led to an evidentiary hearing, with David attending for the first time. He incredibly testified that he only just learned about the ongoing custody dispute over C.K. David then sought to establish his legal presumption of paternity, being Tauna's legal husband. This prompted the court to pause further proceedings to determine C.K.'s true paternity through HLA blood and genetic testing.
Another hearing was held on April 12, 2023. Mother, Tauna, did not attend. This may be related to her ongoing substance abuse disorder. Presumptive father, David, said he and Tauna remained married, that he had “access” when C.K. was conceived. David testified that he was not sterile and capable of fathering C.K. David also testified that he has had de facto primary physical custody of C.K. since May 2019, a period of four (4) years. David reiterated that he did not know there was a custody dispute underway until just before he filed. Father’s appellate court brief acknowledges his marriage with Tauna, C.K.’s mother, was not stable and otherwise on and off.
Mom’s boyfriend, Michael, also attended the hearing and testified about C.K. calling him “Dad” and stating that “C.K. looks just like me.” Of course, such a gratuitous statement could have been resolved 100% once HLA blood and genetic testing became available. Unfortunately, even though the Trial Court awarded such testing, the same was interrupted for nine (9) months by this appeal.
The Superior Court ultimately affirmed the Trial Court’s decision, reciting all the established cases talking about presumptions and family preservation. This is a precedential decision that will eventually decide who is the real father of C.K.. But it also highlights the diminished state of the American family. Clearly, there is no intact family in this case, and it is not certain that there ever was one.
What is especially problematic in this case is that there remains a young child entering first grade who doesn’t know who his real father is; a fact that could have been easily and almost instantly decided six (6) years prior. Instead, we have an appeal by a presumptive father who declared that he did not even know his presumptive child was the subject of more than two years of litigation.
This young child has now lived with his presumptive father, David, and his presumptive siblings for nearly five (5) years. This is so, despite the fact that C.K.’s presumptive father could not even be alone with the children because of his sex offense history (recall the required Megan’s law registry, which the court states is now over). Meanwhile, the C.K.’s biological mother and her boyfriend have engaged in custody litigation to declare who gets to walk away with the title of “Father”. It appears that C.K.’s grandmothers are the true guardian angels, staying involved in C.K.’s life throughout his tumultuous short life.
The Impact of Legal Presumptions on Family Structure
As we know, there are places in the law where legal fictions help to promote consistency and stability. The stated goal of paternity presumptions, specifically, has always been to preserve the family. This case demonstrates that this presumption may do just the opposite of what the policy was intended to promote. Not only are American families more fragmented than ever before, but a paternity test is readily available with the click of a button on Amazon.com or a short trip down the road to CVS. Thus, continuing this legal fiction with such easily accessible modern science, does not seem to be in the best interests of modern children.
This appellate court’s decision underscores the systemic challenges in preserving traditional family structures, pointing to a situation where grandparents often step in as emergency support. The court's deliberation not only sought to clarify C.K.'s paternity—a question that could have been resolved years ago—but also highlighted the broader implications of familial fragmentation and the readily available, yet underutilized, genetic testing that could preempt lengthy legal battles.
Conclusion: What This Case Tells Us About Family Law Today
As we reflect on this case, it becomes clear that the legal assumptions meant to maintain family stability sometimes fail to keep pace with the realities of contemporary science and family life, leaving children like C.K. in uncertain familial waters. This case serves as a poignant reminder of the evolving definition of family and the legal system's struggle to keep up, adapt, and protect the most vulnerable.
Kish v. Kish and Knecht, 2024 Pa.Super. 23 (02/12/2024)
https://www.pacourts.us/assets/opinions/Superior/out/J-A23031-23o%20-%20105831399255039117.pdf?cb=1