In R.W.E. v. A.B.K. and M.K., -- A.2d --, 2008 WL 4684341, Mother and Putative Father were involved in an on-again/off-again relationship between February 2002 and November 2003. During one of the parties’ brief separations, Mother became sexually involved with another man (hereinafter referred to as “Father”). Soon thereafter, Mother and Putative Father reconciled and she ceased relations with the Father. Meanwhile, Father was deployed to Kuwait by the National Guard. Mother discovered she was pregnant in March 2004. Mother told Putative Father that there was a “50-50 chance” another man fathered her unborn child. They agreed that they would never tell Father about the pregnancy.
Putative Father and Mother generally resided together for the duration of her pregnancy and he was present at the child’s birth on November 12, 2004. Putative Father signed an acknowledgment of paternity a few days after the child’s birth, and was named as the father on the child’s birth certificate. Within a year, the couple separated again. Custody actions were filed on behalf of both parties (Mother and Putative Father).
It was not until January 2006 that Mother informed Father of his possible parentage. He immediately asserted his parental rights and became active, both emotionally and financially, in the child’s life. Father was soon joined as a defendant in the custody litigation. Ultimately, genetic testing confirmed that he was the biological father of child. Soon thereafter, Father filed a Petition to Vacate the Acknowledgment of Paternity. The trial court found that Mother and Putative Father’s “agreement” was intended to defraud Father of his paternal rights, constituting fraud and, therefore, it vacated the acknowledgment of paternity.
In an en banc opinion, the Superior Court emphasized that, when an allegation of fraud is injected in an acknowledgment of paternity case, the tone and tenor of the matter changes. The Court explained that silence may be characterized as a fraudulent misrepresentation when good faith requires an expression. The Court found that Mother and Putative Father’s agreement to choose Putative Father as the father of Mother’s unborn child, to forgo genetic testing to conclusively establish paternity, and to refrain from informing Father of his possible parentage, was intended to defraud biological Father of his paternity rights warranting a successful thirdparty challenge under the Acknowledgment of Paternity Statute. Consequently, the Superior Court affirmed the trial court’s ruling, holding that it properly vacated Putative Father’s acknowledgment of paternity and adjudicated Father the biological father of the child.