Passing the Starbucks Test (H.Z. v. M.B.)
On February 8, 2019, the Superior Court entered an Order in H.Z. v. M.B., 2019 Pa. Super. 33, which found that Mother was entitled to receive a second paternity test of M.B., despite the receipt of a negative result by Domestic Relations in Pennsylvania and a prior negative test result conducted by the court in New York. This case contains the kind of salacious facts, and twisty procedural machinations, that we often find in a heavily litigated paternity matter.
Mother (H.Z.) and M.B. (Father) were coworkers in New York when Mother became pregnant. Shortly before the child’s birth in April 2005, Mother filed a request for paternity and support in New York, where all the parties then resided. The child, Mother and M.B. all submitted to genetic testing in New York, which excluded M.B. as the biological father. The parties entered into a stipulation on March 28, 2006, discontinuing Mother’s New York paternity and support claims against M.B., with prejudice.
Mother, however, remained convinced that M.B. was the child’s biological father and, in December 2008, secured a private investigator to assist her in obtaining a DNA sample from M.B. The investigator followed M.B. to a Starbucks where he retrieved a coffee cup discarded by M.B. which was then submitted for testing. This “Starbucks test” showed the probability of paternity in excess of 99%.
Based on the Starbucks test, Mother filed a new action in New Jersey, where she and the child now live, but there was no personal jurisdiction over M.B. who now lives in Pennsylvania (and apparently never visits the Jersey Shore so he can be personally served). Mother then crossed the bridge to Pennsylvania and sued M.B. for paternity here.
On May 17, 2010, Mother filed a third request for child support, this time in Montgomery County, Pennsylvania, again relying on the Starbucks test. M.B. filed a motion in limine to exclude the test and dismiss Mother’s claims. The parties first litigated whether Mother was precluded from asking for additional testing based on the New York test result. Because it takes forever to litigate these things, after excluding the Starbucks test in May 2015, the trial court concluded – and, on appeal by M.B., the Superior court agreed – that Mother could obtain another test in Pennsylvania. It is now 2016. The child is 11 years old.
On July 28, 2016, all parties submitted to genetic testing via buccal swab at the Montgomery County Domestic Relations Office, where a technician swabbed the inside of each party’s cheek to gather DNA. The first sample submitted by M.B. was “insufficient for testing,” and over Mother’s objections, a second test – presumably of M.B. – was carried out the following month, again by buccal swab. Like the previous New York genetic test, the Montgomery County test excluded M.B. as the child’s father.
Upon receiving the test results, Mother wrote a letter to the court requesting additional testing and alleging various improprieties in the buccal swab testing, including test results that seemed to show that the genetic profiles for M.B. from the New York genetic test, Starbucks test and the Montgomery County test all differed. M.B. subsequently requested a court order to dismiss Mother’s claims with prejudice and award him counsel fees.
Without a ruling, nearly 18 months later, the Montgomery County court held a new hearing on whether Mother could obtain another round of testing in the form of “buccal swab, blood, and hair follicle testing.” Not surprisingly, M.B. vigorously objected. Mother began her case and presented a number of witnesses who raised what appeared to be evidence of irregularities in M.B.’s testing, including potential contamination. At the end of the day, but before the conclusion of testimony, the trial court stated two additional days of trial would be scheduled so that both parties could complete their case, which did not happen. Instead, seemingly all on its own, the trial court entered an order determining M.B. was the father of the child. As he had done before, M.B. appealed.
On appeal, M.B. presented several arguments as to why the trial court could not unilaterally conclude that he was the biological father and that the court should be bound by the New York and Montgomery County court-ordered tests excluding him as the father of the child. The Superior Court did not agree.
First, the Superior Court determined that the Pennsylvania statutes and rules cited by M.B. under the Uniform Act on Blood Tests to Determine Paternity (23 Pa.C.S.A. §5104) applied only to blood testing, not buccal swabs as used in this instance. Second, the Court also determined that the language of Pa.R.C.P. 1910.15 entitled parties to a hearing on paternity unless the parties stipulate to a result, which did not occur here. Finally, the Court rejected that the test results alone are conclusive of paternity, explaining that the results serve as clear and convincing evidence to establish a temporary support order until the determination of paternity may be made by a judge. The Court also rejected M.B.’s argument that the trial court was bound to accept the results from the New York and Montgomery County tests, finding that adopting this approach would bind a mother to accept negative paternity test results – even if she possessed evidence demonstrating the unreliability of the result – and allow putative fathers to challenge a positive paternity result, encouraging manipulation of genetic testing by putative fathers because a negative result would be “utterly unassailable” no matter how secured. This outcome was rejected as the intent of the statute’s drafters and instead interprets the language to allow both parties equal ability to challenge a result.
However, the appellate court agreed with M.B. that the trial court abused its discretion in determining paternity before the conclusion of the hearing on all relevant evidence and by relying on the excluded Starbucks test in its result. Ultimately, rather than dismiss in favor of M.B. or direct a verdict that M.B. is not the father, the Superior Court found that Mother is entitled to an additional genetic test at her own expense under 23 Pa.C.S. §4343 and remanded for additional genetic testing. Accordingly, even though M.B. technically won his appeal, the result is precisely the outcome that Mother had requested in the interrupted hearing – an additional genetic test of M.B. of her now almost 14-year-old child.
So, what does this case tell practitioners about genetic testing and paternity? First and foremost, overreliance on DNA testing done by a court is not necessarily dispositive since either party can ask for a judicial determination of a different result unless the result is stipulated to by the parties. If your client swears that the other side will defraud the test, then make sure you preserve your objections by not stipulating and consider a different testing method if possible. Next, a Pennsylvania court will not apply the Uniform Act on Blood Tests to Determine Paternity to buccal swab testing. This is problematic since most states and counties use buccal swab testing to determine paternity, including Pennsylvania, New Jersey and New York. This ruling throws some confusion on whether buccal swab tests done in other jurisdictions will be accepted by a Pennsylvania court.
Stay tuned for results of the remand to the trial court and additional genetic testing. In the meantime, if you have taken the time and the effort to defraud a paternity test, be very careful where you toss your Starbucks cup.
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