¶1dissenting:
¶21111 respectfully dissent. I would find that neither the presumption of paternity *1005nor principles of estoppel apply to this difficult and complex custody case.
¶3¶ 2 Appellant Walter Wiltschek (“Walter”) asserts that he is the biological father of the child in question. He also asserts that Monica Del Carmen Gomez Perez (“Monica”), a named appellant, is the child’s biological mother. The petition for custody is brought by appellee, Karen A. Tregoning (“Karen”), who is the former wife of Walter. She does not allege any biological relationship to the child.
¶4¶ 3 Walter argues that he should not be subject to paternity testing because he has acted as the child’s father for a period of years and therefore he, Walter, would be estopped from asserting otherwise if he attempted to do so. In addition, he draws the court’s attention to the fact that he is named as the child’s father on her birth certificate, that he is the only father she has ever known, that her American citizenship is at risk if he is deemed not to be her biological father and that the child’s putative biological mother, Monica, entered into a stipulation agreement granting him full custody.
¶5¶ 4 Karen argues that Walter’s name on the birth certificate was fraudulent and done only to allow him to leave Chile unimpeded, with the child in his custody. She draws the court’s attention to the fact that Walter has traveled throughout the world in the years since the child’s birth and that Walter’s marriage to Monica, the putative biological mother, was invalid because he was already married to her (Karen) at the time. She also states that she and Walter divorced in 1995 but the child continued to live with and be cared for by her. She claims (and Walter concedes) that Walter has never paid child support and that the longest amount of time Walter spent living with the child (ten months) occurred some five years ago.
¶6¶ 5 The trial court, faced with the complicated events of this case, recognized the need for DNA testing, testimony from the child’s putative biological mother and the appointment of a guardian ad litem to represent the child. The court ordered all of the above, while at the same time returning the matter to the status quo, i.e., custody with Karen and visitation with Walter. I can find no error in this interim resolution and instead see it as the most appropriate way in which to proceed.
¶7¶ 6 The presumption of paternity is plainly inapplicable. Not only is there no intact family or marriage to preserve, there was no intact family into which the child was born. Fish v. Behers, 559 Pa. 523, 741 A.2d 721, 723 (1999); Brinkley v. King, 549 Pa. 241, 701 A.2d 176, 181 (1997). Further, the principle of estoppel does not apply here, as there is little or no evidence that Karen held the child out as Walter’s daughter. Instead, according to Karen’s testimony, the parties engaged in a rather complex ruse designed to allow them continued custody of the little girl at the center of this controversy.
¶8¶ 7 I would find that Walter’s failure to support the child and his extended absences from her, coupled with the fact that she has been in Karen’s care for several years, make application of estoppel principles against Karen inappropriate. Further, I believe the methods employed by the trial court to resolve this case are not only proper under the law, but also appropriate under the circumstances. In particular, I would rely on 23 Pa.C.S.A. § 5104, the statute which empowers the court to order testing. Section 5104 clearly leaves to the court the discretion to order testing where appropriate.
¶9¶8 Rather than reverse the order entered below, I would affirm it and permit the matter to proceed. That way the trial judge, who is in the best position to assess *1006the child’s best interests, as well as evaluate the parties’ rights and motives, will be privy to as much relevant information as possible in reaching his decision on custody.