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NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

The Kentucky Supreme Court continues to make strides toward greater fathers' rights.  This case is the latest, but last year it ruled in a parentage case that biological fathers have "inherent, equitable rights." (Supreme Court of Kentucky, 5/19/11)  I wrote about that case here. The new case, J.A.S. vs. Hon. Lisa O. Bushelman and C.H.E. is far more restricted in scope, applying essentially to whether a trial court has jurisdiction to hear the paternity claim of a man not married to the married mother of his child.  The holding?  The man has standing to bring the action and the court has jurisdiction to rule on it. It seems that the woman, J.A.S. was married back in October 2007 when she started an affair with C.H.E. who was technically married but in the process of divorcing his wife.  The affair lasted until about March of 2008, but during all that time, she continued having sex with her husband.  She also successfully hid the affair from him which included lying about certain incriminating evidence like telephone calls.  Sometime in the spring of 2008, J.A.S. discovered she was pregnant.  Given the fact that she had had sex with two men near the time of conception, she was unable to ascertain paternity except by DNA testing.  She and C.H.E. gathered the necessary tissue samples shortly after the baby was born in early September, 2008.  Results showed C.H.E. to be the baby's father. But of course under Kentucky law, it was the husband who was presumed to be the father and thus had rights and responsibilities.  C.H.E. was a stranger to his own child according to the law. Still, C.H.E. went to court to prove paternity which both J.A.S. and her husband resisted.  Among other things, J.A.S. denied that the child was C.H.E.'s despite having genetic testing conclusively proving his paternity. The trial court ruled that C.H.E. had the legal power to assert his paternity, the appellate court agreed and so finally did the Kentucky Supreme Court. Part of the case depends on the what the term "marital relationship" means.  The Court ruled that
"marital relationship" as used in KRS 406 .011 is not merely a synonym for sexual intercourse between a husband and wife, but is instead a collective reference to a monogamous relationship with traditional qualities, such as love, fidelity, and trust, to forge the marital bond between a husband and wife .
Whatever the legalities in Kentucky might be, in the world outside the courtroom, that makes perfect sense.  Inside the courtroom it means that, by pursuing an extra-marital affair and lying about it to her husband, J.A.S. destroyed her "marital relationship" with her husband.  The child was therefore born "out of wedlock," so the presumption of paternity by her husband no longer existed. In short, in situations in which a man has an affair with a married woman who becomes pregnant, he'll be able to claim paternity.  That in turn means he'll be able to assert claims to custody and visitation, which, depending on his fitness as a parent, may be significant or not. Of course, if the husband chooses to stay in the picture, it'll fall to the family court to sort out parenting time among three parents.  But of course that's what happens when people get divorced and one of the parents has another spouse or partner. I've long argued that presuming paternity on the part of a married man regarding a child born to his wife made a certain sense prior to genetic testing.  But we now have reliable scientific tests for paternity and we should use them - not a legal fiction - to ascertain who is the father of a child. The Kentucky Supreme Court agrees using some perfectly commonsensical language to do so.
Throughout the history of paternity adjudications, evidence sufficient to overcome the presumption of paternity or legitimacy has been limited only by the scope of biological knowledge available to prove or disprove a biological connection between a man and a child ... In Fugate v. Commonwealth, 993 S.W .2d 931, 937 (Ky . 1999), we recognized that the scientific reliability and validity of DNA testing had been generally established by the "overwhelming weight of medical and legal authority." DNA evidence is now used widely to prove beyond a reasonable doubt the guilt of those accused of crimes, and upon occasion, to exonerate innocent persons convicted of a crime. The General Assembly has expressed confidence in the ability of genetic testing to prove or disprove paternity by enacting KRS 406 .111, which creates another presumption of paternity to apply when test results indicate probability of paternity of 99% or more. We see no justification for keeping the traditional presumption of paternity locked in the science of centuries past.
That's exactly my point.  There's no reason for us to pretend that paternity is unknown or unknowable when we have the means to easily ascertain the truth.  And there are many reasons why not so pretending, i.e. not clinging to a scientifically outmoded  and legally unnecessary presumption, is not a good idea. Interestingly, the dissent in the case alluded to several of those reasons, albeit unwittingly.
[W]e hold strongly that only partners to marriage have the standing to question the legitimacy of children born during their marriage . Interlopers cannot use their own adulterous behavior as a license to invade and disrupt the matrimonial circle . The majority here deals with only one child . We speak for the thousands of children yet unborn . For centuries, the institution of marriage has "been the rock in the shadow of which children are born, shaded, protected, and nurtured."
In other words, only a husband or a wife can challenge the presumption of paternity of a child born during the term of the marriage.  All others are "interlopers."  And the presumption of paternity should remain inviolable in order to promote the institution of marriage. There are of course a number of problems with that line of argument which may explain why the judges kept it so brief. The most obvious is that in many paternity cases, probably most, it's the wife and mother who's committing adultery.  Technically in this case, C.H.E. committed adultery as well, but he was at least no longer having sex with his soon-to-be ex-wife.  J.A.S. can make no such claim.  So how he comes to be an interloper in a marriage that the wife herself has done a lot to destroy is a concept I can't quite grasp.  He's not an interloper if she invites him into a relationship, which she did. More importantly, the dissent frankly argues in favor of a wife's power over the parental rights of her paramour.  Because that is what, among other things, the presumption of paternity accomplishes.  If he can't assert his rights to be a father to his child, that matter is left in her hands.  As long as she can maintain the deceit, the biological father will have no connection with his child and the husband will act the part of the child's father in ignorance. Yes, the marriage may well go more smoothly with the husband and the father ignorant, but I call that a difficult policy choice to make.  Plumping for ignorance at the expense of knowledge, deceit instead of honesty, strikes me as a hard row to hoe, and a dangerous one. Contrary to the dissent, I believe that the knowledge that the paramour has rights he can assert in court, may give married women pause before embarking on extramarital affairs.  That would tend to strengthen the institution of marriage, not weaken it. This case of course doesn't do what should be done - require DNA testing of all children at birth.  If we do that, there will never be any doubt about who's the dad, who should pay child support and never a danger that a child's medical treatment will involve erroneous assumptions about his/her genetic heritage. But that's a matter with which state legislatures must grapple.  For now, the Kentucky Supreme Court has dealt a small blow in favor of fathers' rights and against the disreputable institution of paternity fraud. And that can't be a bad thing. Thanks to Jerry for the heads-up.

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