J.N.R v. Hon Joseph O'Reilly Judge, Jefferson Family Court

RENDERED : APRIL 24, 2008
TO BE PUBLISHED
6;VUyrrMr (~Vurf of 'Pt 4'
2007-SC-000175-MR
J .N.R. AND J .S .R .
ON REVIEW FROM COURT OF APPEALS
V CASE NUMBER 2006-CA-002497
JEFFERSON CIRCUIT COURT NO. 06-CI-503734
HONORABLE JOSEPH O'REILLY, JUDGE,
JEFFERSON FAMILY COURT; AND
J .G .R., REAL PARTY IN INTEREST APPELLEES
OPINION OF THE COURT BY JUSTICE MINTON
REVERSING AND REMANDING
The Court of Appeals denied relief to a wife and her husband who petitioned to
prohibit the family court from adjudicating the paternity of a man who claimed to be the
biological father of a baby born to the wife . On appeal, the principal issue is whether
Kentucky's courts have jurisdiction to decide a man's claim of paternity of a child born to
a woman who, at the time of the child's birth, was married to another man . We hold that
Kentucky's paternity statutes do not grant subject-matter jurisdiction to our courts to
determine paternity claims where, as here, there is no evidence or allegation that the
marital relationship ceased ten months before the child's birth. Therefore, we conclude
that the family court was attempting to proceed without jurisdiction and that the Court of
Appeals erred when it failed to grant the writ of prohibition .
I . FACTS .
J.G.R. filed a Petition for Custody and Support in the family court, alleging that
DNA tests confirmed him to be the biological father of J.A.R (Child), a three-month-old
baby boy, who lived with his mother, J .N .R. (Wife) .
Wife moved to dismiss the petition, arguing that J .G .R. lacked standing to bring it
and that the family court had no jurisdiction to determine (1) custody of Child because
J .G.R. had not been lawfully adjudicated to be his father and (2) paternity of Child
because Child was not born out of wedlock since Wife was married to J .S.R . (Husband)
when Child was born and at the time the petition was filed . Wife further asserted the
continued vitality of the legal presumption that a child born to a married woman is
presumed to be the child of her husband . She argued that the presumption could not
be rebutted by "a stranger to the marriage ." The family court refused to dismiss J .G .R .'s
petition.
Wife and Husband then sought a writ from the Court of Appeals to prohibit the
family court from proceeding on J.G .R.'s claims . The Court of Appeals denied the writ,
holding that Wife and Husband failed to show irreparable injury and lack of adequate
remedy by appeal . The Court of Appeals further stated that "the only decision made by
the [family] court pertaining to J .G .R.'s petition is that it will go forward on the paternity
docket" and noted the family court had not made any rulings adjudicating any claims .
Husband and Wife had also requested a writ of prohibition forbidding the family court from
ordering mediation regarding holiday visitation with Child . The Court of Appeals granted this
request for relief, and the Court of Appeals' decision in regard to court-ordered mediation
concerning holiday visitation is not a subject of this appeal .
II . ANALYSIS .
A. Court of Appeals Applied Wrong Standard to Writ of Prohibition Issue .
The Court of Appeals denied the writ of prohibition based upon Wife and
Husband's failure to show irreparable injury and lack of adequate remedy by appeal . If
the Wife and Husband had alleged only that the family court was acting erroneously
within its jurisdiction, a showing of irreparable injury and lack of adequate remedy by
appeal would have been required for the writ to issue. But recent case law has made
clear that a showing of irreparable injury and lack of adequate remedy by appeal is not
required for issuance of a writ of prohibition when the trial court is acting outside its
jurisdiction . A court vested with supervisory control should grant a writ of prohibition
when the lower court is acting outside its jurisdiction and "there is no remedy through an
application to an intermediate court." Despite Wife and Husband's arguments that the
family court lacked jurisdiction to hear the case, the Court of Appeals denied the writ on
the erroneous grounds of Wife and Husband's failure to show irreparable injury and lack
of adequate remedy by appeal . The Court of Appeals failed to analyze whether the
family court had jurisdiction to hear and decide J.G .R.'s petition.
B . Family Court Lacked Subject-Matter Jurisdiction to Hear Case .
Since personal jurisdiction is not at issue, we focus on whether the family court
had subject-matter jurisdiction over this case. Subject-matter jurisdiction is defined as
Hoskins v. Maricle , 150 S.W.3d 1, 10 (Ky. 2004).
Id. ("A writ of prohibition may be granted upon a showing that (1) the lower court is
proceeding or is about to proceed outside of its jurisdiction and there is no remedy through
an application to an intermediate court; or (2) that the lower court is acting or is about to act
erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal
or otherwise and great injustice and irreparable injury will result if the petition is not
granted.")
"(j]urisdiction over the nature of the case and the type of relief sought[,] the extent to
which a court can rule on the conduct of persons or the status of things ." a From the
outset, Wife and Husband have disputed the family court's subject-matter jurisdiction to
accept a petition in which the alleged biological father of a child, born to a woman who
is married to another man, seeks to establish paternity, custody, support, and visitation
of the child .
We must look to our statutes to see whether our trial courts have been granted
subject-matter jurisdiction over a case like this one. We do not explore whether our
statutes conferring subject-matter jurisdiction effectuate sound public policy, reflect the
modern realities of DNA testing, or recognize the disappearance of ancient legal
disabilities associated with being born out of wedlock. And we do not address the
constitutionality of the statutes as written . Although the parties have debated whether
an unmarried biological father has due process or equal protection rights to seek the
relief J .G .R. seeks here, J .G.R . has not argued the unconstitutionality of the paternity
statutes as written nor served Kentucky's Attorney General to challenge the
constitutionality of any statute .5 So we are left to examine the words of our statutes to
BLACK'S LAW DICTIONARY (8th ed. 2004).
KRS 418 .075 states, in pertinent part, that:
When declaratory relief is sought, all persons shall be made parties who have or claim any
interest which would be affected by the declaration, and no declaration shall prejudice the
rights of persons not parties to the proceeding .
In any proceeding which involves the validity of a statute, the Attorney General of the
state shall, before judgment is entered, be served with a copy of the petition, and shall
be entitled to be heard, and if the ordinance or franchise is alleged to be
unconstitutional, the Attorney General of the state shall also be served with a copy of
the petition and be entitled to be heard .
In any appeal to the Kentucky Court of Appeals or Supreme Court or the federal
appellate courts in any forum which involves the constitutional validity of a statute, the
Attorney General shall, before the filing of the appellant's brief, be served with a copy
see whether the family court had jurisdiction to hear and adjudicate J .N .R.'s paternity
petition .
C. No Subject-Matter Jurisdiction Over This Case Under KRS Chapter 406 .
Subject-matter jurisdiction over paternity proceedings for all of our trial courts is
governed by Kentucky Revised Statutes (KRS) Chapter 406, also known as the Uniform
Act on Paternity . 6 KRS 406 .051(1) provides the district court with subject-matter
jurisdiction over "an action brought under this chapter" to establish support for "children
born out of wedlock ." KRS 406 .051(2) states that the circuit court and district court
share concurrent jurisdiction over custody and visitation issues "in cases where
paternity is established as set forth in this chapter." And KRS 23A.100(2)(b) confers the
general jurisdiction of the circuit court on a family court division of the circuit court for
proceedings under the Uniform Act on Paternity.
Despite the fact that KRS 406 .021 states that a paternity complaint may be filed
by a "putative father, ,7 a term not defined in KRS Chapter 406, the instant case is not an
of the pleading, paper, or other documents which initiate the appeal in the appellate
forum . This notice shall specify the challenged statute and the nature of the alleged
constitutional defect.
See also Kentucky Rules of Civil Procedure (CR) 24.03 ("When the constitutionality of an act
of the General Assembly affecting the public interest is drawn into question in any action,
the movant shall serve a copy of the pleading, motion or other paper first raising the
challenge upon the Attorney General .").
KRS 406.170 ("This chapter may be cited as the Uniform Act on Paternity.").
An earlier version of KRS 406.021 did not mention any type of father as a potential
candidate for filing a paternity complaint despite expressly providing that the mother, child,
or state agency providing support for the child could file such a paternity complaint . Under
this earlier version, we stated that "[t]he statute does not afford the father the right to come
into court to have his paternity determined" in Sweat v. Turner , 547 S.W .2d 435, 436 (Ky.
1977). But Sweat recognized the right of the biological father to seek custody of his child
(born to an unmarried mother who had since passed away) without a previous judicial
determination of paternity . Id. at 437. In Cummins v. Cox, 799 S.W.2d 5 (Ky. 1990), while
stating that "[t]here is no statutory means in this state by which an illegitimate father can
legitimatize a child born out of wedlock without the direct and active cooperation of the
action "under this chapter" ; and KRS 406.021 does not allow for paternity to be
established because KRS Chapter 406 limits its applicability to cases of children "born
out of wedlock" and establishes a definition of "born out of wedlock" that the facts of this
case do not satisfy . KRS 406 .180 (governing applicability of Chapter 406) states, in
pertinent part, that "[t]his chapter applies to all cases of birth out of wedlock : (1) [w]here
birth occurs within this state[.]" And KRS 406 .011 defines who is included and who is
not included in the term "born out of wedlock :"
A child born during lawful wedlock, or within ten (10) months thereafter, is
presumed to be the child of the husband and wife . However, a child born
out of wedlock includes a child born to a married woman by a man other
than her husband where evidence shows that the marital relationship
between the husband and wife ceased ten (10) months prior to the birth of
the child .
We note that the General Assembly chose to enact a narrow definition of an out-
of-wedlock birth that differs distinctively from the proposed definition of an out-of-
wedlock birth proposed by the drafters in the 1960 Uniform Act on Paternity. Section 1
of the Uniform Act on Paternity (1960) states that: "[a] child born out of wedlock
includes a child born to a married woman by a man other than her husband . ,8 The
official commentary to this section mentions Kentucky's variation from the Uniform Act
draft .9
mother", id. at 6-7, we noted in a footnote that KRS 406.021 had been amended in 1990 to
allow a putative father to file a paternity complaint. Id. at 7, n.1 . Cummins recognized that
the biological father of a child born to an unmarried mother had standing to sue for the
child's wrongful death and could inherit from this child born out of wedlock . Id. at 7 . The
children at issue in Sweat and Cummins were born to mothers who were unmarried at the
time of conception and birth, and we did not consider in either case the rights of an alleged
biological father to file a paternity complaint concerning a child born to a mother married to
another man.
Unif. Act on Paternity § 1 (1960), ULA PATERNITY § 1 (2001 Main Volume, 2007 Electronic
Pocket Part Update).
By the plain language of Chapter 406, that chapter only applies to births out of
wedlock . And it defines births out of wedlock as including births to married women
where evidence shows that the husband and wife's "marital relationship" ceased ten
months before the child's birth.'° In the instant case, we have no allegation that Wife
and Husband's marital relationship had ceased ten months before Child's birth . So
Child does not meet the statutory definition of a child born out of wedlock, and
Chapter 406 does not grant the family court subject-matter jurisdiction or give J .G.R.
standing to seek a paternity determination under Chapter 406."
We recognize that the Court of Appeals rejected an argument in Montgomery v.
McCracken ' 2 that "a child born to a married woman can be found to have been born out
of wedlock only if the spouses' marital relationship ended at least ten months prior to the
child's birth ."'3 But the holding in Montgomery depended in large part upon the effect of
a non-appealed judicial finding from an earlier divorce proceeding to the effect that the
woman's husband was not the father of the child:
Here, although the spouses' marital relationship did not fall into the
category of having ceased ten months prior to the child's birth, it is
uncontroverted that the husband was found in an earlier circuit court
proceeding to not be the child's father. That finding is not before us on
appeal . That being so, the trial court certainly did not err by concluding
that the presumption of legitimacy had been overcome by evidence "so
KRS 406 .011 .
We note that our predecessor-court recognized that "a biological father of a child born out of
wedlock would have the right of visitation with his child" on constitutional grounds in
Phillips v. Horlander , 535 S.W.2d 72, 74 (Ky. 1975). But the child at issue there met
KRS Chapter 406's definition of a child born out of wedlock because his parents were
unmarried both at the time of the birth and at the time the court heard the case . See id.
at 73. Again, the child at issue in the instant case is not a "child born out of wedlock" as
defined by KRS Chapter 406.
12
802 S.W.2d 943 (Ky.App. 1990).
13
Id. at 944.
 clear, distinct and convincing as to remove the question from the realm of
reasonable doubt. 04
The Montgomery court then cited in support of this proposition two cases in which the
husband's paternity was successfully challenged despite the mother having been
married at the time of the child's birth . But, in both of the cases cited, some evidence
(albeit disputed) was presented that marital relations ceased ten months before the
child's birth-in fact, both cases involved the separation of the spouses . 16
The Montgomery court then stated that subject-matter jurisdiction to determine
paternity upon the mother's motion was proper because of the overwhelming proof that
the husband was not the father of the child:
Since the child therefore by implication was found by the circuit court to
have been "born out of wedlock" to "a married woman by a man other than
her husband," the district court was clearly vested with subject matter
jurisdiction to determine paternity."
To the extent that Montgomery v. McCracken and other Kentucky cases find subject-
matter jurisdiction to exist in any court of the Commonwealth over paternity actions
involving (1) a child born "to a married woman by a man other than her husband" who
cannot satisfy (2) the narrow definition embraced by the General Assembly that a child
born out wedlock includes one where the husband and wife ceased marital relations ten
14
15
Id., citing Simmons v. Simmons , 479 S .W.2d 585, 587 (Ky. 1972); Bartlett v. Com . ex rel .
Calloway , 705 S.W.2d 470 (Ky. 1986) .
16
See Simmons , 479 S.W .2d at 586 ("The wife contends and the husband denies that they
engaged in sexual relations during their separation[,]" which occurred ten months before the
child's birth) ; Bartlett , 705 S.W.2d at 471 (conflicting testimony as to when spouses
separated and whether they engaged in sexual relations during their separation .).
17
Montgomery, 802 S.W.2d at 944.
months before the child's birth, Montgomery v. McCracken and other authority to the
contrary are overruled .
Montgomery v. McCracken is inconsistent with the earlier holding in Department
of Economic Security v. Shanklin . 18 In Shanklin , a state agency sought to recoup
support payments made for a child born eight months after her mother's divorce from
Shanklin . Shanklin filed a motion to dismiss the action, stating that the action was time-
barred, citing the then-existing statute of limitations appearing in Chapter 406 for
support of a child born out of wedlock . The trial court granted Shanklin's motion.'9 Our
predecessor-court quoted the presumption of legitimacy in KRS 406.011, as well as the
language of KRS 406.180-neither of which has been amended since Shanklin 2°-and
then reversed, stating that:
The Uniform Act on Paternity was formulated in 1960 . The Kentucky
Legislature, by a 1972 amendment, varied the language of the
1960 Uniform Act in two instances : (1) In defining what was meant by the
phrase "born out of wedlock" by adopting the language of KRS 406.011,
and (b) by substituting for a four-year statute of limitations contained in the
1960 Uniform Act, the language of KRS 406.031 . [Omitted portion
discusses how legislature tried to remedy uncertainty in 1960 Uniform Act
limitations provision through adoption of KRS 406.031 .]
We would be less than candid if we did not point out that the
language used for the clarification is surely no model of precision .
According to KRS 406 .011, a child born during lawful wedlock or within ten
months thereafter, is presumed to be the child of the husband and wife.
This is qualified by the provision that a child born out of wedlock includes
a child born to a married woman by a man other than her husband where
evidence shows that the marital relationship between the husband and
wife ceased ten months prior to the birth of the child .
18
514 S.W.2d 682 (Ky . 1974).
19
Id. at 683.
Zo
Id. at 683-84.
 Under the Uniform Reciprocal Enforcement of Support Act, 1211 the
issue of paternity may be raised by the defendant unless it has been
previously judicially determined . It is our conclusion that, despite the
confusing language, it was not the intent of the legislature to bar such
action within three years of the date of birth of a child born with the
presumption of legitimacy.22
In other words, the Shanklin court found Chapter 406 inapplicable to that case
because the child at issue was not a child "born out of wedlock" as defined by
KRS 406 .011 . Since the child was "born with the presumption of legitimacy," the father
was not barred from disputing paternity by the limitations provision in Chapter 406; but
the father could still dispute paternity because Chapter 407 (URESA) allowed him to
challenge paternity so long as it had not been previously established in court . Likewise,
in the instant case, the child was not born out of wedlock, as defined by Chapter 406, so
Chapter 406 does not apply and does not confer subject-matter jurisdiction on the family
court or standing on J.G .R. to have paternity determined and custody/visitation matters
decided .
We recognize that the General Assembly may have chosen to bar paternity suits
where there is no allegation of a cessation of marital relations for the ten-month period
in part because of difficulties in accurately determining the biological father of a child at
the time these statutes were enacted or amended to their present form . In view of
modern DNA testing, the legislature might reasonably choose to amend the statutes
again to recognize an alleged biological father's right to have paternity determined in
court of a child born to a mother married to another man even where (as here) there is
no evidence or allegation that marital relations ceased ten months before the child's
21
The Uniform Reciprocal Enforcement of Support Act (URESA) was then and is now found in
KRS Chapter 407.
22
!d. at 684-85.
10
birth. But the choice is a policy decision that belongs to the General Assembly. And
since the General Assembly has not yet chosen to amend KRS Chapter 406 in such a
manner, we are without authority to amend the law for them .
It is the absence of evidence or even allegations that the marital relationship
between Wife and Husband ceased ten months before Child's birth that bars J .G .R .'s
paternity action, not J .G .R.'s status as a "stranger to the marriage ." We do not reach
the Wife and Husband's argument that only parties to the marriage can challenge the
presumption of legitimacy under KRS 406.011 . We do note that the plain language of
KRS 406.011 does not say who may challenge the presumption of legitimacy but only
says under what circumstances a child born to a married woman can be considered a
child born out of wedlock . In fact, if the required threshold is met, showing that marital
relations ceased ten months before the birth of the child, it would seem possible that the
alleged biological father may file a paternity complaint because KRS 406.021
specifically states that such a complaint may be filed by the "putative father ." The term
"putative father" is not defined by the statute, but it is defined by BLACK'S LAW
DICTIONARY (8th ed . 2004) as "[t]he alleged biological father of a child born out of
wedlock ."
23
J .G.R.'s counsel orally argued that there are "dueling presumptions" in KRS Chapter 406 :
the presumption in KRS 406.011 versus the presumption in KRS 406.111 (regarding an
expert's conclusion as to paternity based on genetic testing). But the applicability of
Chapter 406 is limited to cases in which children are born "out of wedlock."
KRS Chapter 406.011 expressly defines when a child born to a married woman is included
as a child born "out of wedlock" ; KRS 406.111 does not expressly define the term "out of
wedlock" and, thus, does not impact the applicability of Chapter 406. Rather, the child
would have to be determined to be born "out of wedlock" under KRS 406 .011 for the court to
have the authority to order genetic testing under KRS 406.081 and to admit such test results
in evidence under KRS 406.091(3) before applying the rebuttable presumption concerning
expert conclusions on paternity based on genetic testing as found in KRS 406.111 .
D. No Subject Matter Jurisdiction Under KRS 403 .270 .
Not relying solely on Chapter 406, J.C .R . also contends that as a biological
parent, he has standing to seek custody under KRS 403 .270. KRS 403.270(2) provides
that a court shall determine custody in the child's best interests and that "equal
consideration shall be given to each parent." But nowhere in KRS Chapter 403 is the
word "parent" defined .
Furthermore, KRS 403 .270 does not govern whether a court has subject-matter
jurisdiction over custody proceedings in this type of case or whether an alleged
biological father has standing to pursue custody or visitation in this situation .
KRS Chapter 403 is entitled "Dissolution of Marriage-Child Custody ." The statutes in
Chapter 403 generally give courts of general jurisdiction the power to grant dissolutions
24
See also Boone v. Ballinger , 228 S .W.3d 1, 12, n.7 (Ky.App. 2007) ("Unlike some states,
Kentucky does not have statutory definitions that describe `legal' fatherhood . The
Termination of Parental Rights chapter, KRS Chapter 625, simply refers to `biological
parents' and the `putative father.' The UAP, KRS Chapter 406, refers to `father' and `alleged
father,' neither of which is defined . The Parent and Child chapter, KRS Chapter 405, refers
to `father' without definition . KRS Chapter 403, regarding Dissolution of Marriage-Child
Custody, contains no definition of `father.' Case law supports the conclusion that in cases
such as this a child's legal father is the husband of the marriage into which the child was
born unless a different paternity has been formally adjudicated .") ( Boone addressed the
question of whether, upon dissolution of a marriage, the wife and the biological father of two
children born during her marriage to her husband were equitably estopped from asserting
that the husband was not the legal father of these two children .).
We note that one other Kentucky family law-related statute (KRS 405.405) expressly adopts
the definitions provided in KRS 205.710 (applicable to child support recovery actions in
Public Assistance and Medicaid Assistance actions) as applicable to KRS 405.430-
KRS 405.530 (administrative process for child support), which includes the following
definition of parent:
(14) "Parent" means a biological or adoptive mother or father of a child born in
wedlock or a father of a child born out of wedlock if paternity has been
established in a judicial proceeding or in any manner consistent with the laws of
this or any other state, whose child is entitled to support, pursuant to court
order, statute, or administrative determination[ .]
However, KRS Chapter 403 (governing custody) does not expressly adopt this or any other
specific definition of parent.
12
and annulments of marriages and decrees of legal separation--in general, the power to
terminate marriages .25 As part of its jurisdiction to dissolve marriages, the family court
may also divide property, order spousal maintenance, and order child support for any
children born of the marriage . Also, when granting a divorce, the trial court must
determine the custody of children born to the marriage in accordance with the standards
enunciated in KRS 403.270 . But KRS 403.270 does not govern whether a trial court
has subject-matter jurisdiction to determine custody of children in cases not involving a
dissolution of marriage .
Where paternity has been established under Chapter 406, subject-matter
jurisdiction regarding custody and visitation issues is governed by KRS 406.051, which
states that:
(1) The District Court has jurisdiction of an action brought under this
chapter and all remedies for the enforcement of judgments for
expenses of pregnancy and confinement for a wife or for education,
necessary support, or funeral expenses for children born out of
wedlock. An appeal may be had to the Circuit Court if prosecuted
within sixty (60) days from the date ofjudgment. The court has
continuing jurisdiction to modify or revoke a judgment for future
education . All remedies under the uniform reciprocal enforcement of
support act are available for enforcement of duties of support under
this chapter.
(2) The District Court may exercise jurisdiction, concurrent with that of the
Circuit Court, to determine matters of child custody and visitation in
cases where paternity is established as set forth in this chapter. The
District Court, in making these determinations, shall utilize the
provisions of KRS Chapter 403 relating to child custody and visitation .
The District Court may decline jurisdiction if it finds the circumstances
of any case require a level of proceedings more appropriate to the
Circuit Court .
25
See, e.g., KRS 403.010, KRS 403.120, and KRS 403 .140. KRS 403.041 and KRS 403.042
also grant the power to annul divorces and legal separations .
26
See generally KRS 403.160 to KRS 403 .250.
13
Although KRS 406.051 states that the same standards provided in Chapter 403
for divorce cases shall govern custody determinations conducted in conjunction with
paternity proceedings, KRS 406.051 and Chapter 406 as a whole govern subject-matter
jurisdiction in this type of case, not KRS 403.270 or any other provision of Chapter 403.
So KRS 406 .051(2) grants the district court and circuit court concurrent jurisdiction (and
by implication, family court, which combines district and circuit court jurisdiction) over
custody and visitation where paternity is determined under Chapter 406 . But
Chapter 406's applicability is expressly limited to cases of children "born out of
wedlock," and Child does not meet the General Assembly's narrow definition of a child
born out of wedlock . 27
From the plain language of our statutes, we hold that J.G .R lacks standing and
the family court lacks jurisdiction to determine paternity, custody, and visitation under
the circumstances presented in this case.
27
But see Denbow v. Harris , 583 A.2d 205 (Me. 1990), where the Supreme Judicial Court of
Maine (Maine's highest court) held that a mother could maintain a paternity action against
the alleged biological father despite the fact that the child was conceived during her
marriage to another man and despite the Maine legislature's omission .of the definition of a
child born out of wedlock as found in the Uniform Act on Paternity (1960) while otherwise
following this Uniform Act. Id. at 206-07. The Maine court rejected an argument that "the
Maine Legislature intended to limit paternity actions to instances to where children were
born to an unmarried woman," instead deciding that the legislature had simply left out
"definitional surplusage" since an "out of wedlock" birth was commonly defined as "with the
natural parents not married to each other." Id. at 207, citing WEBSTER's THIRD NEW
INTERNATIONAL DICTIONARY UNABRIDGED 2592 (1986) . We note, however, that although
Maine's legislature had omitted the 1960 Uniform Act draft definition of "out of wedlock,"
Maine's legislature did not substitute another narrower definition of "out of wedlock" as
Kentucky's legislature did in KRS 406.011 .
14
Ill . CONCLUSION .
For the foregoing reasons, we reverse the decision of the Court of Appeals and
remand the case to the Court of Appeals for issuance of a writ of prohibition consistent
with this opinion .
All sitting . Lambert, C.J ., concurs . Cunningham, J ., concurs in result only by
separate opinion in which Scott, J., joins. Scott, J ., concurs in result only by separate
opinion in which Cunningham, J ., joins. Abramson, J ., dissents by separate opinion in
which Schroder, J., joins . Noble, J., dissents by separate opinion .
COUNSEL FOR APPELLANTS :
Charles E . Ricketts, Jr.
Ricketts & Platt, PLLC
Ridgeway Building
4055 Shelbyville Road
Louisville, KY 40207-3106
Louis I . Waterman
Fore, Miller & Schwartz
200 South Fifth Street
First Trust Centre, Suite 700 North
Louisville, KY 40202
COUNSEL FOR APPELLEE JOSEPH W . O'REILLY:
Honorable Joseph W. O'Reilly
Jefferson Family Court, Division 7
Judicial Center
700 West Jefferson Street
Louisville, KY 40202
COUNSEL FOR APPELLEE J .G.R., REAL PARTY IN INTEREST :
Troy D. DeMuth
John H. Helmers, Jr.
Helmers, DeMuth & Walton, PLC
429 W . Muhammad Ali Blvd .
200 Republic Bldg .
Louisville, KY 40202
RENDERED : APRIL 24, 2008
TO BE PUBLISHED
uprrme (~vurf of "
'PtrufurhV
2007-SC-000175-MR
J .N .R . AND J.S.R. APPELLANTS
ON REVIEW FROM COURT OF APPEALS
V. CASE NUMBER 2006-CA-002497
JEFFERSON CIRCUIT COURT NO. 06-CI-503734
HONORABLE JOSEPH O'REILLY, JUDGE, APPELANTS
JEFFERSON FAMILY COURT; AND
J .G .R., REAL PARTY IN INTEREST
OP INION BY JUSTICE CUNNINGHAM
CONCURRING IN RESULT ONLY
I concur with Justice Scott's opinion in which he concurs in result only. I am also
certain that Justice Scott joins me in commending the very well-written opinion of
Justice Minton writing on behalf of the majority . Nor do I wish to disparage in any way
the very ably stated dissents of Justices Abramson and Noble, whose opposing
viewpoints I hold in high respect .
Unlike the reasoning of the majority, Justice Scott and I are both of the opinion
that only parties to the marriage can challenge the presumption of legitimacy under KRS
406 .011 . We hold this view as being inherent with the long-standing legal status of
marriage.
This case is about something much larger than statutory interpretation . This
case is squarely about the legal status of marriage in the Commonwealth of Kentucky
today.
Here, a married couple wishes to be left alone from the allegations of an
interloper who wishes to assert a claim of fatherhood to a child born during the couple's
marriage - a marriage which remains intact at this writing .
While the legal status of marriage in this early 21 St century appears to be on life
support, it is not dead .
As I consider a claim made by an interloper to a marriage, I must pause to
consider what rights, protections, benefits, and privileges the matrimonial covenant
afford to those joined together in a relationship sanctioned by law. Beginning with the
well-meaning legislation of no-fault divorce in 1972, the law has diluted the legal status
of marriage . With the adoption of no-fault divorce, this grand historical contract has lost
its consideration . Further, in Hoye v. Hoye , 824 S .W.2d 422 (Ky. 1992), the Court
eliminated the tort of intentional interference with the marital relation, also known as
alienation of affections . This was done with a bow to the modernistic notions of
morality . The Court reasoned that the innocent spouse was barred by the infidelity of
the errant spouse from obtaining redress . With the abolition of the tort of alienation of
affections, the innocent victim of betrayal has been left without recourse against the
interloping adulterer. But not for the decision of the majority here today, a married
couple, bound together in one accord, would be left without any ability to defend their
marital relationship from the attacks of a third party interloper.' In Hoye, we struck the
Were we to decide this case differently, any married couple with children would be
subject to such a claim . Standing could not be limited only to those who possess DNA-test
results before filing . Further, it has been suggested that frivolous claims could be dealt with
through CR 11 sanctions. The interloper, in order to defend an allegation that the claim was
frivolous, would be allowed to present evidence of the extramarital affair and his basis for
making the claim. In short, we would be back to the very evidence we did away with when no-
fault divorce was adopted .
2
lance from the hands of the offended partner to the marriage . Shall we now, as the
dissent would have us do, divest the hapless of their shield as well?
Exactly what does the term "marriage" mean today in Kentucky? Incredibly, we
are offered little, if any, guidance when we turn to statutory law. KRS 402.005 defines it
as "the civil status, condition or relation of one (1) man and one (1) woman united in law
for life, for the discharge to each other and the community of the duties legally
incumbent upon those whose association is founded on the distinction of sex."
This statute, enacted in 1998, was the result of the legislature's desire to outlaw
marriage between members of the same sex. It was followed by a constitutional
amendment adopting that public policy. While meeting that public policy purpose, it is
otherwise totally without substance as far as defining marriage itself - except to say
what it is not. The statutory scheme set out in KRS Chapter 402 is of a similar vein . It
proclaims who may perform a valid marriage, and outlines the requirements for
licensing . But license to do what? To marry. But what is marriage? Alas, we have
come full circle once again and are left wanting for statutory light.
What constitutes "civil status" as mentioned in the statutory definition of marriage
under KRS 402.005? What is a "condition or relation"? What are the "duties legally
incumbent" upon the parties? More importantly, what does "united in law" mean?
Where is the law defining those privileges, protections, and rights afforded a couple
married under the statutory scheme set out in KRS Chapter 402? In short, this Court is
cast upon a vast sea bereft of any statutory mooring .
Yet the making of a marriage is governed by lawful requirements that have a
sealing affect upon this act of becoming "united in law." KRS 402.050 states who may
solemnize the marriage . The term "solemnize" is defined as "to enter into (a marriage,
3
contract, etc .) by a formal act, usually before witnesses." See BLACK'S LAW
DICTIONARY (8t" ed. 2004). The statute states that marriage may be solemnized by
the following : "ministers of the gospel or priests ; justices and judges of the Court of
Justice, county judges/executives, justices of the peace and fiscal court commissioners
as authorized by the Governor or county judge/executive ; and a religious society, if
either party belongs to the society." See KRS 402 .050 . Likewise, the statutory scheme
sets out licensing requirements that must be met. See KRS 402.080 to KRS 402 .110.
Clearly then, legal formalities are required before the Commonwealth affords a couple
the status of being "united in law."
Yet, there is not any statutory guidance as to what "united in law" post
ceremony means, nor is the definition of marriage expanded upon anywhere by
legislative directive . Thus, absent any meaningful statutory direction, it falls upon the
courts - in particular, this one - to determine what legal rights, protections, and
immunities this ancient legal rite includes . For over one hundred years, this Court
recognized that the marriage contract afforded either party redress from an interloper
who invaded and disrupted the affectionate bond between the parties . Then, in one
stroke of the pen, we abolished that right in Hoye. Here, we hold the line. We should
state boldly that an interloper cannot simply ignore the existence of the marriage
contract and assert a claim of fatherhood to a child born within the confines of the
marital relationship . I conclude that the family court had no jurisdiction to hear the claim
of a "stranger to the marriage" over the objection of the contracting pair.
The severely wounded institution of marriage in Kentucky surely protects the
parties from unwanted interlopers claiming parenthood of a child conceived and born
during their coverture . If not, then I am left to wonder if marriage has any legal meaning
at all . I believe that it does.
We all agree that the overriding concern in this case is the welfare of the child .
When considering the integrity of marriage, as we do here, we are not only dealing with
this particular child, but with all children born to married couples . Marriage is an
institutional umbrella under whose shade the protection, support, and nurturing of
children looms vital . This critical protection extends to the children born of the marriage,
if not of the bodies of the marriage .
In Hoye, part of the same reasoning for abolishing the tort of alienation of
affections also serves as a reason to deny an interloper standing to sue a married
couple for parental rights to a child born during the couple's marriage . Said Justice
Stephens, "Such suits invite abuse . . . . Not only is a defendant in these suits victim to
vindictive or purely mercenary motives of the plaintiff, but such suits are likely to expose
`minor children of the marriage to one of their parent's extramarital activities, and may
even require the children to testify to details of the family relationship in open court."'
824 S.W.2d at 427 .
Just as this Court held in Hove that it had the authority to abolish the cause of
action of alienation of affections absent statutory direction to the contrary, I submit that
in light of the absence of statutory guidance as to the rights and protections of a duly
married couple, this Court has full power to find compelling reasons to likewise protect
those critical elements of the marriage contract .
This is not the first time this Court has been called upon to flesh out the legal
parameters of marriage . In 1973, two women applied to the Jefferson County Court
Clerk's office for a marriage license. They were denied and their complaint ended up in
5
this state's highest court . See Jones v. Hallahan , 501 SW.2d 588 (Ky. 1973). At that
time, there was no statutory definition of marriage - not even the woefully ambiguous
one we have today. Commissioner Vance, speaking for a unanimous Court, stated that
Kentucky statutes did not include a definition of marriage, and therefore it had to be
defined according to "common usage ." 501 S .W.2d at 589 . In other words, marriage
was what this Court said it was. And this Court said that marriage had to be between a
man and a woman - twenty-five years before the legislature followed with codification of
that rule.
Nine years before Hallahan , and without a statutory definition of marriage, the
Court struck a significant blow for the protection of marriage in Board of Education of
Harrodsburg v. Bentley , 383 S .W. 2d 677 (Ky. 1964) . A sixteen-year-old student at
Harrodsburg High School married and was promptly booted from school. She had
violated a school board regulation requiring any student who married to withdraw from
school, subject to being readmitted after one year with permission of the principal and
under special conditions. This Court invalidated both the rule and the dismissal as
being an arbitrary infringement upon the marriage contract . 383 S.W.2d at 680-81 . In
essence, it barred the interloping school board from "punishing" the young citizen for
entering into a marriage covenant .
Also, it is clear to me that the purpose of the legislative scheme set out in KRS
Chapter 406 was a means to compel parents to take care of their children . Adjudication
of paternity is simply an essential prerequisite to the enforcement of that obligation . It
was never intended to be a separate proceeding for a putative father to pursue other
goals.
In his separate concurring opinion, Justice Scott ably points to the litany of cases
in other states which have held this view. Granted most, if not all, of those opinions are
rooted in much stronger statutory authority than we have here . But the dearth of
statutory treatment of the issue in this state only emphasizes the need for this Court to
step into the void and give meaning to "united in law." It is clear that in the absence of
statutory treatment of the matter, we are acting within our authority when we limit
standing to bring claims for paternity under the circumstances before this Court . The
United States Supreme Court has provided a strong salute to this proposition . In
Michael H . v. Gerald D. , 491 U.S. 110, 109 S .Ct. 2333, 105 L.Ed .2d 91 (1989), the
Supreme Court of the United States confronted a factual situation very similar to the one
we have before us. The nation's highest court stated that the California statute, which
created a "conclusive" presumption that a child born to a married woman living with her
husband is a child of the marriage, did not violate the substantive due process rights of
the biological father who sought to demonstrate paternity. More pertinent to the
question at hand, Justice Scalia noted that at the time of the opinion, four states had
barred standing to interlopers to the marriage by judicial decisions rather than by
statute. 491 U .S. at 126, 109 S .Ct. at 2343. Since that decision, in the absence of
statutes directly or indirectly granting or limiting standing to dispute the presumption of
legitimacy of children conceived or born during wedlock, some state courts have held
that various persons lack standing to dispute the presumption of legitimacy of the
children . Donald M . Zupanec, Annotation, Who May Dispute Presumption of Legitimacy
of Child Conceived or Born During Wedlock, 90 A. L. R. 3d 1032 (1979) .
There is certainly much logic in the excellent writing of the dissent of Justice
Abramson . But this very important case goes well beyond the interpretations and
7
nuances of existing writings of the legislature . By diverting our attention from what
rights and protections a married couple has in this state, we turn the focus away from
what, I believe, is the main issue . We are selling the pasture to buy the horse . The
dissent gives no heed to what is at the center of this controversy - that is, the marriage
contract to which the Appellants are parties, and all the rights, privileges, protections,
and immunities attached to this long-standing legal arrangement.
Furthermore, I respectfully and strenuously take issue with two points stated by
Justice Abramson . First, I reject the notion that a "marriage" ceased to exist when a
"third party entered the picture ." To hold to this view would wreak havoc on the stability
of what is considered to be the most endearing social contract of our civilization .
Furthermore, Justice Abramson's dissent suggests that, by our decision today, we are
turning our backs upon a "biological truth" and denying truth its rightful place in our
deliberations . I strongly disagree .
The truth is a child was born during a couple's marriage . The truth is a third party
claims parenthood of that child through an adulterous relationship with the child's
mother . The truth is the couple remains married and wishes to raise the child born
during their marriage - a child legally presumed to be the husband's under KRS
406 .011 - without the interference of the interloper. This presumption is not new or
unique to this case; it is applied equally to children born of marriages every day in the
Commonwealth . After all, we have not reached the point where we require DNA-
paternity testing on all children born in the Commonwealth . This is true because the
legislature has adopted a public policy in the law that presumes a child born during a
marriage is of that marriage. Further, this presumption is recognized as one of the
strongest known to law. See Bartlett v. Com . ex. rel . Calloway, 705 S.W.2d 470, 472
8
(Ky. 1986). Clearly then, the "truth" as to who the biological father may be - a most
personal and intimate matter - is neither our right nor our responsibility to proclaim in
these circumstances .
I recognize that to a large degree this writing seeks the ideal, and that the real
state of matrimony in Kentucky - a state whose divorce rate is higher than the national
average - falls way below the pedestal upon which I place it. But I also believe we are
better off as a people following those standards we hold aloft, rather than those which
we trample under foot. The facts of this case have presented a most difficult dilemma
for this Court . We are sharply divided on an emotionally charged question . It is vital to
recognize that all of these divergent views are being expressed from minds and hearts
with the best intentions. And 1, for one, recognize that there is no simple answer to what
we all hope is a unique situation . But how unique it is, or how common it may become,
depends much on what we say and do here today . As long as marriage is on the
books, it must mean something . And what it means should be proclaimed by this Court
in forceful terms, so that the people of Kentucky may circumscribe their behavior
accordingly . We are in need of a bold declaration that the marriage circle, even one
with an errant partner, will be invaded at one's own legal risk.
It has been my sad discovery as a judge that in many of life's baffling and painful
problems there are no sure solutions, only less disastrous choices . Therefore; it would
seem to me that if one accepts the inequities of our decision - which the dissent
predicts as real possibilities - they pale in comparison to the disastrous precedent we
will be setting if that viewpoint holds. It seems to me that the "broader community"
spoken of by Justice Abramson is best served in our society by holding fast and
strengthening the mooring lines of marriage . The institution of marriage, slowly eroding
9
from modern day notions of morality and personal freedoms, has for centuries been the
anchor of the family unit. It has been the rock in the shadow of which children are born,
shaded, protected, and nurtured . If children are born during the marriage, absent any
abuse or neglect, they should stay within that marriage for as long as both partners wish
to remain married, and for as long as the married couple wishes to nurture them . They
should stay within the shadow of the rock .
Therefore, I join Justice Scott in concurring with the majority in its result only.
RENDERED : APRIL 24, 2008
TO BE PUBLISHED
,;vuyrrmr (~vurf of '~rufurhV
2007-SC-000175-MR
J .N .R. AND J .S.R. APPELLANTS
ON REVIEW FROM COURT OF APPEALS
V CASE NUMBER 2006-CA-002497
JEFFERSON CIRCUIT COURT NO . 06-CI-503734
HONORABLE JOSEPH O'REILLY, JUDGE,
JEFFERSON FAMILY COURT; AND
J.G .R., REAL PARTY IN INTEREST APPELANTS
OPINION BY JUSTICE SCOTT
CONCURRING IN RESULT ONLY
I concur in result only for the reason that I believe J .G .R.'s status as a
"stranger to the marriage" is the fundamental reason for the legislative language
in KRS 406 .011 . Thus, I believe that only the "parties to the marriage" can
challenge the presumption of legitimacy under KRS 406 .011 . Indeed, the
presumption is one of the strongest known to law, Tackett v. Tackett, 508 S .W .2d
790, 792 (Ky. 1974), and thus, the presumption is theirs alone to challenge.
Although we have yet to address the question directly, many other courts
have. See Ex pane C.A.P. , 683 So. 2d 1010 (Ala . 1996) (petitioner lacked
standing to bring action to have himself declared child's father, where child was
conceived prior to, but born during mother's marriage to husband, thus making
husband the presumed father) ; Lisa I . v. Superior Court , 133 Cal . App. 4th 605,
34 Cal . Rptr. 3d 927 (2005) (alleged biological father of child born out of wedlock
lacked standing as presumed father under Family Code to pursue paternity
action against mother, where child was conceived during mother's marriage while
she was separated from her husband, child was born less than 300 days after
her divorce became final, and child was being raised by mother and her ex-
husband, who had welcomed child into his home and held child out as his own) ;
Tiierino v. Estrella , 843 So. 2d 984 (Fla. Dist. Ct. App. 2003) (holding that a
putative father does not have standing to seek to establish paternity of a child,
where the child was born into an intact marriage, and where the married woman
and her husband object to the paternity action); Callender v. Skiles , 591 N.W.2d
182 (Iowa 1999) (refusing to recognize any separate equitable parenting
principles which would give a person outside a marriage the right to establish
paternity) ; D.B.S. ex rel . P .S. v. M.S ., 20 Kan . App. 2d 438, 888 P.2d 875 (1995)
(where child is born into extended marital family, putative father's opportunity of
establishing relationship with child conflicts with similar opportunity of husband of
the marriage and it is not unconstitutional for state to give categorical preference
to the latter); In re Walter, 408 Mass . 584, 562 N.E .2d 474 (1990) (alleged
biological father is precluded from challenging presumption that husband is father
of child born to wife during marriage) ; B.H. v. K.D. , 506 N.W.2d 368 (N.D. 1993)
(man claiming to be father of child born during marriage of mother to another
man lacked standing to rebut presumption of child's legitimacy) ; David V.R. v.
Wanda J.D. , 907 P .2d 1025 (Okla . 1995) (putative father was barred from
disputing presumption of legitimacy of child he asserted was product of his extra-
marital affair with mother, where child was born during marriage of mother and
her husband, and child was being reared by mother and her husband as member
of their family) ; CW v. LV, 788 A.2d 1002 (Pa. Super. Ct. 2001) (third party
should not be allowed to attack the integrity of a functioning marital unit when
seeking to assert his own paternity as against the husband in an intact marriage) ;
In re M.R.M . , 807 S .W.2d 779 (Tex. App. 1991) (only husband or wife is entitled
to deny husband's paternity of child who is subject of suit and who is born or
conceived during marriage of parties); Pearson v. Pearson, 134 P .3d 173 (Utah
Ct. App. 2006) (putative father of child who was born during wife's marriage
lacked standing to challenge paternity of child) .
Moreover, there is no constitutional right of a "stranger to the marriage" to
assert paternity under such circumstances . See Michael H. v. Gerald D. , 491
U .S . 110, 109 S .Ct. 2333, 105 L.Ed .2d 91 (1989) . An intact family deserves no
less protection .
Cunningham, J ., joins this opinion .
RENDERED : APRIL 24, 2008
TO BE PUBLISHED
uyrrmr Courf of ~irufurkV
2007-SC-000175-MR
J .N .R. AND J .S.R. APPELLANTS
ON REVIEW FROM COURT OF APPEALS
V. CASE NUMBER 2006-CA-002497
JEFFERSON CIRCUIT COURT NO. 06-CI-503734
HONORABLE JOSEPH O'REILLY, JUDGE,
JEFFERSON FAMILY COURT; AND
J .G.R., REAL PARTY IN INTEREST APPELANTS
DISSENTING OPINION BY JUSTICE ABRAMSON
I respectfully and firmly dissent . J.G.R. is entitled under Kentucky law to pursue a
paternity action, as both the trial court and Court of Appeals properly concluded when
confronted with this difficult case . This Court errs grievously in holding otherwise .
The majority reasons that (1) Kentucky's Uniform Act on Paternity, KRS Chapter
406, applies only to children born out of wedlock (KRS 406 .180); (2) young J .A .R was
not born out of wedlock as defined in KRS 406.011 ; and, consequently, (3) J .G .R.
cannot pursue a paternity action even though DNA testing allegedly establishes his
biological connection and his conduct evinces a strong desire to truly be a father to the
child . In my view, the majority errs in finding that J .A.R. was not born out of wedlock,
misconstruing the phrase "where evidence shows that the marital relationship between
the husband and wife ceased ten (10) months prior to the birth of the child ." Properly
construed, KRS 406 .011 applies to situations such as the one now confronting us and
expressly allows for J .G .R.'s paternity petition . Admittedly, some jurisdictions (including
many of those cited to by Justice Scott in his concurring opinion) have laws that reflect
the legislature's apparent desire to preserve a currently intact family, however
previously fractured, at all costs, including ignoring the biological truth in matters of
paternity. Kentucky is not one of those states . Moreover, as explained below, laws
which allow for establishment of the biological truth as to the paternity of a child do far
more to advance society's interest in preserving families than those which lock the
courthouse doors to anyone but the mother and her husband .
KRS 406 .021 (1) allows paternity to be determined "upon the complaint of the
mother, putative father, child, person, or agency substantially contributing to the support
of the child ." The term "putative father" is not defined in KRS Chapter 406 but "putative"
is defined as "generally considered or deemed such ; reputed." WEBSTER'S NEW
COLLEGE DICTIONARY (1997). Is the father of a child generally considered to be the
man who provided half of the child's genetic makeup or the man married to the mother
who gave birth to the child? While I believe the former is more generally considered the
"father", reasonable minds could certainly differ on this issue. Regardless, it is apparent
that KRS 406 .021 (1) does not clearly rule in or rule out a petition by a man in J .G.R.'s
position .
KRS 406.180 does describe the general applicability of KRS Chapter 406 as
follows:
This chapter applies to all cases of birth out of wedlock :
(1) Where birth occurs within this state ;
(2) When birth occurs out of this state at the time the
As the majority notes, BLACK'S LAW DICTIONARY defines "putative father" as
"[t]he alleged biological father of a child born out of wedlock." Under this definition,
J.G .R. is a putative father.
mother is a resident of this state after June 18, 1964; or
(3) When birth occurs out of this state and at some time
following the birth the mother becomes a resident of this
state after June 18, 1964.
KRS 406.011 provides the only description of a birth "out of wedlock" :
The father of a child which is or may be born out of
wedlock is liable to the same extent as the father of a child
born in wedlock, whether or not the child is born alive, for
the reasonable expense of the mother's pregnancy and
confinement and for the education, necessary support and
funeral expenses of the child . A child born during lawful
wedlock, or within ten (10) months thereafter, is presumed
to be the child of the husband and wife . However, a child
born out of wedlock includes a child born to a married
woman by a man other than her husband where evidence
shows that the marital relationship between the husband
and wife ceased ten (10) months prior to the birth of the
child. (Emphasis supplied) .
After citing these two provisions, the majority notes that Kentucky did not simply
adopt section 1 of the Uniform Act on Paternity (1960) which states that: "a child born
out of wedlock includes a : child born to a married woman by a man other than her
husband ." In fact, Kentucky adopted that precise language and then added the phrase
emphasized above. The majority believes that by doing so the Kentucky General
Assembly chose a "distinctively" different definition for birth out of wedlock, i.e., if the
married couple had "marital relations" within ten months prior to the birth of a child, that
child is not born out of wedlock but is a child of the marriage . Under this interpretation,
a wife could have one sexual encounter with her husband in the ten months preceding
her child's birth and have multiple sexual encounters with another man (or men) but the
child would still be born in wedlock to the mother and the man named on her marriage
certificate . This is not what our legislature intended .
KRS 406.011 does not speak to "marital relations", a polite reference to the
sexual aspect of marriage, but rather to the "marital relationship", that broader, more
meaningful aspect of married life that clergy and judges speak of when joining two lives
as one. A marital relationship has emotional, physical, social and, yes, moral
dimensions and is characterized by a monogamous bond between the two parties to
the relationship. The "marital relationship between the husband and wife" referenced in
KRS 406 .011 can certainly be said to "cease" when the wife is having sexual
intercourse with another man. The "marriage" may still exist as a matter of law and
"marital relations" (i.e., sexual intercourse) may still occur between the husband and
wife on occasion, or even with regularity, but the monogamous "marital relationship" on
which our society is based "ceased" when that third party entered the picture . If we
focus on the words actually used by the Kentucky General Assembly, "marital
relationship", as opposed to substituting "marital relations" (and therefore sexual
intercourse) as the operative concern, then it is apparent that a child born under the
circumstances of this case is indeed born out of wedlock. This interpretation has the
added advantage of comporting with common sense because few people would
question that a child born to a married woman and a lover who is not her husband is
indeed born out of wedlock .
If our General Assembly intended this interpretation, some might question why
they bothered to add the phrase "where evidence shows that the marital relationship
between the husband and wife ceased ten (10) months prior to the birth of the child ."
Why did they not simply adopt the UPA's standard definition -- "a child born out of
wedlock includes a child born to a married woman by a man other than her husband"?
If the General Assembly had done so, any man claiming to be the father of a child could
bring a petition and set in motion paternity testing and proceedings with little more than
a bare allegation . The language added by our legislature requires a preliminary showing
of evidence that the marital relationship "ceased" in the relevant timeframe . In other
words, the putative father must have some evidence to proffer that shows he is not
merely on a fishing expedition or out to create havoc in a marriage . The evidence
which would show a cessation of the marital relationship must inevitably be assessed
on a case-by-case basis but it would undoubtedly encompass a situation where the
putative father has had access to the child through cooperation by the mother and has
secured DNA testing that establishes his biological fatherhood. There is no more telling
proof that "the marital relationship between the husband and wife ceased ten (10)
months prior to the birth of the child ."
For those who believe that KRS 406.011 is just as readily susceptible to the
interpretation advanced in the majority opinion and who believe that particular
interpretation does more to advance the Commonwealth's interest in the integrity of the
family, three points should be considered . First, how is the family strengthened when a
mother can conceive a child outside of marriage and be assured that she alone knows
the child's biological origins and can control their discovery? She can harbor this secret
until divorce, revealing the truth at that juncture if it serves her purposes . See, e.g.
Boone v. Ballinger, 228 S .W.3d 1 (Ky. App. 2007). With this interpretation, there are no
societal disincentives to conceiving a child outside the bounds of her marriage .
Construing "marital relationship" as the more encompassing monogamous relationship,
on the other hand, leaves no doubt that if she engages in an extramarital affair, the
man will have a legal right to claim a place in the child's life . Second, for those who
think it places the child in an untenable position vis-a-vis his or her in-home father and
perhaps other siblings, there are tens of thousands of blended families all across
Kentucky who deal with those types of issues daily. Many marriages include children
who are "yours and mine" or "yours, mine and ours" and those families cope with
weekend and summer visitation, shared holidays and other aspects of blended families.
In situations such as the one in this case, the only variable is that the child or children
who have a parent outside the home are the younger as opposed to the older children
in the family residence. Third, knowing the truth about one's genetic background has
both medical and psychological consequences . Is it appropriate to leave a child without
such genetic knowledge that could be crucial in the course of his or her life in medical
situations? As for the psychological component, it is commonplace that adoptive
parents are encouraged to share with their children the fact of their adoption at an
appropriate time . Why should children like J.A .R. not have a similar right to know? In
short, hiding the truth does not support the integrity of the family or advance the best
interests of the child.
Justice Scott's concurring opinion cites cases from several jurisdictions that
similarly leave the biological father without recourse where the mother is married to
another man . Each of these cases is decided as a matter of that individual state's law
and none is binding on this Court. The United States Supreme Court has held that
states may properly adopt presumptions and limit paternity actions as a matter of state
law. Specifically, in Michael H. v. Gerald D. , 491 U.S . 110, 109 S. Ct. 2333, 105 L. Ed.
2d 91 (1991), the Supreme Court held that a biological father's procedural and
substantive due process rights were not violated by a California statute creating a
conclusive presumption that a child born during a marriage was a child of the marriage .
Only the husband or wife could challenge the presumption and, even then, only if the
challenge was raised within two years of the child's birth . In this context, the Supreme
Court stated :
Where . . . the child is born into an extant marital family,
the natural father's unique opportunity (to develop a
relationship with his offspring) conflicts with the similarly
unique opportunity of the husband of the marriage ; and
it is not unconstitutional for the State to give categorical
preference to the latter.
/d. at 129, 109 S. Ct. at 2333.
Thus, states can and do give clear "categorical preference" to the rights of the
husband of the marriage . For example, in David V.R. v. Wanda J .D., 907 P.2d 1025
(Oki.1995), the Oklahoma statutory scheme provided that "all children born during
wedlock are legitimate" and the presumption was irrebuttable except by the husband or
wife or the descendant of one or both of them . In other states, there are several ways a
man can be a "presumed father' and once a child has a presumed father under the
statute, the issue of his or her paternity cannot be raised except by the mother, the
presumed father, the child or an agency of the state if the child is receiving public
assistance . See, e.g., Ex pane C.A.P., W.H .P and A.C.P., 683 So . 2d 1010 (Ala .
1996).
Kentucky has not expressed a "categorical preference" for the interest of the
husband to the marriage . Unlike states with presumptions that expressly state that only
the husband or wife can challenge the "born during the marriage and therefore child of
the marriage" presumption, KRS 406 .011 does not preclude a challenge by parties
outside the marriage . Indeed, such challenges have been allowed as evidenced by
Montgomery v. McCracken, 802 S.W.2d 943 (1990), discussed in the majority opinion
and Bartlett v. Commonwealth , 705 S.W.2d 470 (Ky.1986) . In the latter case, a child
born in May, 1975 was deemed not to be the child of his mother's marriage even
though she was married at the time of the birth. There was conflicting testimony about
whether she and her husband were separated or in any type of marital relationship at
the time the child was conceived but HLA testing established that another man was the
father. The case was apparently brought by the Commonwealth to determine the
child's real father .
The mother's testimony, if believed, was sufficient to
establish "that the marital relationship between the
husband and wife ceased ten (10) months prior to the birth
of the child ." KRS 406 .011 , supra. We need not decide
whether the HLA testing standing alone would be sufficient
to overcome the presumption of legitimacy and establish
the appellant's paternity. Certainly, the HLA testing when
corroborated by the evidence of access, the contribution
toward support, and a similar genetic characteristic, is so
overwhelming as to constitute proof beyond a reasonable
doubt.
By this opinion we acknowledge the importance of HLA
blood testing in supplying evidence as necessary to
overcome the presumption of legitimacy and the
requirement of proof beyond a reasonable doubt. Truth and
justice are irrevocably bound. They are Siamese twins
sharing a single heart beat . Neither can survive very long
without the other. When the advances of science serve to
assist in the discovery of the truth, the law must
accommodate them . The law cannot pick and choose
when truth will prevail.
Id. at 472-73 .
In Mont_ omery it appears the Commonwealth was again the moving party but it
is also clear that the Court of Appeals concluded that a child could be deemed born out
of wedlock even where the parties to the marriage had maintained "marital relations" if
there was clear evidence the husband was not the child's father .
Contrary to appellant's assertions, we are not persuaded
that this provision indicates that a child born to a married
woman can be found to have been born out of wedlock only
if the spouses' marital relationship ended at least ten months
prior to the child's birth. Here, although the spouses' marital
8
relationship did not fall into the category of having ceased
ten months prior to the child's birth, it is uncontroverted that
the husband was found in an earlier circuit court proceeding
to not be the child's father. That finding is not before us on
appeal. That being so, the trial court certainly did not err by
concluding that the presumption of legitimacy had been
overcome by evidence "so clear, distinct and convincing as
to remove the question from the realm of reasonable doubt."
See Simmons v. Simmons, Ky., 479 S .W .2d 585, 587
(1972).
802 S.W.2d at 944 (emphasis in original) . The majority, in my view, errs in overruling
cases such as Montgomery which allow rebuttal of the presumption .
Finally and notably, many states have dealt with parentage in cases such as this
one by adopting the Uniform Parentage Act. The 2000 version of the Uniform
Parentage Act would allow standing to a man in J .G .R.'s position provided he sought
adjudication of parentage not later than two years after the child's birth. See, § 607
Uniform Parentage Act (2000). The commentary to § 607 reflects the variance among
states in dealing with the issue as of 2000 and the middle ground adopted in the
Uniform Parentage Act:
As of the year 2000, the right of an "outsider" to claim
paternity of a child born to a married woman varies
considerably among the States. Thirty-three States
allow a man alleging himself to be the father of a child
with a presumed father to rebut the marital presumption.
Some States have granted this right through legislation,
while in other States case law has recognized the alleged
father's right to rebut the presumption and establish his
paternity. In some States, there is both statutory and
common law support for the standing of a man alleging
himself to be the father to assert his paternity of a child
born to a married woman. Finally, some States, such
as California, absolutely bar a man from commencing a
proceeding to establish his paternity if state law provides
a statutory presumption of the paternity of another man,
see West's Ann . Cal. Evid. Code § 621, upheld in Michael
H . and Victoria D. v. Gerald D . , 491 U.S . 110, 105 L. Ed . 2d
91, 109 S. Ct. 2333 (1989).
UPA (2000) attempts to establish a middle ground on these
exceedingly complex issues . Subsection (a) establishes
a two-year limitation for rebutting the presumption of
paternity established under Section 204 if the mother and
presumed father were cohabiting at the time of conception .
The presumption of paternity may be attacked by the mother,
the presumed father, or a third-party male during this limited
period ; thereafter, the presumption is immune from attack
by any of those individuals .
9B Uniform Laws Annotated . § 607 Uniform Parentage Act (2000) at p . 342.
Certainly Kentucky's stance on this issue would be clearer and the issue of paternity
would be fairly and finally adjudicated in a timely manner if the General Assembly
simply adopted the 2000 version of the Uniform Parentage Act. Nonetheless, even
without this model legislation, Kentucky law allows a paternity action to be filed by
J .G .R. under the circumstances of this case .
In short, our world is full of inconvenient truths. We accomplish nothing for
families, the broader community and our justice system when we deny those truths,
especially when Kentucky law does not require that result. J .G.R. should be allowed to
pursue a paternity action because J .A.R. was born out of wedlock, in both the common
understanding of that term and as provided in KRS 406.011 . The family court had
jurisdiction and the Kentucky Court of Appeals was correct in denying the writ of
prohibition .
Schroder, J ., joins .
RENDERED: APRIL 24, 2008
TO BE PUBLISHED
,*uyrrme (~vurf of '~KrufurhV
2007-SC-000175-MR
J .N.R. AND J .S.R. APPELLANTS
ON REVIEW FROM COURT OF APPEALS
V. CASE NUMBER 2006-CA-002497
JEFFERSON CIRCUIT COURT NO . 06-CI-503734
HONORABLE JOSEPH O'REILLY,
JUDGE, JEFFERSON FAMILY COURT;
AND J .G.R., REAL PARTY IN INTEREST APPELANTS
DISSENTING OPINION BY JUSTICE NOBLE
Respectfully, I dissent.
The parties to this writ petition and the majority of this Court have confused a
statutory element of proof as a requirement for standing . In the paternity chapter,
standing must be determined pursuant to KRS 406.021 . If a party has standing, then
and only then, does the presumption statute, KRS 406.011, have relevance as setting
forth certain elements of proof that must be established to rebut the presumption that a
child born during a marriage is the child of the husband. Specifically, the one making
the claim of paternity who is not a husband must establish that the child is born out of
wedlock . One does not have to prove an element in order to have the right to plead it .
The right to make a claim is a great deal broader than what one must prove to establish
that claim.
Standing requires a personal interest, often referred to as a "substantial" interest
in the subject matter of the suit, not a "mere expectancy ." For this reason, substantiality
of an interest must be determined by its direct relationship to the claimant . Ashland v.
Ashland F .O.P. # 3, 888 S.W.2d 667, 668 (Ky. 1994) . "Standing to sue" means that a
party has "a sufficient stake in an otherwise justiciable controversy to obtain judicial
resolution of that controversy. . . . .. Sierra Club v. Morton, 405 U .S . 727, 731, 92 S . Ct.
1361, 1364, 31 L. Ed. 2d 636 (1972). "Standing is a concept utilized to determine if a
party is sufficiently affected so as to insure that a justiciable controversy is presented to
the court ; it is the right to take the initial step that frames legal issues for ultimate
adjudication by judge or jury." Black's Law Dictionary 1405 (6th ed. 1990). Further,
standing must be viewed as the power to hear and decide cases, and "does not concern
the ultimate merits of substantive claims involved in the action ." Weiner v. Bank of King
of Prussia , 358 F. Supp. 684 (E .D. Pa . 1973 ); see also Flast v. Cohen , 392 U .S . 83, 99-
100, 88 S .Ct. 1942, 1952 (1968) (The fundamental aspect of standing is that it focuses
on the party seeking to get his complaint before a . . . court and not on the issues he
wishes to have adjudicated . . . . In other words, when standing is placed in issue in a
case, the question is whether the person whose standing is challenged is a proper party
to request an adjudication of a particular issue and not whether the issue itself is
justiciable .") . A plaintiff must have "alleged such a personal stake in the outcome to
ensure concrete adverseness." Black's Law Dictionary 1405 (6th ed . 1990) .
In Kraus v. Kentucky State Senate, 872 S.W.2d 433, 439 (Ky. 1993), this Court
opined, "We believe that standing to sue means that a party has a sufficient legal
interest in an otherwise justiciable controversy to obtain some judicial decision in the
controversy . As noted by the Court of Appeals, it is the right to take the initial step that
frames legal issues for ultimate adjudication ." Likewise, in Stevens v. Stevens, 798
S.W.2d 136, 139 (Ky. 1990), we stated, "The requirement of standing is satisfied if it can
be said that the plaintiff has a real and substantial interest in the subject matter of the
litigation ."
Beyond doubt, JGR has shown that in the Family Court case . He alleged that he
was the father of the child and claimed that a genetic test proved this . This is a
personal claim about his fatherhood showing a substantial interest in the controversy .
He also cited KRS 406.051 as conferring jurisdiction, which specifically references
children "born out of wedlock ." "It is axiomatic that in such circumstances, every well-
pleaded allegation of the complaint must be taken as true and construed in the light
most favorable to the party against whom the motion is made." Gall v. Scrogqy , 725
S .W.2d 867 (Ky .App. 1987). As Chief Justice Lambert wrote previously in City of
Louisville v. Stock Yards Bank & Trust Co., 843 S .W .2d 327 (Ky. 1992),
[I]t is neither the province of the trial court nor of this Court to consider
whether Appellant may be able to prove its allegations or ultimately
prevail. 'On review, this Court will confine itself to a determination of
whether the matters alleged in the complaint establish appellant's standing
to bring the action or whether it is without a "substantial interest" in the
subject matter of the controversy .
Id . at 328 (citations omitted) .
Because feelings about the issue of paternity and marriage run strong among the
members of the Court, we have jumped over the hurdle of proper pleading and
procedure to the evidentiary merits of this case when we have no business doing so .
We, as an appellate court, even on writ procedures appealed from the Court of Appeals,
are not finders of fact.
JGR filed the petition in this case under various statutory provisions, including
KRS 403.150, the divorce statute, and the child custody statutes he references, KRS
403.400 and KRS 403.620 (the UCCJA), which have been repealed and replaced by
the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) . However, he
3
also alleged paternity court jurisdiction over this case by citing KRS 406 .051, which
specifically refers to "children born out of wedlock" and which incorporates the entire
paternity chapter. He further specifically alleged, "Paternity has not yet been
established, however, DNA test results confirm the paternity of the Petitioner."
The Motion to Dismiss which is the basis for this writ petition is framed around
the issue of whether JGR has standing to bring this action . The Memorandum in
Support states two standing issues : that JGR has no standing to seek custody and
support ; and that he has no standing to seek a determination of paternity. It should be
noted, however, that this petition was filed in a Family Court jurisdiction . The guiding
concept of Family Court is "One judge, one family." Both custody and paternity are
included in Family Court subject matter jurisdiction. Consequently, all issues to be
heard may be filed in one petition, as JGR did here.
As to JCR's custody and support claims, they clearly are premature . At the point
of pleading, there was no legal determination that he is the father of the child, which is
required as he was not married to the mother when the child was born . On the other
hand, his right to proceed under the paternity statutes is ripe . If JGR were found to be
the father under the paternity statutes, the Family Court could address the custody and
support claims seriatum . In the Family Court jurisdictions, there is nothing inappropriate
about pleading all possible claims in one petition . Indeed, it may be necessary to avoid
res judicata .
This is but one example of evolving legal questions that arise when a new type of
court is instituted . At present in Kentucky, Circuit Courts hear custody and support
actions, District Courts hear paternity and dependency/neglect actions, and Family
Courts hear all these areas. The paternity statutes allow District Courts to determine
custody and support in a paternity case. Of necessity, a petition in Family Court must
cover all possible claims, though the various claims may be decided in the order
required by law, which would clearly help avoid piecemeal litigation in Family Court
jurisdictions. JGR's petition may be understood more clearly in this light.
Since standing is determined solely from the allegations of the petition, with all
factual assertions taken as true and construed in the light most favorable to the party
against whom a motion to dismiss is made, the only relevant question is whether JGR
has alleged matters in the complaint sufficient to establish his standing in paternity,
since his standing as to custody and support cannot ripen unless he is the legal father
of the child . Whether he could prevail is not the question before us, and would indeed
be impermissible fact-finding .
"In regard to pleadings, Kentucky has always followed the notice pleading theory
which only requires a short and plain statement of claim demonstrating that relief is
warranted and necessary ." Equitania Ins. Co. v. Slone & Garrett, P.S .C. , 191 S .W .3d
552, 556 (Ky. 2006). In scrutinizing whether a pleading yields standing, "We no longer
approach pleadings searching for a flaw, a technicality upon which to strike down a
claim or defense, as was formerly the case at common law. Whereas the old common
law demur searched the pleadings for a reason to dismiss, now a Motion to Dismiss is
directed at the substance of the pleading ." Smith v. Isaacs , 777 S .W.2d 915, 915 (Ky.
1989) (citations omitted) . In McCollum v. Garrett, 880 S .W .2d 530 (Ky. 1994), this
Court affirmed that the sufficiency of the pleadings should be resolved by a
commonsense reading so as to do substantial justice . To that end, all that is necessary
is that a pleading sufficiently identify the basis of the claim. Natural Resources and
Environmental Protection Cabinet v. Williams, 768 S.W.2d 47, 51 (Ky. 1989).
Without addressing the fact that the pleadings alone must be considered to
determine standing, JNR jumps straight to the evidentiary merits of the claim, as has the
majority . In the paternity chapter, standing must be determined pursuant to KRS
406.021, which defines who may bring a paternity action and lists a "putative father." Cf.
Moore v. Asente , 110 S .W .3d 336, 355-56 (Ky. 2003) (determining standing by
reference to the statute announcing who may bring a custody action). "Putative father'
is not defined in the statutes, but is defined in Black's Law Dictionary 1237 (6th ed .
1990) as "[t]he alleged or reputed father of a child born out of wedlock." JGR has
alleged that he is the father of a child born out of wedlock in his jurisdictional claim, and
specifically asserts his personal, substantial interest in the case. He thus has standing .
If a party has standing, then and only then, does KRS 406.011 require certain
elements of proof that must be established to rebut the presumption that a child born
during the marriage is the child of the husband . Obviously, the right to make a claim is
a great deal broader than what one must prove to establish the claim. One does not
have to prove an element of a claim to have the right to plead it. Discovery and
subsequent motions can address the evidentiary sufficiency of the claim . Doing
anything else is to "use standing to slam the courthouse door against plaintiffs who are
entitled to full consideration of their claims on the merits ." Association of Data
Processing Service Organizations, Inc . v. Camp , 397 U.S . 159, 90 S . Ct 838, 25
L.Ed .2d 192 (1970) (Brennan, J., Concurring in part and dissenting in part).
In saying that JGR must specifically plead that the child in question is a child
"born out of wedlock," the majority is mistaken, because he clearly gave adequate
notice of such by citing KRS 406.051 . In saying that he lacks standing because he did
not specifically plead that the marital relationship between the wife and husband ceased
ten months before the child's birth, the majority is requiring him to meet a standard of
proof before he will be allowed to proceed. In saying that there is no evidence that the
marital relationship ended ten months before the child's birth, this Court goes too far
into the realm of advisory opinions . The stance of this case at the time the writ petition
was filed is that no evidence of any kind had been admitted . The attachments to the
writ pleadings and other supplements all go to evidentiary matters that are the province
of the trial court, not an appellate court. Obviously, even if this Court takes the view that
the pleadings are inadequate to establish standing, there is no evidence to consider and
we should not be giving advisory opinions as to whether JGR could rebut the
presumption.
I do not subscribe to the majority view that JGR's pleading is so inadequate that
it fails to identify the basis of his claim, and would find that he has standing to bring his
paternity claim. Clearly, JNR understood that JGR was seeking a paternity
determination as the court motions and this writ proceeding demonstrate . While it may
be true that in order to be adjudicated the father of the child, he must prove either that
marital relations between the wife and husband ceased ten months prior to the birth of
the child or provide other sufficient proof as was allowed in Montgomery v. McCracken,
802 S.W.2d 943 (Ky.App. 1991), where a putative father was nonetheless declared the
father of a child even though the mother married another man seven months before the
child's birth; and in Bartlett v. Com. ex rel . Calloway, 705 S .W .2d 470 (Ky. 1986), where
the child was born during the marriage, but evidence of HLA testing, a similar genetic
characteristic, providing support and other testimony was found sufficient to say that the
putative father was the father, that is not relevant at this point in the proceedings . We
do not know what that proof would be. These cases state the status of the law as to
access as it has been in Kentucky for over twenty years, and reflect as Justice Leibson
wrote,
Truth and justice are irrevocably bound . They are Siamese twins sharing
a single heartbeat . Neither can survive very long without the other. When
the advances of science serve to assist in the discovery of the truth, the
law must accommodate them. The law can not pick and choose when
truth will prevail .
Id . at 473 . There is no need to reverse these common sense cases. Doing so is an
affront to stare decisis, and is being done because the majority is addressing the
propriety of proof rather than whether JGR has the right to offer it.
Certainly, we do not know what JGR might be able to produce as evidence . It is
conceivable that the mother might confirm that marital relations had in fact ceased ten
months prior to the birth of the child when called to the stand, despite what may have
been said earlier or what is being said now. Other proof is apparently available,
specifically DNA testing . JGR clearly has a due process right to at least be heard,
because he has standing . We must not advise as to whether he could succeed .
Consequently, this case should be remanded to the trial court to allow JGR to
proceed with the paternity action so that it may determine the sufficiency of his proof.