Paternity Pandemonium

A recent Kentucky Supreme Court (SCOKY) case has created quite a stir in the webdom. In J.N.R. & J.S.R. v O’Reilly, 2007-SC-000175-MR (April 24, 2008)(to be published), SCOKY rebuked a man’s attempt to establish that he was the biological father of a child born in the marriage of the appellants. Apparently everyone is this case has a first name starting with J and a last name beginning with R, so this might get a little confusing. Here is the scorecard: JGR is the man trying to establish that he is the biological father and obtain a custody status, JAR is the child in the center of the contest, JNR is the mother/wife, and JSR is the legal father/husband.

JNR and JSR are married when JAR is born giving rise to the presumption that JSR is the father of JAR. JGR apparently engaged JNR in an extra-marital affair and believed he was the biological father of JAR. JGR apparently had DNA evidence that proved him to be the bio-dad and he had even had some visits with JAR. Despite the injury to the marriage, there was apparently some mighty powerful affection remaining and so JNR and JSR wanted to make a go of it and did not want JGR interfering. JGR, displaying persistence that would be admirable in other circumstances, filed a petition in Jefferson Family Court to establish paternity, custody and support. The family court allowed the action to proceed and also ordered some time-sharing. JNR and JSR filed a Writ of Prohibition with the Kentucky Court of Appeals (COA) and then with SCOKY when the COA failed to issue the writ.

A Writ of Prohibition is an action that can be taken when a lower court is about to do something that they really have no business doing (lack the legal authority to do) OR will cause irreparable harm to one or more of the parties if they are allowed to do it anyway. In this case, if JGR was allowed to establish a psychological bond with baby JAR, who was 3 months old, then there would be no way to undo it without additional harm to JAR. If JGR was allowed to establish paternity, then arguably, irreparable damage would be done to the marriage. The COA refused to issue the writ to stop the paternity proceeding because JNR and JSR failed to show irreparable harm to the marriage, but they did stop the visits. JNR and JSR then took their Writ to SCOKY who granted it and stopped everything.

JNR and JSR had a pretty smart lawyer who argued that the Family Court was acting OUTSIDE its authority and thus no irreparable harm showing was necessary. The reason that SCOKY gave for issuing the Writ of Prohibition on the paternity action was that the Family Court lacked subject matter jurisdiction to hear the case. In other words, SCOKY agreed that the Family Court was acting outside its authority. This is significant because the decision, arguably, stands on statute alone and not on potentially shifting public policy. So, the Kentucky legislature would have to pass new legislation granting family courts jurisdiction in such a situation (unless a challenge to the existing statutes’ constitutionality is brought and won which is doubtful). The decision also suggests that even if the mother had initiated the action, the legal father/husband (or vice versa) could stop the matter from ever being heard unless they could establish that the marital relationship had ended (at least show no sex) ten months prior.

The case itself provides a more in-depth analysis of the statutes in play, but for our purposes, the whole thing turns on the use of the phrase “born out of wedlock” in the jurisdictional statute KRS 406.051. A child born to a married woman can be “born out of wedlock”, but only with a showing that the marital relationship ceased to exist ten (10) months prior to birth of the child. JGR failed to make a showing that JAR was born out of wedlock. Kentucky’s KRS 406.051 does differ from the 1960 Uniform Act on Paternity by narrowing the definition. This evidences the public policy espoused by the General Assembly for the protection of the marriage over those of the contributor of chromosomes. This public policy has shown signs of shifting in recent years coinciding with the more accurate DNA testing as compared to simple blood typing from decades ago.

SCOKY also rejected the argument that subject matter jurisdiction could arise fromt he KRS 403 chapter governing the dissolution of marriage and child custody. The bottom line is that producing a child with a married woman gives a poor prognosis for establishing paternity and is an inadvisable course of action in any circumstance.