Is Bio-Dad a Legal Stranger to Child Born During a Marriage?

An interesting and sad husband/putative father custody case is pending in Jefferson Circuit Court, Family Division and in the Kentucky Court of Appeals.
Putative father (G.J.R.) claims DNA shows that he is the bio-dad. He sued in Jefferson Circuit Court, Family Division 7, for custody and visitation rights. Husband and his wife, who is the mother of the child (J.N.R. and J.S.R.), are raising this child born during their marriage. They moved to dismiss, because of the presumption of paternity afforded the husband and claimed that the bio-dad was a legal stranger to the child. When the trial court denied the Motion to Dismiss and ordered mediation, husband and wife filed a Petition for Writ of Prohibition in the Court of Appeals and a Motion for an Immediate Order Staying the Proceedings below. The Court of Appeals has not yet ruled on the Petition for Writ of Prohibition. The Order Granting Emergency Immediate Relief is here: Download 12722.pdf

Comment by A. Hart: Many factors should be considered to answer this question: 1) Has the biological father had contact with the child? If so, how often? 2) Has the father provided financial support? 3) How did the father obtain DNA proof? 4) Does the father have other evidence? 5) On what basis did the Family Court dismiss the husband/wife's petition to dismiss?
Surely, the Family Court did not believe the father was a legal stranger because they dismissed the petition to dismiss. So why did the appellate court stay the case?

UPDATE: The Court of Appeals denied the writ and remanded to the trial court for further proceedings.This is not an adjudication on the merits; the case will have to be decided by the trial court and a regular appeal had.

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Comments

[Jeanne M Hannah]

Clearly, this case boils down to the fact that the biological father, under Kentucky law, does not have standing to sue for paternity under Kentucky law. Thus he is, in fact, a “legal stranger to the child.” Kentucky’s Paternity Act provides as follows:

KRS 406.011 Obligations of father -- Presumption of paternity. * * * 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.

Under Michigan law and the law of States that like Michigan and Kentucky have not yet adopted the Uniform Parentage Act, this case would not have been decided differently.

See for further details my article Barnes v Jeudevine: How to Deprive a Child of a Father http://jeannehannah.typepad.com/blog_jeanne_hannah_traver/2006/07/barnes_v_jeudev.html#more

In Barnes, the child was born 4 months after the entry of a judgment of divorce stating that there were no children of the marriage and that none were expect. The mother and the biological father signed an affidavit of parentage in which they swore under oath that the mother was unmarried from conception to birth. When the relationship soured, the mother enlisted the aid of her ex-husband and she successfully fought the establishment of parentage by the biological father. The court ruled that the biological father had no standing to pursue establishment of paternity because the mother was married during conception. The false affidavit of parentage was not given any weight to favor the biological father.

Even after Barnes, Michigan courts were called upon to address the lack of standing issue. See my blog article Paternage Issues: Here We Go Again! http://jeannehannah.typepad.com/blog_jeanne_hannah_traver/2006/11/parentage_issue.html

Until States enact the Uniform Parentage Act which would give a biological father the same “presumed father” status as that enjoyed by a man married to the mother from conception until birth, biological fathers are going to get short shrift in the courts.

[Erik L. Smith]

I suspect the Appellate Court stayed the partial order because it wants to decide the original issue of whether the father has a right to his claim under Kentucky law, and perhaps the Constitution, before anything else is done. Thus, the immediate question is whether Kentucky recognizes the father's claimed right and, if not, how much weight the father's constitutional right to pursue a relationship with his child has compared to the right of the petitioners to security in marriage.

Erik L. Smith

[Nikky Stein]

KRS406 gives the natural father standing to petition the court as a putative father. This affords the father an opportunity to rebut the presumption of paternity with clear and convincing evidence, e.g. with DNA. This has been shown again and again in Kentucky cases.

With that being said, Hart raises some interesting questions, and the answers may be devastating for the mother and husband. However, the first question should be the child's age. But I'm also interested in how the father got the DNA test? This immediately tells me the father had contact with both the mother and child after the birth. Of course the DNA could of been collected during an amniocentesis test, but this is a very unpopular procedure for collecting DNA. In addition, it would of put a spotlight on the mother.

Assuming there's been contact between the father and child complicates the argument that the father is a legal stranger. For someone must of agreed and allowed this contact. Not to mention, if the mother gave the father permission to conduct the testing, then proving the father is a legal stranger becomes significantly more difficult. In a sense, it demonstrates the mother is rebutting the presumption of paternity herself. It further demonstrates she didn't know who was her child's father.

Of course the mother knows the husband is not the father, for if he was the father they would prove it with DNA. And the case would be over. It's really surprising the Appellate Court put a stay on the case, for if there's already been father/child contact what is the irreparable damage?

[A. Hart]

Many factors should be considered to answer this question: 1) Has the biological father had contact with the child? If so, how often? 2) Has the father provided financial support? 3) How did the father obtain DNA proof? 4) Does the father have other evidence? 5) On what basis did the Family Court dismiss the husband/wife's petition to dismiss?

Surely, the Family Court did not believe the father was a legal stranger because they dismissed the petition to dismiss. So why did the appellate court stay the case?