Divorce Law Journal

Published Family Law Opinion from Ky Court of Appeals Today, Equitable Estoppel Precludes Vacating Paternity Judgment

K.W. V. J.S.

In Family Court, father made a CR 60.02 motion more than three years after entry of a paternity judgment, arguing the biological mother made material misrepresentations to him to induce him to agree to a paternity judgment. The Family Court denied the CR 60.02 motion and discontinued child support.

The Appellate Court affirmed the Family Court’s denial of father’s CR 60.02 motion. Father was equitably estopped from setting aside the paternity judgment, as the he allowed the children (twins) to call him “daddy,” maintained a relationship with the children, waited over three years to make a CR 60.02 motion, and evidence at trial demonstrated he knew he was not the biological father at the time he agreed to paternity, but did so for tax benefits. The Appellate Court reversed the Family Court discontinuation of child support, holding as the legal father he is required by statute to pay support. The fact that he is not the biological father of the children is not cause for deviation from the child support guidelines.  

Digested by Elizabeth M. Howell

Contempt Affirmed for Failure to Submit to Genetic Testing to Determine Paternity, J.K. v. N.J.A., el al, Ky Court of Appeals

J.K. v. N.J.A.; Honorable Linda Bramlage, Boone County Family Court Judge; and Honorable Bailey Taylor, 2012-CA-000897-ME

Published: Affirming

County: Boone

ISSUE: Whether a man, with whom Mother admits having an affair and living with for about fifteen months-until mere days before Child’s birth-is entitled to know whether Child is his biological son.

FACTS:

Mother gave birth to Child May 16, 2011. Mother claims that her Ex-Husband, with whom she plans to remarry, is the father and listed him as such on Child’s birth certificate. Despite an order from the Family Court compelling Mother to undergo genetic testing for herself and Child, neither was tested due to Mother’s maneuverings.  The Family Court entered an order following a hearing on a paternity complaint by Putative Father.

The Family Court found Mother in contempt of multiple  orders from the Family Court, which ordered her to submit herself and Child to genetic testing by a later date or serve 180 days in jail. Mother refused to comply with the Family Court’s orders.

 ANALYSIS:

 Mother alleged that she and Child should not have been ordered to complete the genetic testing because no state action was involved; Putative Father did not qualify as such under KRS 406.21 and could not challenge paternity; Ex-Husband was presumed to be Child’s father because Child was born less than five months before the parties’ divorce; the Family Court’s order violated Mother and Child’s constitutional right to privacy; and the Family Court should not have ordered the maximum contempt penalty for Mother’s failure to comply with the court’s order.

 KRS Chapter 406 is the means by which courts determine fatherhood. While a child born during lawful wedlock may be presumed to be the husband’s child under KRS 406.11, that presumption is rebuttable, so that a legal finding of paternity is not denied to a putative father. KRS 406.091(2) mandates genetic testing upon a request of a party supported by an affidavit. Putative Father in this case made such a request, and it was the Family Court’s duty to order the genetic testing. Mother should have requested written findings of fact and conclusions of law from the Family Court regarding whether Putative Father qualifies as a putative father under the statute and whether he had standing to assert a claim of paternity. However, Putative Father presented sufficient evidence on the record that he had sufficient access to Mother to make him Child’s father. Mother and Putative Father lived together at the time of conception and engaged in sexual relations, and Putative Father was present when Mother took a pregnancy test, which was subsequently confirmed by a doctor. Mother told Putative Father repeatedly that he was Child’s father during the pregnancy, and Putative Father provided Mother with food, shelter, clothing and medical care during the pregnancy. Putative Father also opposed abortion and adoption options when they were presented by Mother. Thus, Putative Father had standing to challenge paternity and request genetic testing. Holding otherwise would deny Putative Father the right to prove his claim of paternity and deny Child the right to develop a relationship with his biological father. Furthermore, Mother offered no proof that would exclude Putative Father as a potential father of Child, especially since she told an Ohio family court in proceedings with Ex-Husband that she was not pregnant.

 Mother was ordered to complete genetic testing on herself and Child on four separate occasions and violated each order. The 180 day jail sentence for contempt was completely appropriate. Her attempts to halt Putative Father’s claims and the fact that she could have purged the contempt by complying with the Family Court’s order was sufficient to uphold the sentence. Digested by: McKenzie Cantrell, Attorney, of counsel, Diana L. Skaggs + Associates

           

CR 60.02 motion for relief from child support for non-biological child, case digest, Hughes v. Hughes, Ky Court of Appeals

Hughes v. Hughes, 2012-CA-000077-ME

Published:   Affirming  

County:  Jefferson

Ex-Husband appealed FC’s order denying his CR 60.02 to terminate child support for child not biologically related to him.

FACTS:

While Husband was serving in the Navy, Wife filed for divorce.  Paternity of the four minor children was not placed an issue in the petition.  Subsequent to the filing of the petition, but prior to entry of the decree, the parties submitted privately to paternity testing of the youngest child.  The Decree of Dissolution was entered prior to the parties’ receipt of the result of the paternity test.  The Decree ordered child support for all four children.  Subsequently, the parties received the results of paternity testing indicating that the youngest child was not the biological child of Ex-Husband.  Ex-Husband continued to pay full amount of child support.  Some years later all four children learned that Ex-Husband was not youngest child’s biological father. 

All of Ex-Husband’s biological children were emancipated by 2010.  Ex-Husband nonetheless continued to pay the full amount of child support for his unemancipated, not biologically related child.  Ex-Husband’s income had increased substantially at this time, while Ex-Wife was receiving state assistance due to her status as a full-time student with a part-time job.  Thus, in 2011, the Cabinet filed a motion to intervene and to modify child support on Ex-Wife’s behalf.  In response, Ex-Husband filed a CR 60.02 motion to terminate child support based on emancipation of his three biological children and the fourth child being not biologically related.  FC denied 60.02 motion, finding that it was not filed within a reasonable time, and Ex-Husband was therefore estopped from seeking relief from his child support obligation.  FC also increased child support from $863.64 to $1,009.00 per month for the nonbiologically related child. 

ANALYSIS:

“Reasonable time” requirement of CR 60.02 is within FC’s discretion.  Given that Ex-Husband had known since 2001 that he was not the biological father of the youngest child but continued to act as her legal father, FC did not abuse its discretion in denying his motion.  Further, it was not necessary for FC to consider whether doctrine of paternity by estoppel was implicated, as requested in Ex-Husband’s CR 52.04 motion.  CA held that FC correctly ascertained that the legality of Ex-Husband’s fatherhood is sufficient in this case to allow for the payment of child support.  It is in youngest child’s best interest for her legal father, Ex-Husband, to contribute adequate child support and supportive parenting.

Affirmed.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Putative Father Entitled to Evidentiary Hearing Before Paternity Adjudication, JDC v. CHFS, Digest, Ky Court of Appeals

J.D.C v. CHFS, 2012-CA-000670-ME

Published:   Reversing and Remanding   

County:  Barren

Putative Father appealed FC’s judgment of paternity, claiming he should have been granted evidentiary hearing.    

FACTS:

Mother of Child filed paternity complaint against Putative Father.  Genetic testing confirmed that Putative Father was the biological father of Child, and Putative Father did not contest the validity of this testing.  He continued to contest the finding of paternity and requested an evidentiary hearing, contending that he did not have consensual sexual relations with Child’s Mother but that, while a guest in his and his wife’s home, she had unlawfully obtained his sperm from a used condom after he had sexual relations with his wife and inseminated herself with it.  FC denied Putative Father’s request for evidentiary hearing and entered a judgment of paternity.

ANALYSIS:

Putative Father contended to CA that FC’s refusal to grant him an evidentiary hearing was contrary to KRS Chapter 406.  CA agreed, holding that genetic testing alone is insufficient to establish paternity if the father were to raise a legally sufficient reason as to why paternity should not be entered against him.  Per KRS 406.111, genetic testing of 99% probability of paternity is only a “rebuttable presumption” which may be rebutted by a preponderance of the evidence.  Thus, putative fathers are entitled to an evidentiary hearing to attempt to rebut the presumption. 

CA also held that Putative Father’s argument that he did not engage in consensual sexual relations with Child’s Mother and did not consent to the use of his sperm would trump any public policy arguments requiring fathers to support their out-of-wedlock children or holding a man strictly liable for his sperm if he engages in consensual sexual conduct. 

Reversed and Remanded for an evidentiary hearing.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

J.P. v. S.B.B. and B.B., Ky COA, Paternity and Standing

J.P. v. S.B.B. and B.B.

No. 2011-CA-000516-ME

Published: Opinion Vacating and Remanding

County: Pulaski

J.P. appeals an Order of Pulaski Circuit Court denying his petition to establish paternity, custody, visitation, and child support.

J.P. and S.B.B. had an affair that lasted several years, from approximately 2001 until 2007. S.B.B. was married the entire time and sexually active with J.P. and her husband. S.B.B. gave birth in January 2004 to T.C.B. and J.P. was involved in the child’s life until S.B.B. ended the affair in 2007. When S.B.B. terminated his visits, J.P. filed a petition to establish paternity, custody, visitation, and child support in July, 2009. In September, 2009, J.P. filed a petition for genetic testing to establish paternity.

The Pulaski Circuit Court held a hearing in November, 2010 and entered its findings of fact and conclusions of law in February, 2011. The trial court found that since the marital relationship between S.B.B. and her husband had not ceased during the ten month period preceding the birth of T.C.B., that J.P. lacked standing to pursue a paternity action and further held that it did not have subject matter jurisdiction.

Standing is defined as a party’s right to make a legal claim or seek judicial enforcement of a duty or right, and the requirement is met if the party has a real and substantial interest in the subject matter of the litigation. Whether a party has standing is determined by the facts of the case.

The trial court relied on J.N.R. v. O’Reilly, 264 S.W. 3d 587 (Ky. 2008) which focused on the date the marital relationship ceased. The legal presumption was that a child born to a married woman was the child of her husband unless evidence shows the marital relationship ceased ten months before the child’s birth. 

Several months after this case, the Supreme Court overruled O’Reilly in J.A.S. v Bushelman, 342 S.W. 3d 850 (Ky. 2011), and shifted the legal analysis away from the status of the woman’s marriage and instead scrutinized whether the woman’s lover presented sufficient evidence to support the possibility of a paternity claim. Because Bushelman superseded O’Reilly, the Court of Appeals held that J.P. had presented enough evidence to proceed with his paternity claim. Accordingly, pursuant to the more recent authority set forth in Bushelman, the order of the trial court is remanded for additional proceedings.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

 

 

 

 

 

 

 

 

 

 

 

 

S.B. v. M.C., Ky COA, Paternity, Jurisdiction, Child Custody

S.B. v. M.C.

No. 2009-CA-000966-ME

Published: Opinion Reversing and Remanding

County: Scott

S.B. appeals from the Scott Family Court’s dismissal of his action to establish paternity of L.R.C., a minor child born to M.C., for lack of subject matter jurisdiction.

M.C., a married woman, acknowledges she had an affair with S.B. in 2005 and that S.B., and not her husband, is the biological father of L.R.C., born in January, 2006.  Since L.R.C.’s birth, M.C. encouraged S.B.’s involvement in L.R.C.’s life and S.B. immediately began providing financial support.

In March, 2006, S.B. wanted a more formal division of time-sharing and filed a petition for paternity.  DNA tests confirm that S.B. is L.R.C.’s father by a probability of 99.9%.  M.C. filed two answers.  The first was dated April 7, 2006 and denied all allegations and requested attorney’s fees.  The second answer, dated April 12, 2006 admitted all the allegations in S.B.’s petition and stated that S.B. was L.R.C.’s father.

On April 17, 2006, M.C. filed a petition stating that she and S.B. are L.R.C.’s parents and asked the court to establish custody, award child support, and establish time-sharing.  In July, 2006, S.B. petitioned for temporary and permanent custody and support.

For the next two years, the parties returned to court numerous times on matters related to time-sharing, overnight visits, limiting S.B.’s use of alcohol, holidays, insurance and tax credits, and the court entered orders up to August, 2008.

On August 22, 2008 the family court sua sponte entered an order temporarily setting aside all previous orders while it considered the constitutionality of the paternity statutes.  S.B. filed a memorandum in support of a custody determination, but M.C. tendered a notice of dismissal and a supporting memorandum.  She argued that family court did not have jurisdiction to hear the paternity case and was without jurisdiction to establish custody.

In March, 2009, the family court issued an order denying S.B.’s motion for a custody order and granting M.C.’s motion to dismiss.  The court determined that it was without subject matter jurisdiction because KRS 406.180 limits jurisdiction to children born “out of wedlock,” and cited J.N.R. v. O’Reilly, 264 S.W.3d 587 (Ky. 2008).  After denial of his motion to alter or amend, S.B. appealed.

The Court of Appeals found that M.C.’s judicial admissions rebut the presumption that her husband was L.R.C.’s father, and in addition, they never challenged the results of diagnostic paternity tests.  Not until the family court determined the need to evaluate the constitutionality of the paternity statutes did M.C. change her mind and argued that she had always intended to raise L.R.C. as her husband’s child.

Because the presumption that L.R.C. was born during lawful wedlock has been rebutted, family court had jurisdiction to establish paternity and determine custody.  The matter was reversed and remanded to Scott Family Court for a determination of paternity and custody consistent with this Opinion.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

J.A.S. v. Hon. Lisa O. Bushelman, Judge, Ky. S. Ct., Paternity, Subject Matter Jurisdiction, and Standing of Putative Father

J.A.S. v. Hon. Lisa O. Bushelman, Judge

Kenton Circuit court and C.H.E., Real Party in Interest

2010-SC-000045-MR

Published:  Affirming

County:     Kenton

J.A.S., the mother of infant N.R.S., appeals as a matter of right from a decision of the Court of Appeals denying her petition for a writ of prohibition.  She sought the writ to bar Judge Bushelman from adjudication of an action filed by C.H.E. to determine the paternity of N.R.S.

 The Court of Appeals declined to grant Appellant’s petition and affirmed Judge Bushelman’s conclusion of law that N.R.S. was born out of wedlock, because Appellant’s extra-marital affair constituted a cessation of her marital relationship more than ten months before N.R.S.’s birth.  Therefore, under KRS 406.011, the trial court had subject matter jurisdiction.

The specific question is whether the paternity of a child born to a married woman, who throughout the relevant period maintained a sexual relationship with her husband, may be adjudicated in Kentucky courts upon the petition of a man who, by the apparent results of a DNA test, is virtually certain to be the biological father of the child.

J.A.S. and C.H.E. were involved in a secret affair from August, 2007 until March, 2008, although J.A.S. continued to have sexual intercourse with her husband.  In September, 2008 J.A.S. gave birth to N.R.S. and two weeks later she and C.H.E. arranged for a DNA test to determine if he was the father of N.R.S.  When the test revealed a 99.9429% probability that he was the father, C.H.E. expressed a desire to acknowledge the child and J.A.S. informed her husband of the affair.

In October, 2008, C.H.E. filed a paternity action pursuant to KRS Chapter 406.  In her response, J.A.S. denied that C.H.E. was the father and affirmatively pled that the Court lacked SMJ and that C.H.E. had no standing to assert his paternity claim.  She moved to dismiss the paternity action, relying upon the lead opinion in J.N.R. v. O’Reilly, 284 S.W.3d 587 (Ky. 2008).

The Court of Appeals discussed the J.N.R. case and held that because less than a majority agreed on the reasoning for the decision it should not be cited as a holding of the Court and to the extent that J.N.R. is perceived or deemed to have binding precedential authority, it is overruled.

The trial court, guided by J.N.R. concluded that it had SJM per KRS 406.011.  J.A.S. filed an original action in the Court of Appeals for a writ of prohibition, which CA denied.  The Supreme Court affirmed Court of Appeals, although on other grounds.  The Supreme Court concluded the Trial Court had SMJ under KRS Chapter 406.051 and 406.180, and C.H.E. had standing because he is a putative father authorized under KRS 406.021 to file a complaint to have paternity determined.

The Supreme Court engages in a lengthy discussion of Kentucky law regarding paternity, presumptions, and proof, as well as recent developments in genetics and DNA analysis.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Draper v. Commonwealth, Ky COA, Paternity, Child Support and Joint Custody

Draper v. Commonwealth of Kentucky, et al, 2010-CA-000112-ME

and

Heacock v. Commonwealth of Kentucky, et al, 2010-CA-000185-ME

Published:   Reversing & Remanding

County:  Barren

 

        Shannon Heacock was married to Jesse Heacock who was injured in a boxing match in 1999 and lapsed into a coma leaving him with significant mental and physical impairments.  Although Shannon cared for Jesse in their home, she dated other men and in 2002, John Draper moved into the home.  In 2004, Shannon gave birth to A.N.H.

 

        In a paternity action filed against Shannon by the Barren County Attorney on behalf of Draper and A.N.H., genetic tests revealed a 99.995% probability that Draper was the father of A.N.H. and on September 4, 2007, entered a judgment determining Draper is A.N.H.’s father.  On January 4, 2008 the court entered a temporary support order requiring Draper to pay child support of $401.00 per month.

 

        On January 11, 2008 the court entered an agreed order granting temporary joint custody to Draper & Shannon.  Disputes about visitation continued and after both parties sought primary custody, a custodial evaluator was appointed.   There was an evidentiary hearing on February 25, 2009 and in her post-trial memorandum Shannon argued that, based on J.N.R. v. O’Reilly,264 S.W.3d 587 (Ky. 2008), the trial court lacked subject-matter jurisdiction.  The court reopened the evidentiary hearing and in light of O’Reilly, set aside all prior custody, visitation, and support orders as void ab initio, dismissed the paternity action for lack of SMJ and ordered Shannon to reimburse Draper $11,762 for child support paid under the temporary order.  These appeals followed.

 

        The CA conducted a lengthy analysis of O’Reilly, noting its limited precedential value due to the fragmented nature of the opinion, and then discussed the more recent case of Harrison v. Leach, 323 S.W. 3d 702 (Ky. 2010) when the Kentucky Supreme Court reviewed the distinction between standing and jurisdiction as applied to de facto custodians.

 

        CA concluded that KRS 406.011 sets forth standing requirements for a third party to assert paternity of a child born during the lawful wedlock of a husband and wife, but objection to standing may be waived if not timely raised.  The CA cited Harrison to explain that “subject-matter jurisdiction involves a court’s ability to hear a type of case while standing involves a party’s ability to bring a specific case. Id. at 705.

 

        The CA found that the family court division of Barren Circuit Court has jurisdiction over paternity petitions and that Shannon’s objection to standing was waived because it was not timely raised.  Since Shannon’s objection to Draper’s standing was waived, CA concluded TC erred by setting aside the paternity judgment as void and dismissing Draper’s petition.  After reinstating the paternity judgment, the issues raised in Shannon’s appeal concerning recoupment of child support are moot.

 Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

N.H. v. Comm., et al, Ky COA, Subject Matter Jurisdiction, Paternity

N.H. v. Comm., et al, 2010-CA-000955-ME

Published:   Affirming

County: Simpson

 

Appellee K.M.F. and her husband, S.S. were separated from December, 2007 until January, 2009.  In January, 2008, K.M.F. had sexual relations with Appellant, N.H., became pregnant and gave birth in October, 2008.  In November, 2008, K.M.F. filed a paternity action to determine if N.H. was the child’s biological father and DNA tests confirmed that he was.  In February, 2009, a judgment of paternity was entered against N.H., who filed a CR 60.02 motion to set aside the judgment.  He argued that the child was not born out of wedlock as required by KRS 406.011 and thus the trial court lacked jurisdiction.  N.H. appealed the trial court’s denial of the CR 60.02 motion.

 

Appellant contended that the trial court lacked jurisdiction because since K.M.F. and S.S. were married when the child was born, there was a presumption the child was born of the marriage, citing J.N.R. v. O’Reilly, 264 S.W.3d 587 (Ky. 2008).  In J.N.R., the Supreme Court held that Kentucky courts lacked subject matter jurisdiction to determine paternity claims in the absence of evidence or allegation that the marital relationship ceased ten months before the child’s birth.  In this case, however, all evidence supported the assertion that the marital relationship of K.M.F. and S.S. ceased in November, 2007 and did not resume at any time in the eleven months before the child’s birth in October, 2008.  Therefore, the trial court had subject matter jurisdiction over the paternity action.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

 

Smith v. Garber, Ky. S. Ct., Paternity

Smith v. Garber, et al, 2009-SC-000738-MR

Issue:  Affirmed Court of Appeals denial of a writ of prohibition to enjoin family

court from ordering genetic testing.

Published:  Affirmed

County:  Jefferson

 

Andrew Cahill, the real party in interest, filed a suit in Jefferson Family Court seeking to establish paternity and obtain custody of T.E.S., a minor child born to Bethany Smith, the former wife of Trevor Smith.  When the trial court ordered genetic testing, the Smiths sought a writ of prohibition from the Court of Appeals, which was denied.  The Supreme Court affirmed, holding that the family court was acting within its jurisdiction when it ordered genetic testing.

 

Trevor and Bethany Smith were married the first time on October 26, 2002.  In December, 2003 they filed a joint petition for dissolution of marriage and alleged that Bethany was pregnant with a child of a man other than her husband.  They also alleged that they had been separated since July, 2003 and the child was conceived in October, 2003.  Their divorce was final on February 19, 2004.  They remarried on July 15, 2004 and T.E.S. was born the next day.  The Smiths were divorced a second time in September, 2007 and they were awarded joint custody of T.E.S.  Subsequently when Bethany Smith informed Andrew Cahill that he was T.E.S.’s father, he filed a petition in Jefferson Family Court to establish paternity and seeking custody of T.E.S.  This was Cahill’s first opportunity to raise the question of whether the child was born out of wedlock, because he was not informed that he was the alleged father until after the second divorce was final.

 

The trial court overruled motions to dismiss Cahill’s petition and ordered genetic testing to resolve the paternity issue.  The Smiths sought a writ of prohibition from the Court of Appeals, which was denied.  They appealed to the Supreme Court, urging it to find that the family court acted outside its jurisdiction.

 

Analysis

 

Kentucky’s family courts have jurisdiction in all proceedings under the Uniform Act on Paternity, KRS Chapter 406, which applies to cases of birth out of wedlock.  Therefore, a petition must allege that a birth occurred out of wedlock to invoke family court’s jurisdiction under Chapter 406.  The necessary elements for determining that a child is born out of wedlock, other than in the case of an unmarried woman are (1) that the child be by a man other than the mother’s husband and (2) that there is evidence that the marital relationship between husband and wife ceased ten months before the child was born.

 

KRS 406.011 establishes a presumption of paternity if a child is born during lawful wedlock or within ten months thereafter.  Trevor would have this presumption, even though he and Bethany admitted that Trevor was not T.E.S.’s father in their first divorce.  The admission could have been offered in rebuttal of the presumption in the second divorce, but the question of paternity was not raised in the second divorce and the parties were granted joint custody.

 

Since neither party raised the paternity question in the Smiths’ second divorce action, the trial court believed T.E.S. was Trevor’s child and he was awarded joint custody.  When Cahill was informed that he was the child’s father, his only option was an original paternity action.

 

The two questions to be decided were (1) did Cahill have standing to bring an original paternity action to establish his paternity status and challenge Trevor’s grant of joint custody and (2) did Jefferson Family Court have subject matter jurisdiction to hear his original paternity petition when it had already vested custody in another father.

 

As a putative father, Cahill could bring a paternity action and the trial court had to determine if evidence was sufficient to raise the question of whether the child was born out of wedlock.  Cahill’s evidence was sufficient to invoke the family court’s subject matter jurisdiction, and the family court judge, having found that she had jurisdiction, ordered paternity testing to establish biological paternity.

 

The second jurisdictional question is whether there has already been a paternity determination since joint custody was awarded to the Smiths.  Unless that judgment is modified according to law, the Smiths are the child’s legal parents.

 

The Supreme Court held that biological parents who are deprived of parenting through no fault of their own cannot be prevented from pursuing a paternity action even if joint custody has already been granted.

 

Jefferson Family Court had jurisdiction to determine Cahill’s paternity claim and the Court of Appeals’ denial of a writ of prohibition is affirmed.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

 

J.R.A. v. G.N.A., Ky COA, Paternity By Estoppel

J.R.A. v. G.N.A. , 2009-CA-001709-ME

Issue:  Reversal of family court holding that father was equitably estopped from

denying paternity.

Published:  Reversed and Remanded

County:  Jefferson

 

When family court adjudicated appellant the legal father of appellee’s child, he brought this appeal.

 

Three days after appellee married her first husband, S.L.S., she gave birth to a daughter, D.A.S. and the child took the last name of S.L.S.  When appellee and S.L.S. divorced a year later, the decree made no reference to any children of the marriage, and appellee testified that S.L.S. was not the child’s biological father.

 

Three years later appellee and appellant were married.  The next year the parties filed a Declaration of Paternity with the State Registrar of Vital Statistics with an affidavit stating that appellant was the biological father of D.A.S.  The child’s last name was changed to that of appellant.

 

After another three years, appellant filed a Petition for Dissolution of Marriage and moved for a hearing to determine his paternity rights and obligations.  He averred that he was not the biological father of D.A.S. and that both parties were aware of that fact when they executed the Declaration of paternity which he said was only signed to obtain insurance coverage for the child through his employer.  Appellee admitted appellant was not the biological father but claimed he should be estopped from denying parentage because he had assumed a parental relationship with the child and held himself out as the father.  Family Court concluded that appellant was equitably estopped from denying paternity and that he was the child’s father with all the rights and responsibilities of a natural parent.

 

The doctrine of paternity by estoppel was recognized in Kentucky in S.R.D. v. T.L.B., 174 SW 3d 502 (Ky. App. 2005) and requires conduct, including acts, language and silence, amounting to a representation or concealment of material facts, the estopped party is aware of these facts, these facts are unknown to the other party, the estopped party must act with the intention or expectation his conduct will be acted upon, and the other party relied on this conduct to his detriment.

 

The CA distinguished the instant case because since the child was not born during the marriage, there was no presumption of paternity, and more importantly, the child knew appellant was not her biological father.  When appellant married the child’s mother, he became the stepfather.  The affidavit of paternity created a rebuttable presumption of paternity, but since both parties admitted the affidavit was false, the presumption was clearly rebutted.  The only method by which a stepparent acquires the legal status of parent is by adoption which requires termination of the parental rights of the biological parent.  Since none of these events occurred to establish appellant’s legal relationship as father of D.A.S., the family court’s Order was reversed and remanded for proceedings consistent with this opinion.

 

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

Walgreens Begins Retail Sale of Identigene DNA Paternity Test Kit

From The Wall Street Journal Market Watch: "Suggested retail price for an Identigene DNA Paternity Test Collection Kit is $29.99. The Walgreens.com price is the same, plus shipping. The laboratory and processing fee for the personal test is $119. The laboratory and processing fee for test results for legal proceedings is $319."

Time Magazine Reports Ky Bio-Dad Decision And Putative Father's Plan To Go To U.S. Supreme Court

The story is online here. Some quotes: Last week, in a decision that underscores the tense relationship between science and law, a divided Kentucky Supreme Court told Rhoades that he could not press his paternity claim, no matter what evidence of fatherhood he might have, because J.N.R. was, and remains, a married woman. When it comes to defining fatherhood in the Bluegrass State, where Ricketts and her husband now live, the marital "I do" mean a lot more than DNA.

The report continues, But unlike the past, such allegations these days are often backed by science, introducing certainty where none before existed. As of a result, the prohibition on third-party challenges to paternity has begun to weaken. By 2000, at least 33 states had adopted rules that allowed challenges by fathers with genetic proof of their paternity, usually restricting such efforts to the first two years of a child's life. The advent of DNA testing has tread a similarly disruptive course in other areas of law, including criminal cases where exonerations once thought impossible are becoming routine. A few states have even begun allowing ex-husbands to present DNA evidence that they were duped by cheating spouses to avoid child support obligations.

What's next? Rhoades said he plans to appeal to the U.S. Supreme Court on constitutional grounds. But he faces long odds there, given that the high court has already ruled once, in 1989, on the same issue, upholding California's explicit bar against paternity challenges like his. That decision too was divided and contentious. The biological father in that case did not get to see his daughter till she had turned 21. "Well, obviously I am not going to give up and say, 'Oh well I lost,'" Rhoades says. "I believe I have a fundamental right to be in my son's life." The trouble is: nature's law isn't the law of the land.

Comments To The Morning After Bio-Dads Lose Big

Comments tend to get lost on this blog. I thought the following exchange was interesting enough to post separately:
Ms. Kates...I respectfully disagree with your analysis as you neglect to consider that individuals under the U.S. Constitution are afforded the right to due process, which I've been denied in this case. In addition, the U.S. Supreme Court has recognized that when there is a relationship between a parent and child it is to be preserved and protected. In the case at issue, I am not a stranger to my son as I had a relationship for the first few months of his young life. Furthermore, the Supreme Court have recognized that natural parents have a fundamental liberty interest in the care, custody, and management of their children that does not evaporate, Santosky v Kramer. There are procedural safeguards when someone tries to terminate a natural parents rights without a hearing, parents and childrens' rights are fundamental in regards to termination of parental rights. Of course you are arguing that no man who is not married to a woman should have any rights. If I've understood your position correctly. Under the recent KY Supreme CT ruling if a married man gets a single woman pregnant and takes possession of the child, as long as his wife and him do not dissolve their marriage the biological mother has no parental rights. In theory I believe this would be correct, but of course we know that would never happen because it goes against common sense. Regardless, we will just have to see how the U.S. Supreme Court feels about the rights of a biological parent who happens to be a parent. I'm one of many who believe the truth does matter and should still play a role in justice.
Posted by: James Rhoades

We share DNA with all living things, yet even some of our very close relatives, such as siblings and grandparents, are not assumed to have automatic legal familial rights. We also recognize parentage that arises from other than biology, e.g. adoption, surrogacy, and gamete donation. We also have institutionalized marriage, which at its inception is the formation of nonbiological "family" which is not dependent at all upon the existence of children before the couple is recognized to be "family" to each other.
In no other area of the law do we recognize property rights in biological body parts, or following body parts that have left the body, whether cells from which vaccines have been made, or hair, or donated organs. In order to consider sperm and ova differently, we would have to make an arbitrary assumption about these half-cells that they are in some way different. Mostly, that assumption is not founded in reason, but in the premises of some (and not all) cultural and religious traditions.
I would argue that the United States constitution recognizes the liberty interests of actual families, families in fact, families that still would exist as coresidential and ocmmitted social units in the absence of law -- and not the asserted property rights of individuals in and to the products of their discarded gametes.
I think it is an unwarranted presumption that sperm donors (or egg donors) automatically, and without more, have emotional attachments to other human beings they may have never met. We may inculcate some kind of real emotional issue for individuals in how they view their own genes and so forth, but this idea to me is what is the "property rights" (posssessory) versus "relationship" perspective.
I would suggest instead that the government's intrusion into actual marriages and functioning families in order to elevate this pretense into an artificial notion of "family" founded on biology actually denigrates exactly what it is that the constitution recognizes and respects as the family.
"Family" is not DNA, a material so widely shared that the differences between members of an entire species are miniscule. Rather, it is the coresident social unit of individuals whose relationship "bonds" are evidenced in the way they live, by their actual emotional attachments born out of their habitual association with and knowledge of each other over time, and by their mutual support of and involvement with each other in a real family group -- the kind that would exist even in the absence of law... or paternity testing technology.
Posted by: Elizabeth J. Kates, Esq.

Ms. Kates you can't be serious? So you think biological fathers should have no rights and just because they share a genetic bond with their children the law should suppose they don't carry affection towards their children? I know my viewpoint is skewed because the case involves my son who I care deeply about but I think your viewpoint is ridiculous. Surely you would never promote your interpretation regarding a biological mother? You have opinion makes children a piece of property and be damned with their best interest. And let's throw Constitutional rights out the window too if a man was a child out of wedlock and petitions for his rights as a father. In all due respect, the Kentucky Supremes were totally inconsistent in the majority opinion. Cunningham had assumed biological fathers have a right to custody and visitation even without having their parentage ajudicated in his Hinshaw v Hinshaw opinion when he talked about Mrs. Hinshaw seeking to terminate the biological fathers rights so Hinshaw could have adopted the child. Seems kind of weird that Justice Cunningham would write that one biological father in one paternity case has rights while writing another opinion saying this biological father has no rights. Shouldn't Cunningham be a little more consistent?
James Rhoades Real Father in Recent KY Sup Ct decision
Posted by: James Rhoades

The Kentucky decision was correct, and I am glad to see it. With the advent fairly recently of DNA testing, we have forgot that providing reproductive gametes is not necessarily what determines legal parentage, or is in fact sufficient to presume affection, responsibility, or enduring relationship ties. It is unfortunate that in this one area of the law, largely confused by religious and political agendas, and consequent erroneous precepts underlying child support theory, that even as we embrace broader definitions of "family" in some respects, so many legal scholars have simultaneously moved in the inconsistent direction of making unwarranted assumptions that equate legal rights and responsibilities with a tracing of bodily effluence.
Elizabeth Kates

JNR and JFR v. Honorable Joseph O’Reilly, Judge, Jefferson Family Court

JNR and JFR v. Honorable Joseph O’Reilly, Judge, Jefferson Family Court
and JRG, Real Party in Interest, ___ S.W.3d ___ (Ky. 2008)
2007-SC-000175-MR

JGR (James) filed a custody and support petition, alleging DNA confirmed him to be the biological father of a child who lived with his mother, JNR (Julia), who was married to JFR (Jonathan). After the family court refused to dismiss the petition, Julia and Jonathan were denied a writ of prohibition in the Court of Appeals and appealed to the Kentucky Supreme Court. The Supreme Court ruled 4 to 3 in favor of Julia and Jonathan in five separate opinions.

The opinion of the Court by Justice Minton in which Chief Justice Lambert concurred held that the family court was without subject matter jurisdiction to determine paternity claims brought by a biological father where there is no evidence or allegation that the marital relationship ceased ten months before the child’s birth. Because 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, the Court of Appeals erred in denying the writ of prohibition. Although the parties debated the due process and equal protection rights of the unmarried biological father, the constitutional claim was not perfected by serving a challenge on Kentucky’s Attorney General.

Justices Cunningham and Scott concurred in the result only, and each wrote separate opinions in which the other joined. Justice Scott opined that only the parties to a marriage can challenge the presumption of legitimacy under KRS 406.011 and there is no constitutional right of a “stranger to the marriage” to assert paternity under such circumstances. Justice Cunningham wrote that this case is squarely about the legal status of marriage and about a married couple’s right to be left alone from the allegations of an interloper asserting the claim of fatherhood.

Justice Abramson dissented by an opinion in which Justice Schroder joined and wrote that the Supreme Court erred grievously in its holding. She distinguishes “marital relations,” the sexual aspects of marriage with the “marital relationship,” the broader aspect of emotional, physical, social, and moral dimensions characterized by a monogamous bond. She believed 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. While the marriage may still exist as a matter of law and sex may still occur between the spouses on occasion, the monogamous “marital relationship” ceases when the third party enters the picture. She focuses on the words actually used by the legislature as the operative concern and notes that it also makes common sense. A child born to a married woman and a lover who is not her husband is indeed born out of wedlock. The evidence which would show a cessation of the marital relations would need to be assessed on a case by case basis but would encompass the situation, as here, where the putative father has had a visitation with the child through the mother’s cooperation and has secured DNA testing establishing biological fatherhood.

Justice Abramson challenges the majority belief that its holding protects the integrity of the family. If a mother alone can harbor the secret of paternity so long as it serves her purposes, there is no societal disincentive to conceiving a child outside the bounds of marriage. Secondly, she notes that there are tens of thousands of blended families in Kentucky who cope with shared parenting. The only variable in this case is that the only child who has a parent outside the home is the younger as opposed to the older child or children. Finally, she notes the medical and psychological consequences to a child who should have a right to know his parentage.

Justice Noble dissented by separate opinion writing that the majority confused a statutory element of proof as a requirement for standing. One does not have to prove an element in order to have the right to plead it. She believes the majority jumped over the hurdles of proper pleading and procedure to the evidentiary merits of the case, noting that even on writ procedures from the Court of Appeals, the Kentucky Supreme Court is not the fact finder. She wrote that this case is one example of evolving legal questions that arise when a new type of court is instituted. Under KRS 406.021, a putative father has standing. Once a party has standing, then certain elements of proof must be established to rebut the presumption that a child born during the marriage is the child of the husband. One does not have to prove an element of a claim to have the right to plead it. She opined that James clearly has a due process right to at least be heard, because he does have standing.

The Morning After Bio-Dads Lose Big In Kentucky

I would have loved to have been a fly on the wall as the Kentucky Supreme Court deliberated this four to three decision which we reported on yesterday here. I am unaware of another family court case creating such a split among the justices. The 47 pages reveal highly charged emotions. The Opinion of the Court by Justice Minton and joined by Justice Lambert appears to try to take the emotion out of the debate but splits hairs to reach the result. Justice Abramson’s dissent in which Justice Schroder joined is passionate and I think well reasoned. If a child carries the DNA of a man other than the husband, it is common sense that the child is not born of the marriage. The concurring Opinion by Justice Cunningham fumes about the morality of it all, interjects words like “interloper” (but declines to judge the wife’s infidelity), and I wonder how his opinion would have been written if the husband and wife were divorcing rather than reconciled. His regret over the abolition of the tort of alienation of affections leaving the “innocent victim of betrayal” without “recourse against the interloping adulterer” is telling. My first jury trial 25 years ago was an alienation of affections case and I can tell you Kentucky abolished that tort none too soon.

The legislature could deal with this result by adoption of the Uniform Parentage Act, bringing Kentucky into the mainstream of states across the country. This act has been endorsed by both the American Academy of Matrimonial Lawyers and the American Bar Association.

In the absence of similar legislation I would not be surprised to see perfected constitutional arguments raised, perhaps yet in this case. The Kentucky Supreme Court expressly declined to rule on the due process and equal protection arguments because they were not procedurally addressed in the trial court. By the way the opinion of the court was written I wonder if Justice Minton might be a “swing vote” on this issue. Even had he not announced his resignation, unless his thinking changed, I would not have expected Chief Justice Lambert to join ranks with the dissenters because of his comment in another case that some things should just be kept secret. Maybe this case was the last straw?

Andrew Wolfson reports in today's Courier Journal Court Rejects Paternity Rights For Man In Affair, online here. I didn't see a peep about it in the Lexington Herald-Leader.

The bio-dad left the following comment yesterday, which I have edited slightly to remove certain allegations that I am unable to verify: As the REAL father, I'd like to say that today is a very sad day for everyone who believes truth and honesty hold value. It was through deception, a lengthy extra-marital affair, that my son was conceived and now Kentucky's highest court believes such deception should not end. I long ago accepted that having a 1 1/2 year affair with Julia Ricketts was wrong but this decision absconds her from any responsibility. I believe this ruling if not overturned will have a detrimental effect upon the rights of biological fathers in Kentucky. Essentially, my rights as a biological father have been terminated without a day in court. This puts absolute power in the hands of mothers.

Putative Father Lacks Standing To Assert Paternity Of Child Born During Marriage In Kentucky

The Kentucky Supreme Court decided J.N.R and J.S.R v. Joseph O’Reilly and J.G.R, Real Party in Interest, commonly known as the “Rhoades v. Ricketts” case today, online here), an unprecedented 4-3 decision with two concurring opinions and two dissenting opinions. 47 pages in all. The opinion of the Court by Justice Minton in which Chief Justice Lambert joined held that the paternity court lacked subject-matter jurisdiction to hear the biological father’s claim for custody and visitation because KRS Chapter 406 limits its applicability to cases of children “born out of wedlock” and that term is defined by statute, when the child is born to a married woman, to paternity claims 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.” Since there was no allegation or proof that the marital relationship had ceased within ten months prior to the child, the Court lacked subject-matter jurisdiction. Interestingly, the Court seemed to invite constitutional challenges to the paternity statute. Although the parties to that case debated an unmarried biological father’s due process and equal protection rights, the constitutionality of the statute was not challenged nor served on Kentucky’s Attorney General. I suspect that we have not seen the end of this case.

Two concurring Justices, Scott and Cunningham, believe that the biological father’s status as a “stranger to the marriage” is the fundamental reason for the legislative language and there is no Constitutional right of a “stranger to the marriage” to assert paternity. Justice Cunningham in his separate opinion went so far as to say 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.”

Justice Abramson wrote a brilliant opinion, but unfortunately it was a dissenting one. A full digest of the case will follow.

Constitutional Challenge to Paternity Laws Dismissed By 6th Circuit For Failure to State Claim

Dubay v. Wells, decided by the 6th Circuit yesterday, denied a constitutional challenge to paternity laws, dismissing for failure to state a claim. Quotes from the Family Law Prof Blog:

The suit was brought by Father who claimed that he should not be responsible for child support when Mother had represented that she didn't want to have a child and assured him repeatedly she couldn't get pregnant. Father argued that Michigan's paternity laws violated the U.S. Constitution's Equal Protection Clause because a man does not have a similar choice as does a pregnant woman regarding abortion, adoption or raising a child.
The court found that Michigan Paternity Act does not affect any of Father’s fundamental rights because "it is not a fundamental right of any parent, male or female, to sever his or her financial responsibilities to the child after the child is born." The court further noted that it did not need to apply intermediate scrutiny because the Michigan Paternity Act and other statutes that impose the obligation of support are gender neutral. Finally, the court found that the Michigan Paternity Act withstood rational basis review because "the means that the statute uses to achieve this end–requiring support from the legal parents, and determining legal fatherhood based on the biological fatherhood–is substantially, let alone rationally, related to this legitimate, and probably important, government purpose."

Digest Of Hinshaw, Ky Supreme Court

HINSHAW (NOW LENARZ) V. HINSHAW
FAMILY LAW: EQUITABLE AVOIDANCE AND PATERNITY
2006-SC-000729-DGE.pdf
PUBLISHED: 605 AFFIRMING; OPINION WRITTEN BY - CUNNINGHAM
DATE RENDERED: 10/31/2007

Mom appealed CA’s opinion affirming TC’s order awarding joint custody of child to parents and primary residence to Dad, claiming that TC erred when it failed to resolve Dad’s custody rights based on DNA evidence indicating he was not biological father, and by applying equitable estoppel in its custody determination.

FACTS:
Mom gave birth to child during marriage of parties. At birth, Dad was in the delivery room, cut umbilical cord, and was named on birth certificate. Dad was led to believe that he was biological father to child, and was deeply involved in Child’s life as his father. Three and a half years later, Mom filed for divorce, and then amended her petition, alleging for the first time that Dad was not Child’s biological father and seeking court-ordered DNA testing to prove her claim. DNA evidence established that Dad was not Child’s biological father. TC appointed a custodial evaluator, who determined that the severance of Dad’s and Child’s relationship would result in severe emotional and psychological harm to Child. TC found that Mom was equitably estopped from challenging Dad’s custody rights based on DNA testing, that DNA test was irrelevant to issue of custody, and awarded joint custody to the parties with primary residence to be with Dad. CA affirmed TC on appeal.

ARGUMENTS AND ANALYSIS:
Mom argued that DNA tests rebutted the presumption of paternity in KRS 406.011 and thus triggered the application of KRS 406.111, requiring a resolution of paternity. Mom further argued that equitable estoppel cannot be applied in custody cases and that even if applied, Dad failed to establish the necessary elements of equitable estoppel.

“A party asserting equitable estoppel must show the following elements: (1) Conduct, including acts, language and silence, amounting to a representation or concealment of material facts; (2) the estopped party is aware of these facts; (3) these facts are unknown to the other party; (4) the estopped party must act with the intention or expectation his conduct will be acted upon; and (5) the other party in fact relied on this conduct to his detriment.” SC found that all these requirements were met in this case, as Mom’s acts, language and silence were all aimed at misleading Dad into believing he was Child’s father and at developing the father-son relationship. Though Mom argued that Dad failed to show reliance and conduct to his detriment, pointing to the fact that Dad had testified that he would not have done anything differently in his relationship with Child, SC disagreed. SC noted that Dad’s willingness to continue his relationship with Child had he known the truth is not the same as saying he would have taken no action at all. Mom’s failure to inform Dad of Child’s paternity denied Dad the opportunity to seek legal advice as to the relationship with Child and his rights and obligations with regard to Mom and Biological Father. SC noted that it followed other jurisdictions in its determination that equitable estoppel could be applied in custody cases, and that KY CA had applied the common law principle of equitable estoppel in S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky. App. 2005).
SC held that Mom, having encouraged Father/Son relationship between Dad and Child, could not now deny it, and that under the unique circumstances of the case, “equitable estoppel precludes [Mom] from challenging [Dad’s] status as [Child’s] father, a status she created and accepted.”
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Paternity, Workers comp, Uninsured Employers Fund

UNINSURED EMPLOYERS' FUND V. BRADLEY
FAMILY LAW: PATERNITY
WORKERS COMP: UNINSURED EMPLOYERS FUND (UEF)
2006-CA-000869
PUBLISHED: AFFIRMING
PANEL: KELLER PRESIDING; VANMETER, GUIDUGLI CONCUR
COUNTY: FAYETTE
DATE RENDERED: 10/19/2007

The Uninsured Employers' Fund (UEF) appealed from TC’s order denying its motion to set aside an order determining that deceased worker was father of child. The UEF argued that TC’s order was void ab initio because that court lacked jurisdiction; that it was a necessary party to this action; and that TC erred when it did not provide relief under CR 60.03.

FACTS:
Because Worker’s employer did not have worker’s compensation insurance when Worker died due to a work-related injury, UEF was joined as a party to worker’s compensation claim filed by Estate. During course of discovery in worker’s compensation claim, the parties determined that Worker might have fathered a child before coming to the U.S. from Mexico. Neither the child nor child’s Mother had ever resided in the U.S. After Administrative Law Judge refused to make paternity determination, Estate filed Complaint for Determination of Paternity in Family Court. UEF was not named as a party but was copied on Complaint. UEF did not move to intervene or otherwise respond to the complaint. Family Court entered Agreed Order of Paternity. A few months later, UEF filed Motion to Set Aside Paternity Order under CR 60.02. TC denied the Motion and UEF brought this appeal.

ARGUMENTS AND ANALYSIS:
UEF first argued that TC lacked jurisdiction to determine paternity on several different grounds. In order to file complaint under KRS 406.021, the complaint must have been filed by County Attorney or CHFS. As Estate filed the complaint, the complaint could not have been properly before the court under this statute. CA agreed. UEF also asserted that KRS Chapter 406, which is said to apply to all cases of birth out of wedlock, did not provide jurisdiction to TC to determine paternity, as the birth must have occurred in the state or the mother must have met certain residency requirements. As neither of these terms was met, UEF claimed that TC did not have jurisdiction to decide paternity under KRS Chapter 406. CA again agreed. However, CA found that Section 112 of the Constitution and KRS 23A.100 and 23A.110, when construed together, give the family court jurisdiction beyond KRS Chapter 406 proceedings, including declaratory judgment actions. Furthermore, though the complaint was styled as a determination of paternity, it was appropriate to treat the complaint as a declaratory judgment, as a pleading should be judged according to its substance and not its form.

UEF next argued that Estate fatally erred by failing to join it as a necessary party in the paternity action, because it had an interest that would be affected by the declaration of paternity, as it may be required to pay income benefits to any children of Worker. CA found that UEF did have an interest in the declaration of paternity, but that UEF should have attempted to intervene in the action, as only parties can complain that a necessary party was not joined.

Lastly, UEF argued for relief under CR 60.03, which provides for equitable relief through independent actions. In order to receive this relief, UEF should have demonstrated that there was no other available or adequate remedy; that it did not create or affect the situation for which it requests equitable relief through its own fault or neglect; and that there was a recognized ground for the relief, such as fraud, accident or mistake. CA found that UEF did not and could not have demonstrated any of these things, as the fact that it had the opportunity to intervene in the action affected each one.

As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Courier-Journal Reports On KY Duped Dad Decision

Andrew Wolfson's story, Man who was deceived about paternity retains custody online in today's Courier-Journal reports:

The Kentucky Supreme Court has ruled that people who deceive their spouses into thinking that a child is theirs cannot later contest their right to custody -- even if DNA tests show they are not the parent.

The court unanimously upheld a lower court ruling granting primary custody to Ren Ricky Hinshaw, whose wife led him to believe he was the father of their child until they divorced and she produced genetic testing showing the child wasn't his.

What caught my eye in the article was the statement, The Supreme Court said that if Hinshaw had known that he wasn't the father when the child was born, he could have tried to adopt him. Perhaps this footnote us some insight into where the court is heading as it considers the other husband/bio dad pending case argued the same day but not yet decided.

DLJ reported on the Hinshaw decision and linked to the opinion here. A long list of posts concerning this case and the companion case in the Kentucky Supreme Court can be found be clicking on the "paternity" category on the left sidebar.

Kentucky Supreme Court Affirms Hinshaw #1

Hinshaw v. Hinshaw #1, digested here, was affirmed by the Kentucky Supreme Court today, in an opinion available online. Wife was equitably estopped from claiming husband was not father of child.

FLA: Bio-Dad Loses to Husband In Florida

Lohman v. Carnahan, online, decided September 19, 2007 by the Florida Fourth District Court of Appeal. held where the husband and wife have decided to raise the child of their marriage and to accept all the rights and responsibilities of parenthood, a man who may have contributed his DNA to the child has no statutory or constitutional right to intrude into that private decision.

More On Evolving Paternity Law

The day after the Kentucky Supreme Court held oral arguments on two paternity cases as we reported here, the Michigan Court of Appeals decided Brooks v. Brooks. Jeanne Hannah of Updates In Michigan Family Law posts Nellie Bar The Door: Part II, a sequel to Nellie Bar The Door!. Although Brooks is an unpublished decision, her alarm demonstrates Kentucky is not the only state that, having failed to enact the Uniform Parentage Act , is wrestling with these hugely important paternity questions.

Someone told me that the oral arguments held at the University of Kentucky were going to be streamed online. I haven't found them, so if they are posted, I would very much like to know where.

An interesting development is that Hon. Lisabeth Hughes Abramson, author of the Court of Appeals opinion in Boone v. Ballinger, was installed on the Kentucky Supreme Court as Justice McAnulty's replacement just days before the duo of paternity oral arguments were held. If one is looking to guess where the Kentucky Supreme Court will land on this issue, my bet is that Justice Abramson will lead.

Briefs Posted Re Bio-Dad/Husband Cases (KY)

As no discretionary review was sought in Boone V. Ballinger, digested here, the published decision is now final. It would have made a nice trio instead of a duo of oral arguments next week before the Kentucky Supreme Court, as we have reported here and here. Thanks to Kentucky Court Report for posting the briefs filed in the Kentucky Supreme Court.

Being A Husband and Bio-Dad Not Enough To Establish Paternity? Not In New Hampshire If Child Conceived Posthumously

The New Hampshire Supreme Court held last month that a child conceived after her father’s death via artificial insemination is ineligible to inherit from her father as his surviving issue under New Hampshire intestacy law. The facts:

Donna M. Eng and Rumzi Brian Khabbaz were married in September 1989 and, six years later, had a son together. In April 1997, Mr. Khabbaz was diagnosed with a terminal illness. Subsequently, he began to bank his sperm so that his wife could conceive a child through artificial insemination. He also executed a consent form indicating that the sperm could be used by his wife “to achieve a pregnancy” and that it was his “desire and intent to be legally recognized as the father of the child to the fullest extent allowable by law.” Mr. Khabbaz died on May 23, 1998.

Khabbaz v. Commissioner, Social Security Administration (New Hampshire Supreme Court, August 9, 2007), opinion here.

Calfee v. Cabinet for Health and Family Services and Tammy Aquilian, Child Support, Paternity

Calfee v. Cabinet for Health and Family Services and Tammy Aquilian

Calfee appealed an order denying his request for modification of accrued child support. Calfee’s ex-girlfriend filed an action seeking child support. In support she filed an affidavit admitting that the child could have been another man’s, that Calfee never claimed to be the child’s father, and that the child did not resemble Calfee. In response, Calfee requested a DNA test. However, Calfee could not afford the test. It was rescheduled and again Calfee could not afford the test. Therefore, a default judgment was entered and Calfee was ordered to pay child support. Finally, five years later a DNA test revealed Calfee was not the child’s father. Regardless, the Commonwealth sought to collect the arrearages that had accumulated since the default judgment was entered. The Circuit Court held Calfee was responsible for the arrearages that had accumulated before the default judgment was set aside. The CA remanded and held that the Circuit Court must re-exam the facts and determine whether the mother’s actions amounted to fraud or misrepresentation. If so, Calfee should not be held liable for the arrearages.
CA distinguished the instant case from S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky.App.2005). In S.R.D., a former husband, who waited six years after learning he might not be the child’s father, was estopped from denying paternity and support obligations. In the instant case, however, the child was not born of a marriage. Calfee never held himself out to be the child’s father and there was no legal presumption he was the child’s father. For these reasons Calfee was not estopped from asserting that he was not the child’s father and therefore not obligated to pay support.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates

Christian v. Clemente

Because discussion is circulating that the Court of Appeals may be moved to publish this case, we are digesting it for you.
Christian v. Clemente (unpublished)

Mom appealed trial court's decision that it lacked personal jurisdiction over dad and therefore, could not order child support. Mom and dad had a relationship but were never married. Eventually, dad moved to Pennsylvania. Fifteen years later mom filed a paternity and child support action in Kentucky. Dad submitted to a paternity test, which revealed he was the child’s father. However, he asserted that the court lacked personal jurisdiction because mom failed to file within the statute of limitation set forth in KRS 454.220. Mom argued that several other statutes governed the statute of limitations for paternity actions demanding child support. CA, however, held in favor of dad.
CA opined that KRS § 454.220 applies to child support actions against nonresidents even if there is an underlying paternity action. The CA relied on basic statutory interpretation to arrive at this ruling. The court opined that KRS 454.220 was most specific statute with regards to the present issue. Accordingly, KRS 454.220 controls over all other less specific statutes on the issue. Additionally, the lack of language, in KRS 454.220 or later enacted statutes, indicating otherwise signified the legislature’s intent that KRS 454.220 be controlling, with regards to orders for child support against nonresident parents. Furthermore, the court held the instant case was not distinguishable from Parmelee, 18 S.W.3d 347.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates.

Paternity Law Review Articles

In view of the chaotic state of paternity law across the country, I think the following law review article digests, compiled by Nancy Ver Steegh in her Annual Survey of Periodical Literature published in the Family Law Quarterly, Vol 40, No 4, Winter 2007 is helpful:

Nancy E. Dowd, Fathers and the Supreme Court: Founding Fathers and Nurturing Fathers, 54 EMORY L.J. 1271 (2005). The author examines bias against fathers in parenting matters, critiquing the Supreme Court’s stereotypic view of fatherhood as a status and suggesting that the Court use a relational, nurturing standard for determining a father’s parental rights.

Parentage at Birth: Birthfathers and Social Fatherhood, 14 WM. & MARY BILL RTS. J. 909 (2006). This author recommends revision of the Uniform Parentage Act to include recognition of both birth fathers and social fathers.

Ronald K. Henry, The Innocent Third Party: Victims of Paternity Fraud, 40 FAM. L.Q. 51 (2006). This article examines the issue of paternity fraud with particular attention to the plight of low-income minority men. The author urges use of routine DNA testing.

David D. Meyer, The Constitutionality of Best Interests Parentage, 14 WM. & MARY BILL RTS. J. 857 (2006). This article considers traditional parentage law and the constitutionality of the emerging best interest parentage law. The author concludes that the constitutional limits on state power to define family are justified.

Jane C. Murphy, Legal Images of Fatherhood: Welfare Reform, Child Support Enforcement, and Fatherless Children, 81 NOTRE DAME L. REV, 325 (2005). This article provides a historical perspective on the definition of fatherhood and also discusses fatherhood in the context of biology and economic support. The author evaluates the impact of child support enforcement and welfare reform on fatherhood and offers proposals for reform.

Jana Singer, Marriage, Biology, and Paternity: The Case for Revitalizing the Marital Presumption, 65 MD. L. REV. 246 (2006). The author analyzes use of the marital presumption in paternity cases and concludes that it would be in the best interest of children to revitalize it.

E. Gary Spitko, The Constitutional Function of Biological Paternity: Evidence of the Biological Mother’s Consent to the Biological Father’s Co-Parenting of Her Child, 48 ARIZ. L. REV. 97 (2006). The author recommends that courts determine parental rights based on the amount of parental labor expended.

Revocation of Acknowlegment of Paternity - What's a "Mistake of Fact?"

Here is an interesting new Michigan case courtesy of Jeanne Hannah at Updates In Michigan Family Law.

Michigan Order Allowing Duped Dad Reimbursement For $55,000 In Child Support Reversed

Michigan is struggling with the same paternity challenges as Kentucky. Updates In Michigan Family Law reports:

Challenges to parentage determinations are becoming more common today than ever before. One factor seems to be a focus on “duped dads,” many of whom want to get out of paying child support for a child now found to be unrelated to them, but named as their child or children in a judgment of divorce. Another factor is the ready availability of DNA evidence. Home DNA testing is common and can provide a basis for a motion to set aside a child support order. Of course, home DNA testing doesn’t provide the controls of court-ordered DNA testing by a reputable lab with its control on the production of DNA samples. A question left undecided in a recent Michigan court of appeals case is whether the court had the actual authority to order a DNA test.

The Michigan Court of Appeals, in an unpublished decision on June 5, 2007 held that a duped dad who had paid child support since 1999 was not entitled to set aside the judgment of divorce in order to obtain reimbursement for over $50,000 in child support paid between 1999 and the date he filed his motion to terminate child support on January 20, 2005. Because the mother’s fraud was intrinsic fraud, a court rule and also well-established case law precluded the trial court to grant this ex-husband relief from the 1999 judgment. He had only one year to challenge to the judgment that ordered child support. Public policy, the court rule, and case law limit the time for motions to set aside judgments in order to preserve finality of judgments. The ex-husband did not challenge the child support order/judgment until 2005—after the mother asked for parenting time provisions to be enforced and for an increase in child support.

Because the ex-husband could not be given relief from judgment, the trial court was limited by Michigan law from retroactive modification of the child support order. The modification could only be retroactive to the date that he filed his motion regarding child support. As a result, the court of appeals reversed the trial court’s order that the mother had to repay to the father almost $55,000 in child support that he had paid under the judgment.

The mother argued unsuccessfully on appeal that the equitable parent doctrine should have been applied. Citing Van v Zahorik, 460 Mich 320 (1999) and Killingbeck v Killingbeck, 269 Mich App 132 (2005), the court of appeals stated that this doctrine has never been applied outside of the context of marriage. The child in this case was born several years prior to the parties’ marriage.

Here is the opinion.

Kentucky Supreme Court Schedules Oral Argument for a Second Husband/Bio-dad Case

The Kentucky Supreme Court has stayed a trial in Rhoades v. Ricketts, expedited the briefing schedule in the matter of J.N.R., et al. v. Hon. Joseph O’Reilly, Judge, Jefferson Family Court, 2007-SC-000175-MR, and has scheduled oral arguments September 12, 2007, at 9:00 a.m., at the University of Kentucky College of Law courtroom, 620 Limestone Street, Lexington, Kentucky. This is the same date that Hinshaw #1 oral arguments are scheduled as we posted here yesterday. The Supreme Court granted the extraordinary stay of proceedings below which might have resulted in a determination of paternity to the bio-dad of a child born into an intact marriage. We reported on Rhoades v. Ricketts here. After the Court of Appeals dissolved the stay it initially imposed and remanded the case to the trial court for further proceedings, the Kentucky Supreme Court reinstated the stay. The issue which brought this to the Supreme Court case is whether irreparable injury would result if a paternity decision was rendered that may later be reversed on direct appeal. Presumably the underlying paternity rights of a bio-dad to an infant born during a marriage will be addressed.

Kentucky Supreme Court Sets Oral Argument In Paternity By Estoppel Case

Oral arguments in Hinshaw#1 digested here will be held by the Kentucky Supreme Court Wednesday, September 12, 2007 at 10:00am at the University of Kentucky College of Law Courtroom, 620 S. Limestone Street, Lexington, KY. It remains to be seen whether discretionary review will be sought in Boone v. Ballinger, digested here, how the Supreme Court will reconcile Denzik v. Denzik, posed here, and whether the result will impact the holding in Wheat v. Com. digested here, which is now final, no motion for discretionary review having been made.

Boone v. Ballinger

BOONE V. BALLINGER___S.W.3d___(Ky. App. 2007)
De facto custodian; doctrine of waiver and estoppel; Rebuttable presumption of paternity; Marital property (401k account)
2006-CA-001257
TO BE PUBLISHED: REVERSING AND REMANDING (ABRAMSON)
DATE RENDERED: 5/4/2007

Several months into dissolution proceedings, Kelly learned for the first time that the two youngest children born during his fifteen-year marriage to Melinda were not his biological daughters. Kelly had been a devoted father to the three-year-old and six-year-old girls, performing the majority of the everyday tasks related to their upbringing and essentially serving as their primary parent. Genetic testing revealed that the girls’ biological father was Melinda’s boss, Daniel, with whom Melinda had been having an affair for seven years. Daniel was a friend of the family and the godfather of the older girl. Both Melinda and Daniel acknowledged that when Melinda became pregnant with each girl, they realized that Daniel might be the father, but neither took any steps to learn the truth and they continued to allow Kelly to believe that he was the father of the girls and to act in that role until Melinda instigated divorce proceedings. Confronted with certified DNA results that established that Daniel was the biological father, Kelly sought de facto custodian status, relying on his central parenting role throughout the girls’ lives. The trial court concluded, after an evidentiary hearing, that Kelly was indeed the de facto custodian and further that Daniel and Melinda were estopped from denying that Kelly was the legal father of the girls.

De Facto Custodian:

On appeal, Melinda and Daniel challenged the trial court's application of KRS 403.270 and its resulting conclusion that Kelly is the girls' de facto custodian. They contend this statute was unavailable to Kelly since he was not the sole caregiver for the two girls but rather provided for them “alongside the natural parent (Melinda).” Following Consalvi v. Cawood, CA agreed with Daniel and Melinda, holding that “it is not enough that a person provide for a child alongside the parent” in order to qualify as a de facto custodian, but rather he must “literally stand in the place of the natural parent.” 63 S.W.3d 195 (Ky. App. 2001)

Waiver of Superior Custody Rights:

Though Kelly did not qualify for de facto custodian status under Kentucky law, CA held that Daniel’s conduct may preclude him from displacing Kelly altogether in the girls’ lives. Even after the adoption of the de facto custodian statute, Kentucky courts continue to recognize the applicability of the doctrine of waiver in a child custody dispute. Accordingly, CA held that on remand the trial judge should address whether Daniel has waived the typically superior custody rights of a biological father. The waiver of a parent's superior custodial right has previously been recognized in two distinct scenarios. CA held that this case presented a third factual scenario: waiver of a biological father's custodial right as against the husband to whom the mother was married when the child was born and who has been led to believe that he is the child's father. Daniel maintained that waiver cannot apply in this case because waiver necessarily entails a knowing and voluntary surrender of a known right. He claims no waiver could occur until he knew the girls were actually his biological daughters. CA disagreed, because Daniel was aware of the possibility at the time each child was born.

Emphasizing that the girls were always in their mother's custody, Daniel also sought to forestall application of the waiver doctrine by citing B.F. v. T.D., 194 S.W.3d 310 (Ky. 2006) for the proposition that waiver can only apply if the children are not in either parent's physical custody. B.F. involved a same-sex couple, one of whom adopted a child who was then raised by both of them. There was no marital dissolution involved when the couple discontinued their relationship, so the non-adopting partner tried to establish her de facto custodian status. She was unsuccessful and the trial court held that she had no standing to pursue custody. CA and the Kentucky Supreme Court affirmed, citing KRS 403.260(4) (repealed in 1980) which limits standing to initiate a custody proceeding to the parents and those who have physical custody of the child. However, CA held that B.F. did not preclude application of waiver in this case. Unlike the domestic partner in B.F who had no standing to initiate a custody proceeding and thus place the issue before a court, Melinda placed the custody issue before the trial court when she filed for dissolution; she and Kelly were parties to the proceeding as the girls' parents and Daniel, deemed a “necessary party” by the trial court, was allowed to intervene. At that juncture, all three adults were properly before the court and the issue of waiver was relevant to the standard required to gain custody. The factors to be considered when determining whether a parent has waived his or her superior custody right include: the length of time the child has been away from the parent, circumstances of separation, age of the child when care was assumed by the non-parent, time elapsed before the parent sought to claim the child, and frequency and nature of contact, if any, between the parent and the child during the non-parent's custody.

Doctrine of Paternity by Estoppel:

CA held that the doctrine of paternity by estoppel adopted in S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky. App. 2005), would not apply so as to estop Daniel and Melinda from seeking a paternity determination. The trial court relied on S.R.D. v. T.L.B. in estopping Daniel and Melinda from challenging Kelly's legal father status. However, that case involved estopping a husband from severing a parental relationship with a daughter born during his marriage who was eventually determined not to be his biological child. Although that case had the same “misled husband” scenario as this case, estoppel was employed to preserve the relationship (both emotional and financial) between the child and the only father she had ever known, not to sever the biological father's rights to establish his genetic connection to the child. Moreover, if a biological father is to be precluded from establishing any legal relationship to his child born during the mother’s marriage to another man, or if he is to be limited in his options, CA stated that such preclusion or limitation must be established by the legislature. The Kentucky General Assembly has not adopted either Uniform Act or any other statutory mechanism curtailing the legal rights of a biological father where his child is born during the mother’s marriage to another man.

CA recognized that an inconsistency exists between Consalvi and the doctrine of paternity by estoppel that was adopted in S.R.D. The focus of “paternity by estoppel” is on the child and the parent-child relationship that has developed. On the other hand, Consalvi holds that a man who provides care and financial support alongside the mother cannot acquire de facto custodian status so as to maintain a father-child bond after the parties' divorce. This result, of course, completely ignores the parent-child relationship that may have developed, a relationship which S.R.D. considered paramount Therein lies the irony: if a misled husband decides to “run” in order to avoid any parental support obligations, he would be prohibited from doing so by S.R.D. and would remain financially bound to the child, but should he desire to “stay” and maintain a relationship with the child, Consalvi, literally applied, says that he cannot be the de facto custodian and is not entitled to custody or visitation. Fortunately, a man who was led to believe he is the father of a child born during his marriage may be able to maintain a relationship with the child in those instances where the biological father has waived his superior right to custody.

If the trial court, on remand, finds that Daniel waived a biological parent's superior right to custody, the result would be to place Kelly, a non-parent who would otherwise have no equivalent right, on an equal footing with Melinda and Daniel in matters concerning custody and visitation. Conversely, such a finding, though conveying standing on Kelly to seek custody and visitation, does not necessarily result in Daniel’s loss of his right to seek the same. Once a non-biological parent is deemed to have standing to seek custody vis-à-vis the biological parents, the ultimate decision by the trial court as to who will be awarded physical custody of a child is dependent upon the best interests of that child.

Division of 401(k) account and exempt KTRS account:

CA held that the trial court erred in deeming it marital property without considering Kentucky Revised Statute (KRS) 403.190(4). By application of KRS 161.700(2), Kelly's entire Kentucky Teachers’ Retirement Services account is exempt. The amount to which Melinda's 401(k) account may be exempted is governed by the limitation found in KRS 403.190(4), i.e. her account is exempt up to an amount that does not exceed the value of Kelly's KTRS account.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Kentucky Court Of Appeals To Hear Arguments On Paternity By Estoppel April 4, 2007

On April 4 at 1:30pm, The Kentucky Court of Appeals will hear oral arguments in Louisville in an expedited appeal, Boone v. Ballinger. The court's calendar describes the case:

TWO ADVANCED APPEALS ARISING FROM DIVORCE ACTION BETWEEN KELLY AND MELINDA. BOONE AND MELINDA CHALLENGE BY JUDGMENT FINDING KELLY TO BE A DE FACTO CUSTODIAN AND FATHER OF TWO CHILDREN BORN DURING THE MARRIAGE BASED ON A THEORY OF PATERNITY BY ESTOPPEL ALTHOUGH BOONE IS THEIR BIOLOGICAL FATHER. MELINDA ALSO CHALLENGES THE DIVISION OF HER 401K.

Thanks to Michael Stevens of the Kentucky Law Review for the heads up. This is one I'd love to hear; too bad there won't be a podcast. If anyone would like to share the arguments, I would be glad to post the summary. Hear Mike's plea to webcast here.

KBA President Responds to Courier-Journal Paternity Articles

Robert C. Ewald, President, Kentucky Bar Association, writes in a letter to the editor:

Andrew Wolfson’s excellent article about the thorny questions of paternal rights (‘Ky cases pose question: What defines a father?’ March 18) well demonstrates the extraordinarily difficult issues our judges face when resolving disputes that have such an enormous effect on the litigants involved.

In a time when it seems to be accepted sport to condemn judges for their ‘activist’ decisions, perhaps the article will help those would-be critics understand how difficult some judicial determinations are and how decent and honorable are the men and women who must decide these complex cases.

Amen.

We posted about and linked to the front page news here and here. For an exhaustive discussion of the issues, click on the Paternity category on the left sidebar.

Discretionary Review Granted In Hinshaw #1

The Kentucky Supreme Court granted discretionary review of Hinshaw v. Hinshaw on March 14, 2007. The case was digested here and was one of the cases included within Andrew Wolfson's Courier-Journal front page story yesterday, online here.

More on: Does Avowal of Fatherhood Impose an 'Equitable Paternity' - Indiana

The Indiana Law Blog has an exhaustive post updating us on Indiana law in this area after some excellent hand-picked excerpts from Andrew Wolfson's article in yesterday's Courier-Journal. Check it out.

Courier-Journal Companion Piece On Uniform Parentage Act

In a companion Courier-Journal article to Ky. cases post question: What defines a father, Andrew Wolfson writes today Some states handle paternity with Uniform Parentage Act .
A link to the Uniform Parentage Act and the legislative fact sheet can be found at the post here. My sentiments expressed in that post: For years we can allow our families to go to lawyers who will have to give them "I don't know" answers to many questions and work our way though the courts dealing with this on a slow case-by-case basis, or we can get down to work and ask our legislature to act. We have a year until the next legislative session. Come hear Professor Mary M. Beck, University of Missouri, Columbia Law School April 19, 2007 present "Father's Registries and Why Every State Needs One" and "Putative Fathers Or Pop Up Pops." Brochure and registration info here. How timely.

Wolfson Lays Out Paternity Law Chaos

Andrew Wolfson in today's Courier-Journal reports on the husband/paternity fraud/bio-dad cases working their way though the Kentucky Courts. The front page story is here. His report is well researched, well written and accurate, as usual. Even if I had not read it while enjoying my coffee this morning, I would have known something significant had been published when I checked my email because of the Typepad comments to related prior posts waiting for approval. The Courier-Journal publishes "story chat" beneath its online story. Hope they are ready for a birrage.
We have reported on Denzik here and digested it here and discussed its progeny here. Hinshaw was digested here. We previously posted about the G.J.R - J.N.R. - J.S.R. case (now rightfully exposed by Wolfson as the Rhoades/Ricketts case) winding its way through the system here.

Wheat v. Com.

UPDATE: Final as of April 17, 2007
Wheat v. Com., --S.W.3d-- (Ky. App. 2007), 2007 WL 490946 (Ky. App) designated to be published.

Issue: Whether there is an exception to the rule that past child support obligations, once accrued, may not be modified. The Court held yes, child support payments are voidable in the event of fraud or misrepresentation.

Facts:

In 1985 Pruitt, the child’s mother, filed a paternity action alleging Wheat was the biological father of her child. Wheat acknowledged paternity and agreed to pay reasonable child support. An order was entered establishing paternity and Wheat was ordered to pay child support.
Wheat never made any child support payments. In 1997, DNA testing, pursuant to court order, conclusively proved that Wheat was not the father. Wheat then filed a CR 60.02 motion to set aside the paternity judgment, alleging misrepresentation on the mother’s part in inducing him to sign the agreed judgment. He alleged that the mother swore to him that he was the father and then admitted years later that he was not. In 2001 the district court entered an order finding Wheat was not the biological father and set aside the 1985 order and all prospective child support obligations. The issue of arrearages was reserved for further proceedings. Neither party appealed.
In 2004 an order was entered establishing the amount of arrearages to be $13,387.41. In 2005 the local child support office filed a motion to hold Wheat in contempt for failure to pay arrearages. Wheat filed a CR 60.02 motion to set aside the 2004 order for arrearages. The family court denied the CR 60.02 motion and found Wheat in contempt. Wheat appealed.

Analysis:

First, the Court found that Wheat was not equitably estopped from asserting that he is not the legal father. Unlike the case of S.R.D v. T.L.B., Formerly T.L.D., 174 S.W.3d 502 (Ky. App. 2005), there was no presumption of paternity since Wheat was never married to the mother, Wheat did not establish a bond with the child, Wheat did not act as the “psychological father,” and Wheat had no relationship with the child at all. Therefore, there is no equitable reason to require Wheat to pay child support. Moreover, the district court had ruled that Wheat was not the legal father in 2001, and no party appealed.
Second, the Court held that Denzik v. Denzik, 197 S.W.3d 108 (Ky. 2006), created an exception to the rule that past child support obligations, once accrued, may not be modified. In the event of fraud or misrepresentation, child support payments can be voided. The following factors must be shown to establish fraud or misrepresentation: 1) a material misrepresentation, 2) which is false, 3) known to be false or made recklessly, 4) made with inducement to be acted upon, and 5) acted in reliance thereon and causing injury.
The Court noted that all factors may be satisfied in the instant case, but remanded the case back to the trial court for an evidentiary hearing and findings of fact. The Court stated that if the trial court finds that the mother was guilty of fraud or misrepresentation, Wheat’s motion should be granted and both the arrearage and the order of contempt should be set aside. If no fraud is found, then Wheat is legally responsible for the arrearages.
Digest by Sarah Jost Nielsen, Diana L. Skaggs + Associates, www.LouisvilleDivorce.com.

DLJ also posted about this case here.

A Few Comments About 16th Annual Domestic Relations Update: Is A Legislative Solution In Order On The Vexing Paternity Issues?

A few lawyers in Kentucky may know as much about family law as retired Chief Judge Richard A. Revell, but none knows more. What is so fascinating about this field of law is the constant movement within it reflecting our changes in society. The seminar at the Louisville Bar Association last Friday was spectacular not only because of Judge Revell’s breadth of knowledge, but because of the great questions the audience peppered us with. There were a number of questions particularly about the DNA/paternity/father/child support/custody quagmire we find ourselves presented with in Kentucky. I felt like I was at a Supreme Court oral argument. The bottom line on this direction of the law is “we don’t know.”

Perhaps now is the time to begin studying the Uniform Parentage Act, which can be found here. According to the legislative fact sheet found here it has been endorsed by:
ABA Family Law Section
ABA Section of Individual Rights and Responsibilities
ABA Steering Committee on Unmet Legal Needs of Children
National Child Support Enforcement Association
National Association of Public Health Registrars
American Association of Matrimonial Attorneys

For years we can allow our families to go to lawyers who will have to give them "I don't know" answers to many questions and work our way though the courts dealing with this on a slow case-by-case basis, or we can get down to work and ask our legislature to act.

Denzik: The Floodgates Are Opening

Denzik v. Denzik, about which we reported here and digested here, permitted a husband to recoup child support payments many years later, in a civil action for damages, when he was found not to be the biological father of the child born during the marriage. Where will it end? Who knows, but now the Court of Appeals, in a case not yet final but designated to be published, has addressed whether a father who acknowledged paternity has recourse to avoid contempt for non-payment and for recoupment. In short, it was remanded to determine whether there was fraud or misrepresentation, in which case accrued child support may be avoided. Prediction: This is the tip of the iceberg.

Wheat v. Com., Cabinet for Health and Family Services__S.W.3d__, 2007 WL 490946 Ky.App.,2007. February 16, 2007
John Wheat appeals from a Findings of Fact, Conclusions of Law and Order of the Barren Circuit Court, Family Court Division, holding him in contempt of court for failing to pay a child support arrearage. The court imposed a sentence of 180 days in jail, to be suspended on the condition that Wheat begin paying the arrearage. Wheat argues that DNA testing proved that he is not the biological father of the child in question, and that as such the family court erred in ordering him to pay any child support. Pursuant to Denzik v. Denzik, 197 S.W.3d 108 (Ky.2006), issued after the trial court made its ruling, we reverse and remand the matter to the Barren Family Court for further findings of fact on one issue, as set out herein....

If a man is not the biological father of a child and cannot be held on equitable grounds to be the legal father, we acknowledge that there is a strong argument, based on simple fairness, that he should not be required to pay child support. There is, however, another issue in this case, legal rather than equitable, which we must consider. In fact, the trial court in its order did not evaluate this matter from an equitable standpoint at all. It rather indicated a belief that it was bound by a line of cases such as Clay v. Clay, 707 S.W.2d 352 (Ky.App.1986); Stewart v. Raikes, 627 S.W.2d 586 (Ky.1982) and Whitby v. Whitby, 306 Ky. 355, 208 S.W.2d 68 (1948), overruled in part on other grounds, Knight v. Knight, 341 S.W.2d 59 (Ky.1960), which held that past child support obligations, once accrued, may not be modified. In the language of the Whitby court, quoted by the court in Stewart:
"We perceive that no distinction can be made between a judgment based upon a claim for alimony or maintenance and a judgment based upon any other legal right. After the judgment is entered, although it may be subject to modification at a subsequent date, it is binding and final until modified; and any payments which may have become due previous to such modification constitute a fixed and liquidated debt in favor of the judgment creditor against the judgment debtor." Whitby, 208 S.W.2d at 69; Stewart, 627 S.W.2d at 588.

Thus, if there is no exception to this rule, Wheat has no recourse, regardless of the equities of the matter. However, after the trial court issued its order in this case, the Kentucky Supreme Court rendered its opinion in Denzik v. Denzik, supra, holding that a father could recover back from his former wife child support payments previously made to her because the support obligation arose from her fraudulent and years-long claim that he was the child's biological father. Though the facts in Denzik differ somewhat from those at bar-the plaintiff in Denzik did not file a motion to recover past child support payments in his divorce case, but rather in a separate civil suit for fraud-we believe Denzik supports Wheat's contention that past child support payments are voidable in some circumstances.

Denzik did not overrule Clay and the line of cases relied on by the trial court. Neither did it carve out an exception to the rule set out in these cases for every situation where a subsequent paternity test proves that the man paying the child support is not the biological father. However, we believe it did recognize an exception to that rule in the event of fraud or misrepresentation. The Supreme Court in Denzik stated:

"This ruling does not in any way conflict with our precedents on erroneous amounts paid in child support, because error is not fraud.
Cases involving excess child support payments made by judicial error have determined that recoupment or restitution of the excess payments is inappropriate unless there exists an accumulation of benefits not consumed for support. See, e.g., Clay v. Clay, 707 S.W.2d 352 (Ky.App.1986).... However, in the case of fraud and misrepresentation of expenses to the spouse, the court has ordered restitution.... In this case, it was determined that somebody other than the father of the child was paying child support thereby giving this case a different character than the others.
In short, the facts of this case can only be repeated with fraud, not with a floodgate of paternity tests." Denzik, 197 S.W .3d at 112,113.

Thus, since Denzik, if the mother was guilty of fraud or misrepresentation, even child support obligations that have already accrued may be modified. The Commonwealth appears to recognize this and asserts in its brief that, “[t]here is simply no evidence of the unmarried woman deliberately concealing material facts in this case.” This is accurate only in the limited sense that the trial court did not hear any testimony. The parties advised the court that the facts were not in dispute. However, neither the court

More On Paternity Fraud: Two TN Bills Introduced

A set of new bills in the Tennessee Legislature would allow men to stop paying child support if a paternity test shows they are not the father. Tennessee House Bill HB1523 and SB1949, would amend T.C.A. section 36-5-101. If the bills become law, men who could prove they are not the biological father would be exempt from paying child support.

This issue has come to be known as Paternity Fraud. In many states even if a man can prove that he is not the biological father, he still must pay child support. The issue is exploding in the news and on the web. Tennessee Divorce and Family Law.

What would happen under these facts: Parents married 17 years, four children ages 15, 13, 11, and 2. Husband in all respects raises the children as his own. Once he's divorced he is happy to abandon the children. DNA proves husband is not the biological father. No other man is willing to step up to the plate to nurture or support the children. Maybe mom had artificial donor insemination after failed attempts to conceive and didn't tell her husband. Maybe they both had a gazillion affairs during the marriage. As our courts and legislatures consider these issues, we must keep the interests of children paramount. Piecemeal correcting wrongs to some may do more long term damage than good if we aren't careful.

Family Law Expert Tells ABC News How Courts Might Address Questions of Child Custody, Paternity, Inheritance and Liability

From ABC News, February 10, 2007: Anna Nicole Smith Left Tangled Legal Web.

ABC News' Law and Justice Unit asked prominent family law professor Jeff Atkinson at DePaul University College of Law for a quick overview of the web of legal issues that follow Anna Nicole Smith's death.

Atkinson, who also works with the American Bar Association and the National Conference of Commissioners Uniform States Law, offered his thoughts on how the courts now will handle the legal battles over the fortune of Smith's deceased husband, J. Howard Marshall, and the custody of Smith's infant daughter, Dannielynn. Multiple people claim they fathered Dannielynn, including Smith's former boyfriend, Larry Birkhead, and her companion, Howard K. Stern.

The questions Prof. Atkinson addresses include:
Would a will signed by Anna Nicole decide custody of Dannielynn?
Was Anna Nicole married at the time of her death?
What law decides who will have custody of Dannielynn?
What court has jurisdiction to decide the custody and paternity of Dannielynn?
What happens to the dispute over the estate of J. Howard Marshall?
What happens to the legal claims against TrimSpa and Anna Nicole?
As he is quick to note, however, all the facts are not yet known and the law in many instances will turn on the facts.

Hinshaw #1:Equitable Estoppel To Deny Paternity

Hinshaw v. Hinshaw, __ S.W.3d __ (Ky. App. 2006), 2006 WL 2519221 (Ky. App.)
This is Hinshaw #1, motion for discretionary review pending.
Issues and Holdings:

1) Whether the former husband could have custody rights to former wife’s child even though he was not the child’s biological father. The Court held yes, the former husband had such rights.
2) Whether the doctrine of equitable estoppel could be applied to prevent the former wife from arguing that the former husband was not the father. The Court held yes, the doctrine applied since the former husband relied on the former wife’s misrepresentations of his paternity to his detriment.
3) Whether the record supported the award of attorney fees to the former husband. The Court held yes, the record supported the award.

Facts:

The parties were married in December 1988. One child was born in the marriage in June 1999. The former husband was present in the delivery room and cut the umbilical cord, and the birth certificate lists the former husband as the father. The former wife filed for divorce in January 2003 and stated in her petition that the parties were the parents of the child. Later, she amended her petition and alleged that the former husband was not the father and requested a court-ordered DNA test to prove it.

Paternity Test: Florida 'Father' May Cite Law To Cry Fraud

Parker v. Parker, from the Supreme Court of Florida was decided February 1, 2007. The parties married in 1996, the child was born in 1998, a 2001 divorce decree incorporated an agreement for child support and the husband did not have a paternity test until 2003. The wife's misrepresentation of paternity was held to be intrinsic fraud and therefore a husband must seek relief from a judgment within one year.

We recognize that the former husband in this case may feel victimized. However, Theresa Glennon argues cogently that:
[w]hile some individuals are innocent victims of deceptive partners, adults are aware of the high incidence of infidelity and only they, not the children, are able to act to ensure that the biological ties they may deem essential are present. . . . The law should discourage adults from treating children they have parented as expendable when their adult relationships fall apart. It is the adults who can and should absorb the pain of betrayal rather than inflict additional betrayal on the involved children.
[Mary J. Anderlik, Disestablishment Suits: What Hath Science Wrought?, 4 J. Center for Families, Child. & Cts. 3, 18 (2003)] (quoting Theresa Glennon, Expendable Children: Defining Belonging in a Broken World, 8 Duke J. Gender L. & Pol’y 269, 275 (2001)).

The Miami Herald reported the story yesterday, Paternity test: 'Father' may cite law to cry fraud.

In delving into the often-vicious world of divorce and paternity cases, the high court failed to discuss Florida's ''paternity fraud'' law that the Legislature passed last year, when male lawmakers inveighed against deceptive women, and female legislators fretted about callous men abandoning children.

The new law gives men the right to avoid child-support payments if they gain ''newly discovered evidence'' that the child isn't theirs. The law requires the man to file a court petition 90 days after getting the paternity test.

Whether it will apply to Parker's long-standing case or other old paternity cases in the courts is unclear, said his Miami lawyer, Scott A. Lazar, who is considering filing a challenge under the new law. Lazar said he's sure the law will help blunt what would be a bad result from Thursday's court ruling.

''If there was not this new law, the effect of this decision would make paternity an issue in every divorce case,'' Lazar said. ``The advice you would have to give your client is to get a paternity test now, otherwise, he couldn't do anything after a year if the child isn't his.''

Query: If the new statute wasn't argued on appeal, how does this obligor expect relief in his case?

Thanks to Howard Basham at How Appealing for posting the link to the case and to Marcia Oddi at Indiana Law Blog for letting me know it was available online. Stan Billingsly at LawReader also reports on the recent unpublished opinions that address the issue in Kentucky from an equitable estoppel argument. However, now that we have the Kentucky Supreme Court decision in Denzek (see post here and digest here) damages for fraud can be obtained very late in a child's life in Kentucky.

Uniform Parentage Act Would Address Some Vexing Paternity Litigation

Whether a state has adopted the Uniform Parentage Act answers the question posed in Is Bio-Dad a Legal Stranger to Child Born During a Marriage?, according to this comment posted by Jeanne Hannah of Updates In Michigan Family Law:

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

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 Parentage Issues: Here We Go Again!

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.

A Simple Swab of the Mouth Is All It Takes to Prove Paternity

I received a brochure this week from Genetic Technologies, Inc. It provides genetic testing services in accordance with the Uniform Parentage Act, according to its website. It offers a self-testing kit ($50.00) for anonymous in-home testing. I thought it was interesting that the website states New York residents are prohibited from ordering paternity tests directly. It was also fascinating to learn that forensic specimens to establish paternity can be obtained during surgery, from amniotic fluid, fetal tissue, and post-mortem blood.

The elephant is in the room. We must talk about it.

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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