Divorce Law Journal

Who's Your Daddy? Check Out Updates In Michigan Family Law

Jeanne Hannah at Updates In Michigan Family Law has written more on this topic than anyone in the blawgospehere:
Parentage Issues: Here We Go Again!
Why We Need a Federal Putative Father Registry
Acknowledgments of Parentage: Can They Protect Parent-Child Relationships?
Barnes v Jeudevine: How to Deprive a Child of a Father
Can a putative father protect his parental rights by filing a Notice of Intent?
How can a man protect his paternity rights if the mother wants to place the child for adoption?
Another Look at Paternity Issues: This time Boyfriend has Standing to Sue
What Rights Does an Unwed Biological Father Have When a Mother Wants to Give up a Child for Adoption?
What are the Rights of a Biological Father if the Mother is Married to Another Man?
These posts are also collected on Jeanne's website.

Like Michigan, Kentucky has not adopted the Uniform Parentage Act.

Who's Your Daddy? Is Denzik Relevant To The Debate?

The civil case of Denzik v. Denzik, 197 S.W.3d 108 (Ky., 2006) digested here permitted damages to recoup child support payments by a husband who turned out not to be the bio-dad. As it was a civil action for damages, the facts were not all present for the court to deal with the multiple levels of concern in the thread Who's Your Daddy? Justice Lambert’s dissent focused on the policy involving the presumption of legitimacy of a child born in wedlock, which he believed to be of the utmost importance. He argued that the relationship between a parent and child should not have a price tag placed upon it and that some secrets should remain secret. Moreover, he feared that the majority’s opinion would open the floodgates of litigation on the paternity of children in Kentucky and would provide incentive for the destruction of parent/child relationships.

The parties were married from 1981 to May of 1984, as well as from December 1984 to March 1990. In June of 1987, the former wife, now Blazar, gave birth to a daughter. Upon their divorce in 1990, the husband, Denzik, was ordered to pay child support for the one child. Blazar was awarded custody subject to regular visitation by Denzik. In September 2000, Blazar told Denzik that the child was the product of an affair with a former boyfriend. Blazar requested that the former boyfriend undergo a DNA paternity test, which revealed that the child was the former boyfriend’s, not Denzik’s. Denzik then obtained a termination of child support obligations and filed a civil action, requesting damages for the fraudulent misrepresentation of the paternity of the child.
At trial the jury found Blazar guilty of fraud and awarded Denzik damages, totaling $54,720.26. The damages represented the child support payments that Denzik had paid for the last five years. The Court of Appeals reversed. The Supreme Court granted discretionary review.
The Supreme Court held that since it found that fraudulent misrepresentation occurred and that the fraud was ongoing, the conduct of Blazar came within the applicable statute of limitations, set out in KRS 413.130(3). The Court noted that Denzik only sought to recover the last five years of his support payments.
The Court also held that the evidence was sufficient to support the jury’s verdict and award for fraudulent misrepresentation. The Court pointed to the fact that 1) Denzik had received a call, during the pregnancy, accusing Blazar of an affair and Blazar affirmatively denied the affair, 2) Blazar should have known that it was more likely that Denzik was not the father due to her having had intercourse more often in the affair than with her husband near the time of conception, and 3) the concealment of the affair afforded Blazar financial gain in the divorce by her receiving child support. Moreover, the Court believed the jury was in the best position to determine the credibility of Blazar’s claim of surprise discovery that the child had a different father than Denzik. The Court held that it was error for the Court of Appeals to substitute its judgment in place of the jury’s.
The Court reversed the decision of the Court of Appeals and reinstated the jury verdict.

Hinshaw v. Hinshaw is digested here. by KyCases. A motion for discretionary review is pending. In that Court of Appeals opinion, designated to be published, the husband's presumption of paternity was acknowledged, the child had been led by the mother to believe that the husband was his father, and the best interest of the child was considered. Another important factor is that the putative father was put on notice and declined to assert paternal rights or responsibilities.

UPDATE: Comments:
From Jeanne Hannah: Fascinating case, Diana. Thank you for posting this review. I am often asked whether a man can recover damages in a case of fraudulent misrepresentation as to parentage. My research has never uncovered a case permitting the defrauded ex-husband damages. This could be the start of a new trend.

Who's Your Daddy: Michael Stevens Chimes In Debate

Michael Stevens of Kentucky Law Blog comments:Family law is tough because the choices hard, the emotions high, and the consequences grave for all concerned.

First, the mother presumably knows or would have reason to suspect the paternity of the child is not conclusive just because of the presumption of conception during wedlock.

Second, allowing that presumption to continue to thrust obligations and responsibilities on the non-biological dad also allows for the creation of an emotional attachment that goes both ways with the child and the non-biological father.

Third, the Kentucky decisions thus far have their blinders on by simply analyzing it as the dealings with mom and non-biological dad such that the presumption exists until rebutted, and if there is a paternity action by the mom against the non-biological dad or during the divorce then the resultant decree constitutes res judicata on these two people as to the parentage. And, it is not uncommon for the non-biological dad to acquiesce or not challenge the determination. A creation of legal rights and responsibilities upon which the child has no input.

Fourth, this happy little deception then can go assunder when the truth is outed and the non-biological father has been the victim of a fraud, and the biological dad has been the victim of a deceptive silence.

Now, legally speaking the focus has always been on the relationship between the mom and non-bio dad as to support and custody issues as they relate to the three. Since the paternity action or divorce action may constitute a determination of the custody and support issues relative to mom and non-bio dad, it is not necessarily a legal 'termination' of the biological dad's status as the bio-dad as may be the case in an adoption. Since bio-dad was never aware of his child, it can't be said he is estopped or has otherwise waived his parental status over that child, and thus any actions by mom (either one-sided or collusively with the non-bio dad) are not binding on bio-dad (eg., a wrongful death action?).

This outing of the real paternity is a devastating situation for all concerned, but as Todd Bolus suggests should a DNA test be de rigeur in all legal actions which possess legal determinations of paternity (eg., divorce, custody, paternity, etc actions)? The upside is a medically conclusive determination greater than the law's presumption of paternity. The downside is the outing of an issue which can affect multiple families, parents, step-siblings, etc.

However, the facts are what they are with few divorces having no emotional trauma for those concerned.

Although Kentucky's courts have recognized that these divorce and paternity proceedings have more legal baggage than what we usually encounter, they have not ventured into that area yet. For example, non-bio dad and mom may allow the fiction to function, but sooner or later the child has rights and is entitled to know his or her 'real' father. Furthermore, any decision by the putative parents to 'off' the bio-dad should not be binding on the bio dad. What if the child dies and there is a wrongful death action? There can only be one father, and which one is it? And what if the child has step-siblings through the bio-dad? A tangled web we weave once we start to deceive.

And by "off", I do not mean a fatality but simply removing him legally, emotionally, geographically, and knowingly.

Hard facts make hard decisions, but they do not get any less hard as time goes by, they simply get ignored.

Editor's note: The notion that a child can only have two parents is subject to debate: Legal Rights Of Three Parents Over One Child Recognized By Ontario Court of Appeals

Comments:Who's Your Daddy?

Please note: I am updating this post as comments are received, so check back for updates. This is turning out to be a very interesting discussion.

There are many thoughtful comments to the Who's Your Daddy? post that I would like to highlight, so they are not overlooked. Would anyone like to weigh in on the side of the presumption of paternity in favor of a husband? Or should it depend on whether there is a bio-dad who is willing to step up to the plate financially and emotionally? What role should "best interests of the child" play?

From Bill Ross: Paternity cases are an everyday occurence throughout the United States, so what makes this story so unique? There are a couple of reasons why this story is ripe. First, it shows that law makers are finally taking notice of a growing problem - paternal fraud (only after a great deal of lobbying though). Second, it demonstrates that illegitimacy no longer carries a societal stigma (which is way overdue, for the child is innocent).

More and more women are having affairs, which can and does often result in the birth of an illegitimate child. In most cases, the affair is usually the result of a weakening marriage versus uncontrolled sexual impulses. It's been proven over and over again that the majority of such pregnancies result from lengthy affairs, whereas a child born from a "one night stand" represents a miniscule proportion. However, when a wife's fraud is detected they usually claim the latter, and the husband being unaware of the affair is usually unaware of the marital problems; so he unknowingly accepts the explanation (the lesser of two evils). Correspondingly, most women who engage in affairs, which have a child from the affair, recognize the loopholes in the law. These women know they can rely on the "presumption of paternity" in many states, which gives fathers the unenviable task of fighting long and costly legal battles. Remember, deception is intrinsic to an affair.

Rawes' article raises many questions: Why don't women divorce their husbands if they're not happy? Why don't we make DNA tests mandatory at the hospitals? Why have so many legislators been slow to change the laws? Why don't the wives consider everyone involved? Why don't the women consider the biological fathers?

The last question is the most interesting. Too long society has assumed the biological father prefers to disappear, which is not always the case. Mothers who commit paternity fraud against their husbands are also commiting fraud against the child's biological father.

Who's Your Daddy?

Duped Dads Fight Back, the Time Magazine report, is available online.

Advocates for these so-called duped dads say such men should be treated as victims of fraud and liken the need for paternity-disestablishment amendments to truth-in-lending laws. They point to many an egregious case in which the law's marital presumption of fatherhood has ended up enslaving a divorced dad, like the Michigan man who proved he had not sired his son but was still ordered to send child-support payments directly to the boy's biological father, who was granted custody after the mom moved out of his place and left the kid there. Increasingly, policymakers across the country are turning a sympathetic ear to such complaints. Florida last year joined Georgia and Ohio in allowing a man to walk away from any financial obligations regardless of how many years he may have been acting as a minor's father if he discovers he was deceived into parenthood. Fathers' rights groups in Colorado, Illinois and West Virginia are pushing for similar legislation that would remove or extend existing time limits for challenging paternity.

Spearheading the legislative movement is Carnell Smith, a Georgia engineer who found out shortly after he broke up with his girlfriend that she was pregnant and spent the next 11 years believing he was the girl's father. Then, in 2000, after his visitation time had been cut back around the same time that a court order nearly doubled his monthly child-support payments, he took a test that showed he was not the biological parent. Three years and about $100,000 in child support and legal fees later, Smith, 46, managed to disentangle himself from any responsibilities for the girl, and says he walked out of court "a broke but free man." He successfully lobbied his home state to pass its paternity-fraud law in 2002 and now runs a DNA-testing company. Its slogan: "If the genes don't fit, you must acquit!"

But justice for a disillusioned dad can clash with the best interests of a child raised to think of him as a father. "These cases get cast as the duped dad vs. the scheming wife," says Temple University law professor Theresa Glennon, who has examined the changing legal landscape. "This is really about men deserting children they have been parenting." She points out that severing paternal ties could devastate a child depending on the length and quality of his relationship with the nonbiological father.

Legal Rights Of Three Parents Over One Child Recognized By Ontario Court of Appeals

The Court of Appeals in Ontario ruled that three parents can have parental rights over one child . Between A.A., Appellant and B.B. and C.C., Appellees. The background of the case is reported in Jurist.

A Canadian child can legally have three parents - two mothers and a father. The case before the court involved a lesbian couple, together since 1990, one of whom was the biological mother of the five-year-old child, and a biological father who was listed on the child's birth certificate. All three individuals were active in the child's life and the women were not simply willing to adopt the boy because it would mean the father would lose his legal status as a parent. Ontario Justice Marc Rosenberg said depriving all three from legal parental roles would be "contrary to (the child's) best interests" and stressed the importance of giving the non-biological mother authority to make decisions for the child in the event of the biological mother's death.

Reuters has more.
Hmm. The non-bio mom could not adopt in Kentucky if she wanted, and the bio dad on the birth certificate would be on the hook even if he had no interest in the child.

Is Father Responsible For Expenses Of Mother's Pregnancy In Kentucky?

Stan Billingsly at LawReader requested that we post the law on this fact situation: an unmarried pregnant woman wants to know if the father of her unborn child is responsible for the expenses of her pregnancy and how does she obtain reimbursement if he refuses to pay? KRS 406.011 obligates the father to pay the reasonable expenses of the mother’s pregnancy, whether or not the child is born alive, and for the education, necessary support, and funeral expenses of the child, to the same extent as the father of a child born in wedlock.
Paternity may be determined upon the complaint of the mother, putative father, child, or the person or agency substantially contributing to the support of the child as well as by the county attorney or the Cabinet for Health and Family Services. KRS 406.021.
The action may be commenced within 18 years after the birth, miscarriage or stillbirth of a child. Child support awards are not retroactive to birth if the complaint is taken four years or more from the date of birth. KRS 403.031.

Adoption News Story Much Meatier Than Headline Suggests

"Kentucky looks to speed up adoptions", is the Courier-Journal front page headline reporting on the Blue Ribbon Panel on Adoption meeting in Frankfort yesterday. The online edition link to today's article was not yet available at the early hour of this posting. What an informative and productive meeting it appears to have been. Kentucky State Auditor Crit Luallen, a potential 2007 gubernatorial candidate, presented the results of an audit showing that children removed from homes because of abuse and neglect are waiting for adoption on average three years, longer than permitted by federal guidelines. The year long study makes no conclusions as to whether children are removed too hastily from homes, the issue that caused the panel to be formed in the first place. Mark D. Birdwhistle, chair of the panel stated that there are "pockets of problems" and acknowledged the need to have consistent standards across the state.
Many thoughtful and much needed ideas are being floated to this influential panel and discussed which is very welcome news. For example, yesterday auditor Luallen made recommendations for speeding up the three year wait for the 2000 children currently available for adoption, including creation of a birth father registry. We have reported on such a registry here and announced some new scholarly articles on these issues here.
Chief Judge, Jefferson Circuit Court, Family Division Stephen George and Family Court Judge Patricia Walker FitzGerald also presented to the panel the need for Guardians Ad Litem to be fairly paid and the need for attorneys to be appointed to represent parents at the initial temporary removal hearing. Judge George also said removing the confidentiality requirements of current law in dependency cases would make the family courts more accountable.
UPDATE: Here's the link to the Courier-Journal article by Deborah Yetter.

Denzik v. Denzik, 197 S.W.3d 108 (Ky., 2006)

Denzik v. Denzik, 197 S.W.3d 108 (Ky., 2006)

Issues and Holdings:
1) Whether the complaint, alleging fraud, was sufficient to give the defendant adequate notice of the claims against her. The Court held that it was sufficient.
2) Whether the statute of limitations barred the former husband’s claim. The Court found that it did not, since the fraud was ongoing.
3) Whether the evidence was sufficient to establish that the former wife intentionally deceived the former husband as to the paternity of the child born during their marriage. The Court held that the evidence was sufficient.

Facts:
The parties were married from 1981 to May of 1984, as well as from December 1984 to March 1990. In June of 1987, the former wife, now Blazar, gave birth to a daughter. Upon their divorce in 1990, the husband, Denzik, was ordered to pay child support for the one child. Blazar was awarded custody subject to regular visitation by Denzik. In September 2000, Blazar told Denzik that the child was the product of an affair with a former boyfriend. Blazar requested that the former boyfriend undergo a DNA paternity test, which revealed that the child was the former boyfriend’s, not Denzik’s. Denzik then obtained a termination of child support obligations and filed a civil action, requesting damages for the fraudulent misrepresentation of the paternity of the child.
At trial the jury found Blazar guilty of fraud and awarded Denzik damages, totaling $54,720.26. The damages represented the child support payments that Denzik had paid for the last five years. The Court of Appeals reversed the jury verdict. The Supreme Court granted discretionary review.

Analysis:
First, the Court held that the complaint was sufficient, under CR 9.02, to give Blazar adequate notice of the claims against her. The testimony at trial demonstrated that Blazar understood the nature of the claims.
Second, the Court held that since it found that fraudulent misrepresentation occurred in the instant case and that the fraud was ongoing, the conduct of Blazar came within the applicable statute of limitations, set out in KRS 413.130(3). The Court noted that Denzik only sought to recover the last five years of his support payments.
Third, the Court held that the evidence was sufficient to support the jury’s verdict and award for fraudulent misrepresentation. The Court pointed to the fact that 1) Denzik had received a call, during the pregnancy, accusing Blazar of an affair and Blazar affirmatively denied the affair, 2) Blazar should have known that it was more likely that Denzik was not the father due to her having had intercourse more often in the affair than with her husband near the time of conception, and 3) the concealment of the affair afforded Blazar financial gain in the divorce by her receiving child support. Moreover, the Court believed the jury was in the best position to determine the credibility of Blazar’s claim of surprise discovery that the child had a different father than Denzik. The Court held that it was error for the Court of Appeals to substitute its judgment in place of the jury’s.
The Court reversed the decision of the Court of Appeals and reinstated the jury verdict.

Justice Lambert’s dissent focused on the policy involving the presumption of legitimacy of a child born in wedlock, which he believed to be of the utmost importance. He argued that the relationship between a parent and child should not have a price tag placed upon it and that some secrets should remain secret. Moreover, he feared that the majority’s opinion would open the floodgates of litigation on the paternity of children in Kentucky and would provide incentive for the destruction of parent/child relationships.

Justice Johnstone’s dissent agreed with Justice Lambert’s opinion and endorsed the rationale of the Court of Appeals in reversing the jury verdict. Justice Johnstone did not believe that Denzik produced any evidence of intentional fraud on behalf of Blazar

The Relationship of Biology to Legal Fatherhood

The Relationship of Biology to Legal Fatherhood: Two New Cases Show Courts Struggling to Find a Coherent Approach, As Non-Biological Fathers Fight for Their Rights to Children
Decided the same week as the Kentucky Court Appeals case of Hinshaw v. Hinsaw was a Tennessee decision, In Re: T.K.Y., which held for the bio-dad rather than the husband. Joanna Grossman, professor of law at Hofstra University digests both cases and points out a big factual difference: the bio-dad in Tennessee wanted to be named the legal father, while in Hinshaw the alleged bio-dad never stepped up to the plate. The Hinshaw case is not final; a motion for discretionary review by the Kentucky Supreme Court is pending.

Joint Custody To Husband Who Was Not Biological Father Affirmed

The Kentucky Court of Appeals affirmed today, in a published opinion, Hinshaw v. Hinshaw, an award of joint custody to a father who was not told until after the divorce petition was filed that he was not the father of his son. Because our office is involved with this case, that's all we will say at this time.
UPDATE: Family Law Prof Blog digests the case.

Can Boy Born to Married Parents Compel Bio Mom to Disclose Bio Dad After Legal Dad Ruled Out

Florida Divorce Law Blog posts on a pending lawsuit, Can Boy Born to Married Parents Compel Bio Mom to Disclose Bio Dad After Legal Dad Ruled Out? "After his parents’ divorce, the boy resided primarily with his legal father - the then-husband of the boy’s biological mother.(In many states, including Florida, the man married to a birth mother is presumed to be the legal father of a baby.) But, apparently, a recent DNA test proved that the boy’s legal father is not his biological father. And now the boy wants his biological mother to disclose who his biological father is, supposedly out of concerns over his family health history. And now a Michigan court must decide whether the boy has a right to compel the disclosure.
Read more in this Detroit News article: Mom, teen square off in paternity case.

Bio Dads and Non Bio Dads; the Nature or Nurture Thread Continues

"The Michigan supreme court reversed the court of appeals’ decision in Barnes v Jeudevine, in an opinion released on July 26, 2006. Docket No. 129606. As a result, Barnes, who filed an action seeking a determination of paternity of a child conceived while the child’s mother was married to another man—a child whom he co-parented for 4 ½ years, and a child who believes that Barnes is his father—is denied the opportunity to establish legal parentage. The majority opinion: The court was split 4-3 in its decision. The majority, in an opinion authored by Justice Weaver, held that a default judgment of divorce stating that it appears that “no children were born of this marriage and none are expected” is not clear and convincing evidence that the child was not an issue of the marriage. Thus, the marital presumption applies and Barnes is deprived of standing to sue to determine his legal parentage of the child. " From Updates in Michigan Family Law, which also provides significant criticism and commentary, which includes, "Under the Uniform Parentage Act, a father such as Barnes would be permitted to rebut the presumption of legitimacy because he, as well as the ex-husband, would be a “presumed father.” The UPA would move Michigan along in parentage actions in the direction that California has done judicially, recognizing the rights of fathers to establish parentage where they’ve formed a bonded, parent-child relationship with their child, despite the mother’s marital status. See, for example, a case in which the facts are not terribly dissimilar to Barnes: Brian C. v. Ginger K. (2000) 77 Cal. App.4th 1198 [ 92 Cal.Rptr.2d 294]. Court of Appeal, Fourth District, Division 3. "
These dual dad cases can bring heartbreaking consequences for children and their nurturers as Sandra G. Ragland reported in our initial post on this thread, Nature or Nurture, Should Genetic Test Results Be Admissible to Rebut the Presumption of Paternity? While the Uniform Parentage Act is not perfect, our legislatures MUST wrestle with these issues.
UPDATE: The Family Law Prof Blog posted on this, too, and links to a video interview with one of the dads.
UPDATE: The Updates in Michigan Family Law posts a follow-up discussion today. Unlike Michigan, when an acknowledgment of patenity is signed the parents become joinet legal custodians.

Nature Or Nurture, The Cases Keep Coming, Support Rather Than Custody This Time

An interesting decision from New Jersey, digested by Charles Abut on the ABA Family Law listserve:
J.R. v. L.R., ___ N.J. Super. ___ (App. Div.); New Jersey App. Div., July 17, 2006
"On the biological father's appeal from an order requiring he and his daughter's psychological father each to pay child support, held :
(1) the biological father was properly ordered to submit to genetic testing, even though he was unaware of his 12-year-old daughter until shortly before the action commenced and even though he wanted nothing to do with her;
(2) equitable estoppel did not make the psychological father solely responsible for the daughter's support, absent interference by the psychological father with support from the biological father; and
(3)although the biological father had the primary support obligation, it was proper for him to share the obligation with the psychological father because the biological father could not pay the entire amount of support. "
The Family Law Prof Blog also reports on this case.

Non bio dad has standing to seek visitation

A South Carolina case last month held that a man had standing to pursue visitation, even though not biologically related to child. Mom was estopped from contesting standing because of multiple year relationship she permitted to develop between man and child. Middleton v. Johnson.

Nature or Nurture:Mississippi requires genetic testing for paternity

In a case this month from the Mississippi Supreme Court, Downs v. Downs,Download CO34307.pdf
it was decided that gentic testing was required when paternity of a child born to a divorcing couple is questioned. However, the decision may be based on the wording of a MS statute, and the court may still consider best interests after the paternity results are known.

More About Nature, Cheating, and DNA

The Art of Divorce Blog has a great posting about this:
A new study by a dating website claims that nearly half of all spouses cheat. Although this number may be skewed on the high side given the demographics of those who use dating sites, there are probably a few who cheat that claimed not to do so. Although the studies vary, there are consistently reports over [...]

Nature or Nurture: More Comments

From Paul C. O'Bryan:
The Ct. of Appeals, in S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky. App., 2005) discusses the theory of paternity by estoppel. I think the "best" chance (absent a new statute) is to argue that if a court can force a father from denying (when he is not the biological father) to get out of child support why can’t the mother be estopped from denying paternity (or “legal” paternity) of the only father the child has known for 8 years.

The court set out the factors of the doctrine of equitable estoppel: “(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.”

1) Mom’s conduct concealed the fact
2) Mom was aware he was not the biological father
3) Neither Junior nor Dad knew the truth
4) Mom knew that Dad would act upon this lie
5) Both Junior and Dad relied on the lie to their detriment (both emotional and financial)

Thanks, Paul

Nature or Nurture Thread; Keep Those Comments Coming!

Sarah Almy, a Louisville family law attorney, in response to our "Nature or Nurture" posting on genetic testing, posted the following comment:

" I strongly agree with your position. A statutory amendment would be a helpful tool for attorneys facing the situation of a vindictive mom such as your hypothetical Mary who would be willing to traumatize her own child. Recently discovered your blog and it is terrific."

We are very much interested in comments and discussion. Our hope is that as this blog grows, it can be a great melding of ideas and impetus for change when needed. The dynamic potential of a blog is awesome, but readers have to make it happen! Thanks, Sarah, for leading the way for input from family lawyers in Kentucky.

DNA Testing- Cheap

Stephen C. Knight of Nashville posted on his blog, Knight on Family Law, a source for cheap DNA testing, linking to an article in the Memphis Daily News and a testing company promising results in 48 hours, Test Express, Inc. In the "nature or nurture" discussion, it seems that nature is much cheaper and quicker to come by.

Nature or Nurture: Should Genetic Test Results Be Admissible To Rebut The Presumption Of Paternity?

John and Mary were a typical couple. Married for twelve years, they had an eight-year-old son, John, Jr. John had been ecstatic when Mary became pregnant and enthusiastically participated in the prenatal preparations. He attended Lamaze classes with his wife and converted his den into a nursery. He coached Mary in the delivery room and cut the umbilical cord. John's name appeared on the birth certificate as the father of the boy, who was named John, Jr. The father sleepily delivered his share of middle-of-the-night bottles and developed his diaper-changing skills. As the boy got older, Dad taught him to ride a bicycle, bait a hook and throw a baseball overhand. John coached peewee baseball teams and taught Sunday School classes. Father and son shared a deep emotional bond. John knew the marriage wasn't perfect, but the couple had never been separated and he never suspected she had been unfaithful. He was stunned when Mary announced she was leaving and was filing for divorce. He was even more surprised by her parting shot: "And by the way, you're not Junior's father!" John was about to discover that under Kentucky law, he could be relegated to the sidelines of his son's life and designated a" legal stranger" to the child he had nurtured since birth.

The presumption that a woman's husband is the father of children born into a marriage is one of the

S.R.D. v. T.L.B., 174 SW3d 502 (Ky. App., 2005)

S.R.D. v. T.L.B., 174 SW3d 502 (Ky. App., 2005)
Husband who held himself out to be child's father for 9 years
was equitably estopped to deny paternity and child support
obligation when at the time of the divorce decree there was and
uncontested assertion that the marriage produced three
children.

Paternity Fraud

An April 10, 2006 National Law Journal article on paternity fraud has been reprinted at www.law.com. This is the flip side of the dual paternity issue where non-biological fathers have been required to pay child support. It is important to distinguish the rights/duties of husbands who are non-bio dads who want to raise and support children born during a marriage. The Uniform Parentage Act (not adopted in KY) was well studied, but there may be some glitches.

Dual Paternity

Utah has decided an important dual paternity case, link below. The law in Kentucky is unsettled where a husband/non-biological father wants to continue a relationship with and support of a child born during the marriage. Although a case is pending in the Kentucky Court of Appeals, until a KY case is published the Utah decision lends support to the argument that unnecessary attacks on paternity should be discouraged.

http://www.utcourts.gov/opinions/appopin/pearson033006.pdf