By LawReader Senior Editor Stan Billingsley May 1, 2008
For full text of this case go to: 2007-SC-000175-MR.pdf
LawReader Synopsis. Subscribers to LawReader have access to a synopis of every Ky. Sup. Ct. Decision and every Ct. of Appeals Decisions within 24 hours of their release. Our synopsis of this case reads:
“By the plain language of Chapter 406, that chapter only applies to births out of wedlock. And it defines births out of wedlock as including births to married womenwhere evidence shows that the husband and wife’s “marital relationship” ceased ten months before the child’s birth.’° In the instant case, we have no allegation that Wife and Husband’s marital relationship had ceased ten months before Child’s birth
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”
“The Court of Appeals denied relief to a wife and her husband who petitioned to prohibit the family court from adjudicating the paternity of a man who claimed to be the biological father of a baby born to the wife.
On appeal, the principal issue is whether Kentucky’s courts have jurisdiction to decide a man’s claim of paternity of a child born to a woman who, at the time of the child’s birth, was married to another man.
We hold that Kentucky’s paternity statutes do not grant subject-matter jurisdiction to our courts to determine paternity claims where, as here, there is no evidence or allegation that the marital relationship ceased ten months before the child’s birth.
Therefore, we conclude that the family court was attempting to proceed without jurisdiction and that the Court of Appeals erred when it failed to grant the writ of prohibition .
Subject-matter jurisdiction is defined as “(j)urisdiction over the nature of the case and the type of relief sought[,] the extent to which a court can rule on the conduct of persons or the status of things .”
From the outset, Wife and Husband have disputed the family court’s subject-matter jurisdiction to accept a petition in which the alleged biological father of a child, born to a woman who is married to another man, seeks to establish paternity, custody, support, and visitation of the child .
Subject-matter jurisdiction over paternity proceedings for all of our trial courts is governed by Kentucky Revised Statutes (KRS) Chapter 406, also known as the Uniform Act on Paternity .6 KRS 406.051(1) provides the district court with subject-matter jurisdiction over “an action brought under this chapter” to establish support for “children born out of wedlock.” KRS 406.051(2) states that the circuit court and district court share concurrent jurisdiction over custody and visitation issues “in cases where paternity is established as set forth in this chapter.” And KRS 23A.100(2)(b) confers the general jurisdiction of the circuit court on a family court division of the circuit court for proceedings under the Uniform Act on Paternity.
KRS 406.021 does not allow for paternity to be established because KRS Chapter 406 limits its applicability to cases of children “born out of wedlock” and establishes a definition of “born out of wedlock” that the facts of this case do not satisfy. KRS 406.180 (governing applicability of Chapter 406) states, in pertinent part, that “[t]his chapter applies to all cases of birth out of wedlock: (1) [w]here birth occurs within this state[.]” And KRS 406.011 defines who is included and who is not included in the term “born out of wedlock:”
A child born during lawful wedlock, or within ten (10) months thereafter, is presumed to be the child of the husband and wife. However, a child born out of wedlock includes a child born to a married woman by a man other than her husband where evidence shows that the marital relationship between the husband and wife ceased ten (10) months prior to the birth of the child .
By the plain language of Chapter 406, that chapter only applies to births out of wedlock. And it defines births out of wedlock as including births to married women where evidence shows that the husband and wife’s “marital relationship” ceased ten months before the child’s birth.’° In the instant case, we have no allegation that Wife and Husband’s marital relationship had ceased ten months before Child’s birth
So Child does not meet the statutory definition of a child born out of wedlock, and Chapter 406 does not grant the family court subject-matter jurisdiction or give J .G.R. standing to seek a paternity determination under Chapter 406.11
The term “putative father” is not defined by the statute, but it is defined by BACK’S LAW DICTIONARY (8th ed. 2004) as “[t]he alleged biological father of a child born out of wedlock.”
For the foregoing reasons, we reverse the decision of the Court of Appeals and remand the case to the Court of Appeals for issuance of a writ of prohibition consistent with this opinion .
All sitting . Lambent, CJ, concurs. Cunningham, J ., concurs in result only by separate opinion in which Scott, J ., joins. Scott, J ., concurs in result only by separate opinion in which Cunningham, J ., joins. Abramson, J ., dissents by separate opinion in which Schroder, J., joins. Noble, J., dissents by separate opinion”
To read dissents go to:: 2007-SC-000175-MR.pdf
COUNSEL FOR APPELLANTS:
Charles E . Ricketts, Jr. Ricketts & Platt, PLLC Ridgeway Building 4055 Shelbyville Road Louisville, KY 40207-3106
Louis I . Waterman Fore, Miller & Schwartz 200 South Fifth Street First Trust Centre, Suite 700 North Louisville, KY 40202
COUNSEL FOR APPELLEE JOSEPH W. O’REILLY:
Honorable Joseph W. O’Reilly Jefferson Family Court, Division 7 Judicial Center 700 West Jefferson Street Louisville, KY 40202
COUNSEL FOR APPELLEE J.G .R., REAL PARTY IN INTEREST:
Troy D. DeMuth John H. Helmers, Jr. Helmers, DeMuth & Walton, PLC 429 W. Muhammad Ali Blvd . 200 Republic Bldg . Louisville, KY 40202
ARTICLE BY TIME MAGAZINE: May 1, 2008
For nearly two years, James Rhoades, a university librarian in Tallahassee, has been fighting to establish in law what science and fact already have shown beyond any doubt:
He is the biological father of the boy dubbed J.A.R. He’s got DNA tests to prove it, and videos and loads of pictures of him with the boy. In the photos too are the boy’s mother, J.N.R., whom Rhoades met while taking an online graduate course. She was — and still is — married to another man, who was stationed at a Pensacola Air Force base during their affair in 2005. And that’s the problem.