KY. SUPREME COURT RULING MAKES SIGNIFICANT CHANGE IN PATERNITY LAW – overrules 2008 Louisville case

The Kentucky Supreme Court in J.A.S. vs. C.H.E.  on May 19, 2011 overruled prior rulings which denied paternity consideration for the real father of a child if the mother was married.

 This issue was last reviewed by the Ky. Supreme Court in 2008 in in J.N.R. v. O’Reilly, 264 S .W.3d 587 (Ky. 2008.   In that case the court denied consideration of the alleged real father of a child to be considered since the mother was married at the time of conception of the alleged illegitimate child.

 The decision in J.A.S. vs.  C.H.E. in the Kenton Circuit Court discussed the Kentucky Paternity statutes and finds that only a presumption of paternity is created by statute but that such presumption may be overcome by adequate proof, and the alleged natural father can pursue paternity rights.

 This case makes a significant change in Kentucky paternity law.

 SUPREME COURT OF KENTUCKY

J .A.S . APPELLANT

ON APPEAL FROM COURT OF APPEALS

V. CASE NO. 2009-CA-001378-OA

KENTON CIRCUIT COURT NO. 08-CI-03307

HON. LISA O . BUSHELMAN, JUDGE, APPELLEE

KENTON CIRCUIT COURT

AND

2010-SC-000045-MR

RENDERED : MAY 19, 2011  TO BE PUBLISHED

V.

C .H .E . REAL PARTY IN INTEREST

OPINION OF THE COURT BY JUSTICE VENTERS AFFIRMING

It is to be regretted that questions like these should ever arise in

the courts of this commonwealth . Kentucky’s matrons are famed

for their high sense of virtue and exemplary conduct; and it is to be

regretted that the conduct of Mrs. Minnie R . Froman was so radical

a departure from this fair fame as to impel us to declare her son,

Soloman White Froman, illegitimate .

Thus spoke Kentucky’s highest court in 1889, in the case of Goss v. Froman,

89 Ky. 318, 12 S .W . 387, 388 (1889), declaring that a child conceived by

Minnie R . Froman during her marriage was illegitimate because it was not the

child of her husband .

Upon those grounds, she moved to dismiss the paternity action, relying exclusively upon the lead opinion in J.N.R. v. O’Reilly, 264 S .W.3d 587 (Ky. 2008), which, under facts substantially similar to those before us now, posited the view that KRS Chapter 406 deprived Kentucky courts of subject matter jurisdiction to adjudicate a paternity issue involving a married woman whose child was conceived and born amid no cessation of her marital relationship . 1

J.N.R. resulted in separate opinions by five of the seven justices on this

Court. We refer to the opinion of Justice Minton (now Chief Justice Minton) as

the “lead” opinion simply because it is first in line of the five opinions . While a

majority of four justices concurred in the result reached by the lead opinion,

they arrived at that result by at least two very different routes of legal analysis.

None of the J.N.R. opinions garnered the support of more than two justices .

Specifically, only one justice (Lambert) concurred with the rationale expressed

in Justice Minton’s lead opinion . Ware v. Commonwealth, 47 S .W .3d 333, 335

(Ky. 2001) (quoting 20 Am. Jur. 2d Courts § 159 (1995)), reminds us that “[a]

minority opinion has no binding precedential value . . . [and] if a majority of the

court agreed on a decision in the case, but less than a majority could agree on

the reasoning for that decision, the decision has no stare decisis effect.

While the persuasive influence of any of the J.N.R. opinions remains worthy of consideration, none should be cited as a holding of this Court. To the extent that J.N.R. is perceived or deemed to have binding precedential authority, it is overruled.

we conclude that the trial court had subject matter jurisdiction over this matter pursuant to KRS 406 .051 and KRS 406 .180 because the action is brought under KRS. Chapter 406 to determine paternity of a child whose biological parents are allegedly not married to each other, and that C.H .E . has standing to assert his claim because he is a putative father authorized under KRS 406 .021 to file a complaint to have paternity

determined .

We do not agree that KRS 406 .011 is the jurisdictional turnstile that limits access to court for paternity claims, or that it establishes the definition of “child born out of

wedlock .” The statute does exactly what its heading portends : it abrogates the

common law rule that a man has no legal obligation to support his illegitimate

child and it codifies the traditional presumption of paternity.

KRS 406.011 does not bar the right of an eligible party to have paternity legally determined.

(THE KENTUCKY PATERNITY STATUTE) … does not bar the claim

that a man other than her husband may actually be the father. It simply

provides that one challenging the legitimacy of a child born to a married

mother within ten months after the cessation of her “marital relationship”

cannot prevail without proof sufficient to overcome the presumption of

paternity.

KRS 406.011 does not bar the right of an eligible party to have paternity legally determined.

Appellant’s interpretation of the statute as a jurisdictional barrier would

significantly alter the historic presumption of paternity by making it

irrebuttable . Under that view, whenever the presumption arose its effect would

be conclusive . It would not be a “presumption of paternity” ; it would be a

“conclusion of paternity.”

We close the discussion of this point by noting again that an opinion of

this Court based upon Appellant’s construction of KRS 406 .011 would render

irrebuttable the traditional presumption of paternity and would excuse a man

from his paternal obligation simply because his lover remained married to her

husband . It is incompatible with the express statement of KRS 406 .011 that

the father of the child is obligated to support it, and it represents such a

radical departure from traditional Kentucky jurisprudence established in

numerous decisions prior to J.N.R. that we respectfully decline the opportunity

to adopt it.

The presumption begins with the simple proposition that a child .born to

a married woman is legitimate ; that is, it presumes that the husband is the

father. It is long established and well settled that the presumption of paternity

is rebuttable .

“The rule is that where there is opportunity for access [sexual intercourse

of the wife with the husband] it will be presumed that a child born in wedlock

is legitimate, and the presumption is so great it cannot be overcome except by

evidence of the strongest character, and so convincing as to remove the question

of a reasonable doubt.” Ratliff v. Ratliff, 298 Ky. 715, 183 S .W.2d 949, 952

(1944) (emphasis added) .

in Bartlett, 705 S .W.2d at 472-473, we recognized that HLA blood testing, 14 along with other attendant circumstances, could supply the evidence “necessary to overcome

the presumption of legitimacy and the requirement of proof beyond a

reasonable doubt,” noting further that “[w]hen the advances of science serve to

assist in the discovery of the truth, the law must accommodate them .”

Scientific advances made since Bartlett enable even more accurate testing of

genetic markers through DNA analysis.

OPINION BY JUSTICE VENTERS, Abramson, Noble and Schroder, JJ., concur. Minton, C .J ., dissents by separate opinion . Cunningham, J ., dissents by separate opinion in which Scott, J ., joins .

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