J.A.S. v. Bushelman
2011 Ky. LEXIS 76
| Ky. | 2011Background
- J.A.S. is mother of N.R.S.; Real Party In Interest C.H.E. filed paternity action in Kenton Family Court on Oct. 14, 2008.
- DNA test showed 99.9429% probability C.H.E. is N.R.S.'s father; Appellant admitted a romantic affair during conception window.
- Appellant sought writ of prohibition to bar paternity adjudication, arguing lack of subject matter jurisdiction under KRS Chapter 406.
- Trial court, applying J.N.R. v. O’Reilly, ruled that the marital relationship ceased more than ten months before birth, creating a presumed father under KRS 406.011.
- Court of Appeals affirmed, leading to Kentucky Supreme Court review on whether KRS 406.011 defines ‘child born out of wedlock’ and governs jurisdiction.
- Majority ultimately holds KRS 406.011 codifies presumption of paternity, while jurisdiction rests on KRS 406.051, 406.021, and 406.180; C.H.E. has standing as putative father.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 406.011 define child born out of wedlock for jurisdiction? | Appellant: 406.011 defines the term and limits jurisdiction. | Abramson majority: 406.011 codifies presumption, not jurisdictional boundary. | 406.011 does not control jurisdiction; it codifies presumption of paternity. |
| Where is subject matter jurisdiction for paternity actions? | Appellant: jurisdiction limited by 406.011 to births out of wedlock. | Court: jurisdiction vested under 406.051 and 406.180; actions under 406.021. | Jurisdiction exists under 406.051/406.180; action falls within Chapter 406. |
| Does C.H.E. have standing to file as putative father under 406.021? | Appellant: putative father status not applicable; C.H.E. cannot file. | Court: 406.021 grants standing to putative fathers; DNA probability supports status. | C.H.E. has standing as putative father under 406.021. |
| Can DNA evidence overcome the presumption of paternity? | Appellant: presumption rests on traditional rules; DNA is insufficient to overcome. | Court: DNA testing now can rebut presumption when probative and reliable. | DNA evidence may overcome the presumption; probative DNA results are admissible. |
| What is the correct interpretation of ‘child born out of wedlock’ in Kentucky law? | Appellant: aligns with dismissing non-marital paternity claims under J.N.R. approach. | Court: term is interchangeable with illegitimate/bastard; focus is presumption, not exclusive definition. | ‘Child born out of wedlock’ is interchangeable with illegitimate; not a jurisdictional bar. |
Key Cases Cited
- J.N.R. v. O’Reilly, 264 S.W.3d 587 (Ky. 2008) (case central to jurisdictional debate; multiple opinions; reliance questioned)
- Goss v. Froman, 12 S.W. 389 (Ky. 1889) (presumption of paternity strong but rebuttable)
- Tackett v. Tackett, 508 S.W.2d 790 (Ky. 1974) (presumption of paternity may be overcome by clear proof)
- Simmons v. Simmons, 479 S.W.2d 585 (Ky. 1972) (presumption of paternity is strong but rebuttable)
- Bartlett v. Commonwealth ex rel. Calloway, 705 S.W.2d 470 (Ky. 1986) (recognizes DNA as tool to rebut presumption)
- Ratliff v. Ratliff, 183 S.W.2d 949 (Ky. 1944) (standard of proof to rebut presumption: beyond reasonable doubt)
- Wilson v. Wilson, 193 S.W.2d 7 (Ky. 1917) (early articulation of opportunity-for-access concept in presumption)
- Moore v. Moore, 190 S.W.2d 689 (Ky. 1945) (gestation variability informs ten-month window)