J.N.R. v. O'Reilly

J.S.R., Appellants, J.N.R. Joseph O’REILLY, Judge,

Honorable Family Court; J.G.R.,

Jefferson Party Interest, Appellees.

Real 2007-SC-000175-MR.

No. Kentucky.

Supreme Court

April

Rehearing Denied Oct. Ricketts, Jr., E. Ricketts &

Charles Fore, Platt, PLLC, Waterman, I. Louis Schwartz, Louisville, KY, Counsel Miller & for Appellants. Joseph O’Reilly, adju-

Honorable W. J.G.R. been lawfully Jefferson because had not Louisville, Family Court, KY, Division to and paternity dicated be his father of Appellee, Joseph O’Reilly. Counsel for W. because not Child Child was born out of since wedlock Wife was married to J.S.R. DeMuth, Troy Helmers, Jr., D. John H. (Husband) when was born Child and at the Helmers, PLC, Walton, DeMuth & Louis- petition filed. time the was Wife further ville, KY, J.G.R., Appellee, Counsel vitality asserted continued Party Real in Interest. presumption that a child born to a married presumed woman is to be the child her Opinion by of the Court Justice argued presump- husband. She that the MINTON. by tion could not be “a stranger rebutted The Appeals Court of denied to a relief marriage.” family to The re- court wife and her husband who petitioned petition. fused to dismiss J.G.R.’s family adjudicat- prohibit the court from and then sought Wife Husband a writ ing of a paternity man who claimed to Appeals prohibit from the Court of the biological baby father of a born to court family proceeding from on J.G.R.’s the wife. appeal, principal On issue is Appeals The claims.1 Court of denied the Kentucky’s jurisdic- whether courts have writ, and holding that Husband failed Wife tion to decide a man’s claim paternity injury irreparable to show and lack of who, aof to a woman adequate remedy by The appeal. birth, time the child’s was married to further that Appeals only stated “the deci- Kentucky’s another man. hold that We [family] pertaining sion made court subject- do paternity grant statutes not petition go it will for- J.G.R.’s is jurisdiction matter to our deter- courts to ward on the docket” and noted where, here, mine claims family any rulings court had not made allegation there is no evidence that the adjudicating any claims. marital ceased ten months be- Therefore, fore the child’s we con- birth. II. ANALYSIS. family clude that the court attempting proceed jurisdiction without and A. Appeals Applied Court of the Court of Appeals erred when it failed Wrong Standard Writ grant prohibition. the writ of Issue. Prohibition Appeals The Court of denied the I. FACTS. prohibition upon writ based Wife and Custody J.G.R. filed a Petition for and irreparable inju Husband’s failure to show court, Support family alleging ry remedy by lack of adequate appeal. and DNA tests him to biolog- confirmed be the If had alleged the Wife Husband (Child), ical father of J.A.R a three-month- family acting court was erroneous baby boy, mother, old who lived with his ly jurisdiction, within its a showing (Wife). J.N.R. irreparable injury lack of adequate petition, Wife moved to dismiss the ar- remedy appeal have been re would guing that lacked standing bring J.G.R. quired for the writ to issue.2 But recent family juris- court had no that a showing case law has made clear (1) custody diction to determine Child lack of irreparable injury adequate concerning requested holiday Husband had and Wife also writ dered mediation visitation prohibition forbidding court subject appeal. of this not ordering holiday regarding mediation Appeals visitation with Child. Court of Maride, (Ky. Hoskins relief, granted request for and the Court 2004). Appeals’ regard decision to court-or- family court’s sub- disputed the required for issu- band have remedy appeal accept prohibition petition trial ject-matter ance of a writ of when the jurisdiction.3 A acting outside its of a alleged biological in which the supervisory with control child, vested is married to born to woman who grant prohibition a writ of when the should man, paternity, to seeks establish another acting jurisdiction lower court is outside its of custody, and visitation the support, remedy through appli- and no an “there is child. Despite an cation to intermediate court.” to look to our statutes see must We the arguments Wife and Husband’s granted trial courts have been our whether jurisdiction the family court lacked to hear jurisdiction like subject-matter over a case case, Appeals the Court of the writ denied our explore do not whether this one. We on and grounds the erroneous of Wife subject-matter jurisdic- conferring statutes inju- to show irreparable Husband’s failure public policy, reflect tion effectuate sound ry adequate remedy appeal. and lack of testing, of DNA or the modern realities Appeals analyze Court of failed the of ancient le- recognize disappearance family jurisdiction the whether court had being born gal disabilities associated petition. and hear decide J.G.R.’s do not address out of And we wedlock. constitutionality of the statutes as writ- the Family Subject-Matter B. Court Lacked Although parties the have debated ten. to Hear Jurisdiction Case. an unmarried whether personal jurisdiction not Since is protection rights or process equal due issue, family the focus whether here, seeks J.G.R. seek the relief J.G.R. subject-matter jurisdiction court had over uneonstitutionality of argued has not the Subject-matter jurisdiction this case. is as written nor the statutes “[jjurisdiction defined as over the nature of Attorney Kentucky’s General served type sought[,] and the of relief the case any challenge constitutionality of stat- rule on the extent court can are left examine the words ute.5 So we persons conduct of or the status of outset, and Hus- our statutes to see whether the things.”4 From Wife entered, shall, ("A judgment prohibition granted 3. Id. be the state before is writ upon (1) showing copy petition, the lower court is of the and be served with proceeding heard, proceed is or about to outside to be shall be entitled jurisdiction remedy its and there is no alleged or is un- ordinance franchise through application to intermediate constitutional, an an Attorney General of the court; (2) acting or that the is or lower court copy state be served with shall also erroneously, although about act within petition heard. and be entitled to be jurisdiction, adequate its there exists (2) appeal any Kentucky In to the Court of great remedy appeal in- or otherwise Appeals Supreme or the federal justice irreparable injury will result if the appellate any forum which in- courts petition granted.”) is not validity a stat- volves constitutional shall, ute, Attorney General before Dictionary (8th ed.2004). 4. Black’s Law brief, filing appellant’s be served with paper, copy pleading, or other states, part, pertinent 5. KRS 418.075 that: appeal in the documents which initiate declaratory sought, per- all When relief specify appellate This notice shall forum. parties who have or sons shall be made challenged and the nature statute any be affected claim interest which would alleged declaration, constitutional defect. and no declaration shall Civil Procedure See Rules of also rights persons parties not prejudice the (CR) ("When constitutionality of 24.03 proceeding. pub- Assembly affecting the General any va- act proceeding which involves the statute, any lidity Attorney lic interest is drawn into of a General adjudi- court had to hear and chapter”; an action “under this and KRS paternity petition. cate J.N.R.’s 406.021 does allow for to be Chapter established because 406 lim- No Subject-Matter C. Over Jurisdiction its applicability its to cases of children This Chapter Case Under KRS JJJ6. out “born of wedlock” and establishes a Subject-matter jurisdiction definition of “born out wedlock” paterni- over facts of ty satisfy. for all this case do not proceedings of our trial courts (governing applicability Chapter governed by Kentucky Revised Statutes 406) (KRS) states, pertinent part, that “[t]his also known as the chapter applies to all of birth out Uniform Act on cases of Paternity.6 KRS 406.051(1) (l)[w]here provides wedlock: birth occurs within the district court this subject-matter And KRS 406.011 defines jurisdiction state[.]” over “an action brought who is and who is not included in chapter” under this to included establish term out of support for the “born wedlock:” “children born out of wedlock.” 406.051(2) KRS states the circuit wedlock, A child born lawful or court and (10) district court share concurrent thereafter, pre- within ten is months custody over is- visitation sumed to be the child the husband “in sues However, cases where is estab- and wife. a child born out of lished as chapter.” set forth And a wedlock includes a child born to mar- 23A.100(2)(b) KRS general ju- confers the ried woman a other than her man risdiction of circuit the court on a husband where evidence shows that the court division of the pro- circuit court for marital relationship between the hus- ceedings (10) Uniform Act on Pater- band and ten wife ceased months nity. to birth of child. prior

Despite the fact that KRS 406.021 states Assembly We note that the General paternity complaint may that a be filed chose to a of an enact narrow definition father,”7 “putative a term not defined in out-of-wedlock birth that differs distinc- 406, Chapter tively the instant case not of an proposed is from the definition action, "[tjhere copy (Ky.1990), shall stating movant serve a while pleading, paper raising or motion other first statutory state which an means General.”). challenge upon Attorney illegitimate legitimatize a father can child born out of wedlock without the direct and ("This chapter may 6. KRS cited mother", 6-7, cooperation at active id. Paternity.”). Uniform Act on we noted in a footnote that 406.021 had 7. An earlier version of KRS 406.021 not did putative been amended in 1990 to allow any type mention potential of father as a 7, paternity complaint. father to file a Id. at filing paternity candidate complaint for de- biological recognized n. 1. Cummins mother, spite expressly providing that unmarried father of child to an mother child, agency providing support state wrongful had to sue for the child's the child could file com- such a death and inherit this child born could from version, plaint. Under this earlier we stated out of Id. at 7. The children at issue wedlock. that "[t]he statute does not afford the father in Sweat and Cummins were bom to mothers right pater- into to come court have his concep- were time unmarried at the Turner, nity determined” Sweat v. birth, tion and and we not did consider (Ky.1976). recog- But Sweat alleged biological rights either case the of an nized the father seek paternity complaint concerning father file a (born custody of his child to an unmarried a child born a mother married to another passed away) mother who had since without a man. previous judicial paternity. determination Cox, Id. at 437. In Cummins v. 799 S.W.2d 5 least ten relationship ended by the marital proposed out-of-wedlock birth birth.”13 But prior to the child’s months Act on Pater- in the 1960 Uniform drafters depended Montgomery holding Act nity. Section Uniform non-appeal- the effect large part upon Paternity states that: “[a] divorce finding an earlier judicial ed a child born born out of includes wedlock that the woman’s to the effect proceeding by man than to a married woman other the child: not the husband was commentary The official her husband.”8 Here, marital rela- although spouses’ Kentucky’s mentions varia- this section category into tionship did fall tion from the Uniform Act draft.9 prior ten months having ceased By language plain birth, uncontroverted that child’s only applies to births out chapter an earlier found in the husband was out wed- And it defines births wedlock. proceeding not be the circuit court births married women including lock as finding not before That child’s father. shows that the husband where evidence so, being the trial appeal. us on That relationship” ceased wife’s “marital certainly by concluding err did not the ten months before child’s birth.10 had legitimacy that the case, that allegation the have no instant clear, “so by evidence been overcome marital Wife Husband’s convincing as remove the distinct and had ceased ten months before Child’s realm of reasonable not birth. So Child does meet statuto- doubt.”14 wedlock, ry definition a child born out of in sup- then cited Montgomery The court Chapter grant does not 406 in which proposition two cases port subject-matter jurisdiction give court successfully paternity was the husband’s to seek deter- J.G.R. having challenged despite the mother been Chapter mination birth.15 married at the time of child’s recognize Appeals We cited, But, in some evi- both of the cases rejected argument Montgomery in v. (albeit disputed) presented was dence “a McCracken12 that child born a mar- ten before marital relations ceased months fact, ried woman can be found to been have cases in- the child’s birth —in both spouses’ separation spouses.16 born out of wedlock volved the (1960), Paternity § wedlock" 8. Act on PA- a "child bom out of Unif. 1 ULA case not Volume, (2001 Chapter by § 1 defined KRS 406. TERNITY Main 2007 Elec- Update). tronic Pocket Part (Ky.App.1990).

12. 802 S.W.2d 943 9. Id. Id. at

13. 944.

10. KRS 406.011.

14. Id. recog- predecessor-court 11. We note that our Simmons, Id., citing v. 479 Simmons "a father of a child born 15. nized that Com., (Ky.1972); v. S.W.2d 587 Bartlett have visita- out of wedlock would (Ky.1986). Calloway, rel. S.W.2d 470 grounds ex 705 tion with child" constitutional Horlander, Phillips v. 74 Simmons, ("The (Ky.1975). child there met But the at issue S.W.2d at 586 16. See of a born 406’s definition child wife and the husband denies that contends parents they engaged out were un- their of wedlock because his sexual relations at months be- separation^]” both at the time of the birth and which occurred ten married Bartlett, birth); at at 705 S.W.2d heard the case. See id. fore child's time spouses (conflicting testimony as when Again, the child issue the instant 406.011, The Montgomery court then well stated as the language subject-matter jurisdiction to determine KRS 406.180—neither which has been paternity upon the mother’s motion was amended since Shanklin20—and then re- proper overwhelming because of proof versed, stating that: that the husband was the father Paternity Act on for- Uniform child: Legis- mulated The Kentucky Since child by implication therefore lature, amendment, by a 1972 varied the by was found the circuit court to have language the 1960 Act in two Uniform “born out “a of wedlock” to mar- been (1) In defining instances: what was ried by woman a man than other her by phrase meant “born out of wed- husband,” the clearly district court was by adopting lock” the language of KRS subject vested matter 406.011, (b) substituting for a paternity.17 determine four-year statute limitations contained To the Montgomery extent Act, language Uniform McCracken and other cases find portion KRS 406.031. [Omitted discuss- subject-matter jurisdiction in any to exist legislature remedy es how tried to un- court of the Commonwealth over certainty in Act 1960 Uniform limita- (1) involving actions a child “to a born provision through adoption tions of KRS married woman a man other than her 406.031.] husband” satisfy who cannot the nar- We would be less than candid if we row definition embraced the General point did not language out used Assembly that a out wedlock surely for the clarification is of model includes one where the husband wife 406.011, precision. According a to KRS ceased marital ten relations months before during child born lawful wedlock or birth, the child’s Montgomery v. McCrack- thereafter, ten pre- within months authority contrary en and other sumed to be the child husband overruled. by qualified provi- and wife. This is Montgomery v. McCracken is inconsis- sion that a child born of wedlock out holding Depart- tent with the earlier includes a to a married child born wom- Security ment Economic v. Shanklin.18 by a man than her other husband Shanklin, In agency sought a state where evidence shows that marital recoup payments a support made for child relationship between the husband and eight born months her after mother’s di- prior wife ceased ten months vorce from filed a Shanklin. Shanklin mo- birth of the child. action, tion to stating dismiss the that the Reciprocal En- Under Uniform time-barred, citing action was the then- Act,[21] forcement of the issue Support existing appearing statute of limitations paternity may be raised the defen- Chapter support 406 for of a child out judi- previously dant unless it has been granted of wedlock. The trial court cially It is our conclusion predecessor- Shanklin’s motion.19 Our determined. quoted that, the presumption legitimacy despite court confusing language, separated they engaged and whether in sexual 20. Id. at 683-84. separation.). relations their Reciprocal 21. The Uniform Enforcement Montgomery, 17. 802 S.W.2d at 944. (URESA) Support Act was then and is now Chapter found in KRS 407. (Ky.1974). S.W.2d 682 Id. at 683. of a child born to to determined court legislature was not the intent of to another man even years bar action of the mother married such within three here) (as is no evidence or date of birth of a child born with the where there presumption legitimacy.22 allegation that marital relations ceased ten But the before the child’s birth.23 months words, In other Shanklin belongs to policy decision that choice is Chapter inapplicable found to that Assembly. since the And General case because child issue was not not chosen to Assembly yet General child out of wedlock” as defined “born 406 in such a man- Chapter amend KRS 406.011. Since the child was “born ner, authority without to amend the arewe presumption legitimacy,” with the law for them. disputing pa- not barred from ternity by provision limitations or even It is the absence evidence 406; Chapter but the father could still allegations the marital dispute paternity Chapter because Husband ceased ten between Wife and (URESA) challenge pater- him to allowed that bars months before birth Child’s nity long previously so as it had not been action, not paternity J.G.R.’s J.G.R.’s sta- Likewise, in the in- established court. “stranger marriage.” tus We case, stant the child was born out of not argu- do not reach the Wife Husband’s wedlock, as defined Chapter so only parties ment can apply not and does does legitimacy challenge presumption subject-matter confer on the do under KRS 406.011. We note court or to have J.G.R. does not plain language of custody/visita- determined and say may challenge tion matters decided. says what legitimacy cir- but born to a married cumstances recognize Assembly

We that the General can be considered child born out woman may have chosen to bar suits fact, required if the thresh- of wedlock. allegation where there is no a cessation met, showing old is that marital relations peri- marital relations for the ten-month ten months before the birth ceased in part od because of difficulties in accu- child, possible that the al- it would seem rately determining the father biological leged biological may paternity father file a child at time these statutes were complaint specifical- because KRS 406.021 enacted or amended to their form. present may ly complaint that such a testing, modern DNA states legis- view of “putative father.” The term might reasonably filed lature choose to amend again recognize “putative father” is not defined alleged statutes an statute, biological paternity father’s have but is defined Black’s Law wedlock”; 684-85. "out of KRS 406.111 Id. at child born expressly define term “out of does not and, thus, impact ap- does wedlock” not orally argued 23. J.G.R.’s counsel that there Rather, plicability Chapter 406. child "dueling presumptions” Chapter in KIRS would have to be determined to be born "out presumption in 406: the KRS 406.011 versus under KRS 406.011 for the court (regarding wedlock” presumption KRS in 406.111 authority genetic testing to order have expert’s paternity as to conclusion based KRS and to admit such test under 406.081 genetic testing). applicability on But the 406.091(3) evidence under KRS be- results in Chapter 406 is in which chil- limited cases applying fore the rebuttable con- Chap- dren are born "out of wedlock.” KRS expert cerning conclusions on based expressly ter when child 406.011 defines testing 406.111. genetic on as found in KRS bom to a married woman is included as Dictionary (8th ed.2004) alleged general jurisdiction power grant “[t]he biological father of a child born out of dissolutions and of marriages annulments wedlock.” separation gener- decrees —in al, the power marriages.25 terminate As Subject D. No Matter Jurisdiction part jurisdiction of its to dissolve mar- Under KRS n riages, also divide maintenance, property, spousal order relying solely Chapter 406,

Not support order any J.G.R. child for children also contends that as a biological Also, marriage.26 parent, granting has when standing custody he to seek divorce, 403.270(2) the trial court under must determine the KRS 403.270. pro KRS custody of children the marriage born to in vides that a court custody shall determine accordance with the standards in enunciated the child’s best “equal interests and that in KRS 403.270. But KRS 403.270 does given consideration shall be to each par govern whether trial court has sub- ent.” .a But Chapter nowhere KRS ject-matter jurisdiction to determine custo- the word “parent” defined.24 dy of involving children cases not Furthermore, KRS 403.270 does not marriage. dissolution of govern subject-matter whether a court has Where has been established jurisdiction custody over proceedings 406, subject-matter under Chapter juris- this type of case or an alleged whether regarding diction custody and visitation is- biological pursue father has 406.051, governed by sues is KRS custody or visitation in this situation. states that: Chapter KRS 403 is entitled “Dissolution (1) of Marriage Custody.” The stat- The District —Child in Chapter utes 403 generally give courts brought an action 1, Ballinger, 24.See adopts also Boone provided definitions KRS 12, ("Unlike states, (Ky.App.2007) n. 7 (applicable support some recovery to child statutory does not have definitions actions Public Assistance and Medicaid As- actions) ‘legal’ applicable that describe sistance fatherhood. Termi- KRS (administrative Rights process chapter, Chap- nation of Parental 405.430-KRS 405.530 KRS 625, support), simply ‘biological parents’ ter which includes the follow- refers to UAP, ing parent: ‘putative definition of father.’ The Chapter adoptive "Parent” means ‘alleged refers to ‘father’ and father,’ mother or father of a child born wedlock neither of which is defined. The Par- or a of a child born out of wedlock chapter, ent and Child judicial paternity has been in a established refers to ‘father’ without definition. KRS proceeding any or in manner consistent Chapter regarding Dissolution of Mar- state, any with the laws of this or other riage-Child Custody, contains definition of support, pursuant whose child entitled to supports ‘father.’ law Case the conclusion order, statute, to court or administrative legal that in cases such as this a child’s father determination!.] marriage is the husband of the into which the However, Chapter (governing KRS custo- child was born unless a different dy) any expressly adopt or does not other formally adjudicated.”) (Boone been ad- specific parent. definition of whether, upon dressed the of disso- marriage, biologi- lution aof the wife and the 403.010, 403.120, See, e.g., 25. and cal two of children born her KRS 403.140. KRS 403.041 and KRS equitably to her husband were es- grant power also annul di- topped asserting that the husband was legal separations. vorces and children.). not the father of two these We note one family generally other 26. See KRS 403.160 to KRS (KRS 405.405) law-related expressly statute 403.250. KRS 406.051 paternity proceedings, chapter and all remedies for en- subject- govern judgments expenses for as a Chapter forcement of whole case, for of pregnancy type confinement in this jurisdiction matter education, necessary sup- wife or for provision of any or other KRS 403.270 for expenses funeral chil- port, 406.051(2) grants Chapter 403. So KRS An ap- dren out of wedlock. concur- and circuit court court district be had the Circuit Court peal may (and fami- by implication, rent (60) days prosecuted sixty within cir- court, district and combines ly The judgment. from the date custody and jurisdiction) over cuit court continuing jurisdiction court has paternity is determined where visitation for fu- modify judgment or revoke Chapter 406’s But Chapter under ture All remedies under education. expressly limited to cases applicability reciprocal the uniform enforcement wedlock,” out of and Child children “born for act are available en- support Assembly’s nar- meet the General does not support duties forcement of wed- of a child born out of row definition this chapter. lock.27 may ju- The District Court exercise statutes, language of our plain From the risdiction, with that of concurrent standing and we that J.G.R. lacks hold Court, mat- the Circuit to determine jurisdiction to lacks determine custody ters of child and visitation custody, and visitation under paternity, cases is established where in this presented case. circumstances chapter. The as set forth Court, making these de- District III. CONCLUSION.

terminations, provi- shall utilize the Chapter relating sions of KRS reasons, reverse foregoing For custody visitation. Appeals of the Court the decision jurisdic- District Court decline Appeals case to the Court remand the tion finds the if it circumstances consis- prohibition of writ of issuance any require proceed- case level opinion. tent with this ings appropriate more to the Circuit Court. LAMBERT, C.J., All concurs. sitting. CUNNINGHAM, J., only in result concurs Although KRS 406.051 states J., SCOTT, by separate opinion which provided same standards SCOTT, J., in result joins. concurs custody govern shall de- for divorce cases by separate opinion which conjunction conducted in terminations woman,” Harris, dren bom an unmarried But see 583 A.2d 205 were Denbow 1990), deciding legislature (Me. had sim Supreme instead Judicial Court where surplusage” (Maine’s court) since highest ply "definitional Maine held that a left out commonly defined "out wedlock” birth was paternity action mother could maintain a parents not married to despite the natural against alleged biological father "with 207, citing Id. during conceived each other.” the fact that the was Webster’s Unabridged despite the Dictionary marriage to another man and her Third New International note, however, (1986). al We legislature’s the definition Maine omission of legislature had omitted though Maine’s as found in the of a child born out wedlock (1960) Act definition of "out Paternity draft while other Uniform Act on Uniform wedlock,” legislature did not substi Maine’s following Id. at 206- this Uniform Act. wise definition "out argument tute narrower rejected an another The Maine court legislature in Kentucky’s did Legislature to limit wedlock” "the intended Maine KRS 406.011. to instances to where chil actions CUNNINGHAM, J., ABRAMSON, joins. privileges the matrimonial covenant J., separate dissents by opinion in which joined together afford to those in a rela- SCHRODER, J., joins. NOBLE, J., tionship by sanctioned law. Beginning opinion. dissents separate well-meaning legislation with the of no- in fault divorce the law has diluted Opinion by Justice CUNNINGHAM legal marriage. status of With the Concurring Only. in Result divorce, adoption of no-fault grand I concur with Justice in opinion Scott’s historical contract has lost its consider- which he in only. concurs result I am also Further, Hoye ation. v. Hoye, 824 joins certain that Justice Scott me com- 422 (Ky.1992), the Court eliminat- very mending the opinion well-written tort ed the of intentional interference with writing Justice Minton on behalf of the relation, the marital known also as alien- I majority. Nor wish disparage do ation affections. was This done with a any way very ably stated dissents bow to the modernistic notions of morality. Noble, op- Justices Abramson whose The Court reasoned that the innocent I posing viewpoints respect. hold in high was spouse infidelity barred of the reasoning majority, Unlike the spouse obtaining errant from redress. Justice I opinion Scott and are both of the With the tort of abolition of the alienation only parties marriage can chal- affections, betray- the innocent victim of lenge legitimacy al been against left without recourse KRS 406.011. being We hold this view as the interloping adulterer. But not for the inherent with long-standing legal sta- today, of the majority decision here a mar- tus of marriage. couple, accord, together ried bound one This something larg- case is about much ability left any would be without to defend statutory er than interpretation. This their marital the attacks squarely case is about legal status of party of a third interloper.1 Hoye, we marriage in the Commonwealth of Ken- struck the lance from hands of the tucky today. partner marriage. offended Shall Here, couple a married wishes to be left now, do, as the have dissent would us alone allegations interloper from the of an the hapless divest shield as well? their wishes to assert claim of fatherhood to a child born couple’s mar- Exactly what term “marriage” does the riage marriage remains intact at —a today mean in Kentucky? Incredibly, we this writing. little, any, guidance offered when we

While the status of statutory turn to law. KRS 402.005 de- early century appears 21st to be on status, fines it “the civil condition or support, life it is not dead. (1) relation of one man one woman life, in law the discharge united for As I claim consider a made an inter- loper marriage, community to a I each other and pause must to con- benefits, sider rights, protections, legally what upon duties those incumbent whose er, differently, Were we any allegation to decide this case order to defend an frivolous, couple married with children would be sub- claim be allowed to would ject to Standing present such a claim. not be could evidence of the extramarital affair short, possess limited to those who making DNA-test and his basis for claim. In Further, filing. very results before it has been we would be back to the evidence we did suggested away that frivolous claims be dealt with could when no-fault divorce was through interlop- with adopted. CR sanctions. The Likewise, the society.” 402.050. See is founded the distinction association re- licensing out sets statutory scheme sex.” met. See that must be quirements statute, was the This enacted in then, Clearly to KRS 402.110. to outlaw legislature’s result of desire required before legal formalities the same marriage between members of couple a the status Commonwealth affords by It was a constitutional sex. followed in law.” being “united policy. adopting public amendment that public purpose, meeting policy While Yet, any statutory guidance there is totally without substance as it is otherwise ceremony post “united in law” as to what except marriage defining far as itself — means, marriage is the nor definition statutory it is The scheme say what not. di- anywhere by legislative expanded upon of a similar Chapter set out KRS 402 is Thus, any meaningful stat- rective. absent proclaims may perform It a vein. direction, utory upon it falls courts—in require- marriage, and valid outlines le- this one—to determine what particular, licensing. for But license do ments this gal rights, protections, and immunities To But marry. marriage? what? what is rite includes. For over one ancient Alas, we full once again have come circle years, recognized this Court hundred wanting statutory left light. and are par- marriage contract afforded either as What constitutes “civil status” men- interloper an who invaded ty redress from statutory in the tioned definition mar- be- and the affectionate bond disrupted under KRS a riage 402.005? What Then, in stroke of parties. tween the one or “condition relation”? are the What right Hoye. pen, abolished that we legally upon par- “duties incumbent” Here, hold the line. We should state More importantly, ties? what does “unit- boldly interloper simply cannot in law” mean? the law ed Where is defin- ignore marriage of the con- the existence ing privileges, protections, those a tract of fatherhood to and assert claim rights couple afforded a married under the confines of the mari- born within the statutory out scheme set in KRS tal I that the relationship. conclude short, upon 402? Court is cast court to hear the claim had any statutory mooring. vast sea bereft of “stranger marriage” over making marriage gov- Yet objection contracting pair. requirements lawful erned have a severely The wounded institution sealing upon becoming affect this act of surely protects marriage “united law.” KRS 402.050 states who claim- parties interlopers from unwanted may marriage. solemnize the term child conceived and ing parenthood (a defined as enter “solemnize” is “to into not, If I their then coverture. etc.) contract, act, marriage, by a formal marriage any legal am left to wonder if usually BLACK’S before witnesses.” See it does. meaning at all. I believe that (8th ed.2004). The LAW DICTIONARY agree overriding concern We all states that be solem- statute child. this case the welfare following: nized “ministers mar- considering integrity of When priests; justices judges gospel here, riage, we do we are not Justice, county judges/execu- the Court of child, particular but dealing with tives, justices peace fiscal Mar- couples. all born married children the Gover- commissioners authorized umbrella under riage is an institutional county judge/executive; and reli- nor or protection, support, society, party belongs if either the whose shade gious nurturing words, of children vital. at In marriage looms This other protection critical what Court it extends to the children this said was. And this marriage, marriage the if Court said had to be be of not of the bodies man twenty-five tween a and a of marriage. woman— years the legislature before followed with Hoye, part In reasoning of same for codification of that rule. abolishing of the tort alienation of affec- Hallahan, years Nine before and with- deny tions also as a to serves reason an statutory marriage, out a definition of interloper standing to sue married cou- significant Court struck a for the blow ple parental rights for to a child born protection of marriage Board Edu- couple’s marriage. Said Justice Harrodsburg Bentley, cation v. Stephens, “Such suits invite abuse.... (Ky.1964). sixteen-year-old A S.W.2d 677 only Not is a defendant in these suits Harrodsburg student High at School mar- purely victim to vindictive or mercenary ried promptly and was booted from school. plaintiff, motives but such suits are She regulation had violated a school board likely expose ‘minor children mar- any requiring student who married to riage parent’s to one of their extramarital school, subject being withdraw activities, require even the chil- year after one with permission readmitted to testify dren to details of the principal special ” condi- relationship in open court.’ 824 S.W.2d at tions. This Court invalidated both the rule being arbitrary and the dismissal as Hoye Just held in that it infringement upon marriage contract. authority had the abolish the cause of essence, S.W.2d 680-81. In action of alienation affections absent barred interloping school board from statutory contrary, to the I direction sub- citizen “punishing” young entering for light mit that in of statutory absence marriage into a covenant. guidance rights protections as to the Also, clear purpose it is to me duly couple, of a married this Court has legislative set out scheme in KRS full power to find compelling reasons to compel par- 406 was a means to protect likewise those critical elements of Adju- ents to take care of their children. marriage contract. simply dication of an essential is not first This time this Court has prerequisite to the enforcement upon been called flesh out the obligation. It was never intended be a parameters marriage. In two separate putative for a proceeding applied women County Jefferson pursue other goals. marriage Court Clerk’s office for a license. separate concurring opinion, Jus- They complaint were denied and their end ably points tice litany Scott cases up highest ed this state’s court. See in other states which have held this view. Hallahan, (Ky.

Jones most, all, opinions Granted of those 1973). time, At that there nowas statuto statutory stronger are rooted much au- ry definition of even the thority than we have here. But the dearth —not woefully ambiguous one have today. we statutory treatment of the in this issue Vance, speaking Commissioner for a unan emphasizes state need Court, imous stated that stat step give Court to into void and mean- utes did not include definition mar ing to “united in It that in law.” is clear riage, and it had to be statutory therefore defined the absence of treatment of the according matter, usage.” acting authority “common 501 S.W.2d within our

599 arrange- long-standing legal standing bring tached to this we limit claims when the circumstances before paternity under ment. Supreme The United States

this Court. Furthermore, I and strenu- respectfully provided a salute to this strong Court ously points issue with two stated take D., In Michael H. v. Gerald proposition. First, reject I no- the Justice Abramson. 110, 2333, 109 S.Ct. 105 L.Ed.2d 491 U.S. exist “marriage” ceased to tion that (1989), Supreme the Unit- the party picture.” when a “third entered a factual situation ed States confronted view wreak havoc on To hold to this would very similar to the one we have before us. be the stability the of what is considered to highest The nation’s court stated civili- endearing most social contract our statute, a “conclu- which created California Furthermore, zation. Justice Abramson’s presumption that a child born to a sive” that, by to- suggests dissent our decision living married woman her husband is with backs day, turning upon are our we marriage, child of not violate the the did denying truth its “biological truth” and process of the bio- rights substantive due I rightful place our deliberations. sought demonstrate logical father who strongly disagree. the paternity. pertinent More hand, at at Justice Scalia noted that during is a child was born truth opinion, time of the four had barred states couple’s marriage. The truth a third is standing interlopers marriage by child parenthood of that party claims judicial rather decisions than statute. through an adulterous 491 U.S. S.Ct. at 2343. Since couple is mother. The truth child’s decision, in the absence statutes married to raise the remains and wishes directly indirectly granting limiting or or marriage during their child born —a standing dispute presumption un- legally presumed to be the husband’s legitimacy children or conceived der the interfer- KRS 406.011—without wedlock, some state courts have interloper. This presumption ence of the persons held various lack case; it is unique is not to this new dispute legitimacy of born mar- applied equally children the children. Donald M. Annota- Zupanec, riages every day in the Commonwealth. tion, May Dispute Presumption Who all, point After have reached the we Legitimacy Child or Bom Conceived testing require DNA-paternity where we (1979). Wedlock, During 90 A.L.R.3d 1032 all in the children born Commonwealth. certainly is logic There much the ex- legislature has This true because the writing cellent of the dissent of Justice adopted public policy in the law that But this very important Abramson. case during marriage presumes a child born beyond well goes interpretations Further, marriage. pre- is of this existing writings legisla- nuances sumption recognized one By diverting ture. our attention from strongest known to law. See Bartlett rights protections a married cou- what Calloway, Com. rel. ex. state, has in turn the ple focus then, “truth” (Ky.1986). Clearly what, believe, I away from main be—a as to selling buy pasture issue. We are matter —is nei- personal most intimate gives the horse. The dissent heed to responsibility to ther nor our our controversy— is at center of this what proclaim in these circumstances. is, to which the contract large degree I that to a recognize parties, rights, and all Appellants ideal, real and that the writing immunities at- seeks privileges, protections, and matrimony neglect, stay state of they state should within that mar- —a higher whose divorce rate is than the na- riage partners for as both long as wish to average way tional pedes- below the married, remain for long and as as the —falls upon tal which I it. place But I also couple married wishes to nurture them. people believe we are off as a better fol- They stay should within the shadow of the lowing aloft, those standards we hold rath- rock. than those trample er which we under foot. Therefore, join I Justice Scott in concur- The facts of have presented this case ring majority only. with the in its result most for difficult dilemma this Court. We sharply are on an emotionally divided Opinion by Justice SCOTT Concurring charged question. is vital recognize It Only. Result all of divergent these views are being I only concur in for result the reason expressed from and hearts with minds I “strang- status as a believe J.G.R.’s I, one, best intentions. And for recognize er to the is the marriage” fundamental that there simple is no answer to what we reason for legislative language in KRS hope unique all is a situation. But how is, Thus, 406.011. unique only I believe that it common it may how be- come, depends say “parties marriage” much on what we can challenge and here today. long marriage do As is on presumption legitimacy under KRS books, it something. must mean And Indeed, presumption 406.011. is one proclaimed what it be means should law, strongest known to v. Tackett terms, this Court in forceful so that the Tackett, 790, 792 (Ky.1974), 508 S.W.2d people Kentucky may circumscribe their thus, is theirs alone accordingly. behavior We are need of a challenge. circle, marriage bold declaration that the Although yet we have to address the partner, one with even an errant will be many directly, other courts have. invaded at one’s own risk. C.A.P., (Ala. parte See Ex 683 So.2d 1010 It my discovery has been judge sad as a 1996) (petitioner standing bring lacked in many baffling painful of life’s action to declared fa have himself child’s solutions, problems there are sure to, ther, prior where child was conceived Therefore, less disastrous choices. but born during marriage mother’s to hus if would seem to one accepts me that band, presumed thus making husband inequities of our decision—which the dis- father); Court, Superior Lisa I. v. 133 predicts possibilities they sent as real — 605, Cal.App.4th Cal.Rptr.3d 927 34 in comparison pale prece- to the disastrous (alleged of child born out biological father setting dent we will viewpoint standing presumed of wedlock lacked holds. It seems to me that the “broader pursue pater father under Code to Family community” spoken of Justice Abram- nity mother, action against where son is best society by holding served our during was mother’s conceived fast and strengthening mooring lines while separated she was from her hus marriage. marriage, The institution of band, less than days child was born 300 slowly eroding day from modern notions final, after her and child divorce became morality freedoms, and personal being mother and raised her ex- centuries been the anchor husband, welcomed child into had It unit. has been rock in the shadow own); home out as his born, and held child Ti shaded, of which children pro- (Fla.Dist. Estrella, tected, jerina If v. So.2d 984 children 843 nurtured. are born during any Ct.App.2003) (holding the marriage, putative absent abuse or that a fa

601 marriage lacked was born wife’s standing does not have to seek to ther child). child, challenge paternity paternity where the establish marriage, into an child was born intact Moreover, no constitutional there is and her hus where married woman “stranger marriage” to the right of a action); object Cal band such circumstances. assert (Iowa Skiles, lender N.W.2d D., 491 H. v. Gerald U.S. See Michael 1999) (refusing recognize any separate (1989). An L.Ed.2d S.Ct. equitable parenting which would principles protection. intact no less deserves person marriage outside a give rel. paternity); to establish D.B.S. ex P.S. CUNNINGHAM, J., joins this opinion. M.S., 438, Kan.App.2d 20 P.2d 875 v. 888 Opinion by Justice Dissenting (where (1995) is into child born extended Abramson. opportuni family, putative marital father’s firmly I and dissent. J.G.R. respectfully with ty establishing relationship of child to Kentucky pursue is law entitled opportunity conflicts with similar of hus action, as the trial court paternity both marriage of it is not uncon band when Appeals properly Court of concluded categorical to give stitutional for state This confronted with this difficult case. Walter, latter); preference to the In re holding grievously otherwise. errs (1990) (alleged Mass. 562 N.E.2d 474 (1) Ken- precluded majority is The reasons biological father from chal KRS lenging tucky’s Paternity, fa Act on presumption that husband is Uniform only to born during Chapter applies ther of mar children child born wife (N.D. (KRS (2) 406.180); K.D., young riage); B.H. v. out wedlock N.W.2d 1993) (man as claiming to not born out of wedlock be father child J.A.R. was and, 406.011; marriage consequent- in KRS during mother another defined (3) paternity ly, pursue man lacked rebut J.G.R. cannot testing though allegedly of child’s v. action DNA legitimacy); David V.R. Wan even J.D., (Okla.1995) (puta biological da 907 P.2d 1025 his connection establishes truly disputing strong tive father barred evinces a desire to pre was conduct view, my sumption legitimacy of child he asserted be a father to child. product finding affair that J.A.R. was majority was of his extra-marital errs mother, wedlock, during misconstruing the where child was born mar not born out of husband, shows that riage phrase and her and child “where evidence mother being her husband reared mother and hus marital between (10) months family); prior as of their and wife ceased ten band member CW LV, Properly the child.” con- (Pa.Super.Ct.2001) 788 A.2d 1002 birth of (third strued, situations party applies should not be allowed to at confronting us and functioning of a such the one now integrity tack marital as pater expressly paternity pe- seeking unit when his own allows J.G.R.’s assert (in- Admittedly, jurisdictions in an intact tition. some nity against the husband cited to Justice marriage); many of those cluding In re 807 S.W.2d 779 concurring opinion) have laws (only or wife is Scott in his (Tex.App.1991) husband legislature’s apparent de- deny paternity entitled to husband’s reflect family, currently intact subject preserve of suit and who is born sire child costs, fractured, at all parties); previously or conceived however v, (Utah Pearson, biological truth including ignoring Pearson 134 P.3d 173 not one paternity. Ct.App.2006) (putative father of who matters Moreover, explained of those of a or may states. The father child which is below, laws which allow for establishment be born liable out wedlock is of the truth as to the same extent as the father of a child of a far society’s child do more to advance wedlock, born in whether not the preserving interest families than those alive, child is born for the reasonable to anyone lock courthouse doors expense pregnancy the mother’s but the mother and her husband. and confinement and for the edu- cation, necessary support funeral 406.021(1) allows to be expenses of the A child. child born “upon complaint determined wedlock, during lawful or within ten mother, father, child, putative person, or thereafter, presumed months agency substantially contributing to the the child husband and wife. support “putative of the child.” term However, father” a child is not defined in KRS born out wedlock “putative” but “generally is defined as con- a child born to a includes married such; reputed.” sidered or deemed WEB- a man by woman other than her hus- NEW STER’S COLLEGE DICTIONARY band where evidence shows that the (1997). the generally Is father of a child relationship marital between hus- provided who considered be the man (10) band and ceased ten months wife genetic makeup half of child’s or (Em- prior birth child. to the gave man to the married mother birth phasis supplied). I child? While believe the former is After citing provisions, these two generally “father”, more considered majority that did Kentucky biological There is no fatherhood. occasion, band and wife on even with telling that marital rela- proof more “the regularity, monogamous but the “marital tionship the and wife between husband relationship” on which our society is based (10) prior birth of ceased ten months to the party “ceased” when that third entered the child.” picture. If we actually focus on words Assembly, used General For those that KRS 406.011 who believe relationship”, opposed “marital as to sub- inter- just readily susceptible (and stituting “marital relations” therefore pretation majority opinion advanced intercourse) operative sexual as the con- particular interpreta- who believe that cern, then it is that apparent a child born does to advance the Common- tion more under the circumstances of this case is in the integrity wealth’s interest indeed born out of wedlock. This inter- family, three should points be considered. pretation has the added com- advantage of First, family when strengthened how is the with porting common sense because few mother can a child outside of conceive people would that a child born to marriage and assured that she alone a married woman and a lover is not and can origins knows child’s her husband indeed born out of wedlock. discovery? their She can harbor control divorce, revealing this secret until Assembly If our General this intended if it juncture pur- truth at serves her why interpretation, might question some See, e.g. Ballinger, Boone v. poses. they phrase bothered add the “where inter- (Ky.App.2007). With evidence shows that the marital relation- pretation, there are no societal disincen- ship between the husband and wife ceased conceiving tives to a child outside the prior ten months to the birth of marriage. Construing bounds of her Why they adopt child.” simply did relationship” as more encom- “marital UPA’s standard definition—“a child monogamous relationship, to a passing out of wedlock includes child born hand, if married woman a man than her other leaves doubt she other affair, engages in an extramarital the man rights were not violated a California will a legal right have to claim a place creating statute conclusive Second, the child’s life. for those who that a child born a marriage was a places think it the child in an untenable child of the marriage. Only the husband position vis-á-vis his or her in-home father or wife could challenge the presumption perhaps siblings, other there are tens and, then, only even challenge of thousands of blended families all across years raised within two of the child’s birth. Kentucky who deal with types those context, In Supreme Court stated: daily. issues Many marriages include chil- ... Where the child is born into an dren who “yours and mine” or “yours, extant marital family, the natural fa- mine and cope ours” those families (to unique opportunity ther’s develop a visitation, with weekend and summer offspring) with his conflicts shared holidays and aspects other similarly unique opportunity of blended families. situations such as the the husband of marriage; and it is case, one in this variable not unconstitutional for give the State to the child or parent children who have categorical preference to the latter. outside the home are the younger op- 129,109 Id. at S.Ct. posed to the older children Thus, can give states and do clear “cate Third, residence. knowing the truth about gorical preference” to the rights of the one’s genetic background has both medical husband of the marriage. example, For and psychological consequences. Is it ap- J.D., David V.R. v. Wanda P.2d 1025 propriate to leave child without such (Okl.1995), statutory the Oklahoma scheme genetic knowledge that could be crucial provided that “all children born during the course of his or her life medical wedlock are legitimate” presump and the situations? As for the psychological com- tion except by was irrebuttable the hus ponent, it is commonplace adoptive band or wife or the descendant of one or parents encouraged are to share with their states, both of them. In other there are children the fact of their adoption at an ways several “presumed a man can be a appropriate Why time. should children father” presumed and once a child has a like J.A.R. not have a similar statute, under the issue his or short, know? In hiding the truth not does her except by cannot be raised support integrity or ad- mother, father, presumed the child vance the best interests of the child. agency or an of the state if the child is concurring Justice Scott’s opinion cites See, receiving public e.g., assistance. Ex jurisdictions cases from several that simi C.A.P., A.C.P., parte W.H.P and 683 So.2d larly leave the biological father without (Ala.1996). 1010 recourse where the mother is married to expressed “categori- has not another man. Each of these cases is de preference” cal for the interest of the hus- cided as a matter of that individual state’s band marriage. to the Unlike states with law and none is binding on this Court. presumptions expressly state that The Supreme United States Court has only challenge the husband or wife can held that may properly adopt states pre marriage “born sumptions and therefore and limit actions as a marriage” presumption, matter Specifically, of state law. in Mi D., preclude challenge by chael H. v. does not Gerald 491 U.S. (1989), Indeed, parties marriage. S.Ct. 105 L.Ed.2d 91 outside the the Su preme challenges Court held that a such father’s have been allowed as evi- procedural process McCracken, and substantive due by Montgomery denced v. Appeals clear that (1990), majori- is also in the discussed Commonwealth, could be deemed that a child ty and Bartlett v. concluded opinion In the latter (Ky.1986). parties where the 705 S.W.2d even born out wedlock case, May, 1975 was a child born maintained “marital marriage had to the the child of his mother’s not to be deemed was clear evidence if there relations” married at she was though even father. not the child’s husband was conflict- the birth. There was the time of assertions, we Contrary appellant’s she and her testimony about whether ing provision persuaded any type separated were husband a married child born to that a indicates at the time the child marital to have been born be found woman can testing HLA established conceived but was mari- spouses’ if the out of wedlock man the father. The that another was least ten relationship ended tal by the Com- apparently brought case was Here, to the child’s birth. prior months the child’s real monwealth to determine marital relation- although spouses’ father. category not fall into the ship did believed, testimony, mother’s The to the prior ten months having ceased marital “that the to establish sufficient birth, uncontroverted child’s the husband and relationship between in an earlier found the husband was prior ten months wife ceased be the to not proceeding circuit court .106.011,supra. birth of the child.” KRS finding is not before father. That child’s HLA need not decide whether We so, the trial being That appeal. us on suffi- testing standing alone would be concluding err certainly did not presumption cient to overcome the appellant’s had legitimacy legitimacy and establish testing clear, HLA paternity. Certainly, the “so overcome evidence been corroborated the evidence of when convincing as to remove distinct and access, support, toward the contribution of reasonable from the realm characteristic, genetic is so and a similar Simmons, Ky., Simmons doubt.” See overwhelming proof to constitute be- (1972). 585, 587 479 S.W.2d yond a reasonable doubt. original). (emphasis at 944 802 S.W.2d acknowledge the im- By opinion view, my errs overrul- majority, sup- portance testing of HLA blood allow Montgomery as ing cases such necessary plying evidence as to over- presumption. rebuttal of the presumption legitimacy come the beyond a requirement proof rea- have notably, many states Finally and justice Truth and sonable doubt. this such as parentage cases dealt with irrevocably They are Siamese bound. Parentage by adopting the Uniform one single heart Nei- sharing twins beat. Par- of the Uniform Act. The 2000 version very long without the ther can survive standing to a man allow entage Act would of science the advances other. When sought he ad- provided position in J.G.R.’s discovery to assist serve later than two judication parentage truth, them. law must accommodate See, § 607 the child’s birth. years after pick and choose when The law cannot (2000). The com- Parentage Act Uniform prevail. truth will the variance § 607 reflects mentary to Id. 472-73. the issue dealing among states adopted ground middle and the it the Common- Montgomery appears In Parentage Act: the Uniform moving party but again wealth was 2000, year right As of an paternity law allows a action to be filed paternity “outsider” to claim of a child J.G.R. under the circumstances ato married woman varies consid- case. erably among the Thirty-three States. short, In our world is full of inconven- States alleging allow man himself to be ient truths. accomplish nothing We the father presumed child with a families, the community broader and our father to rebut the marital presumption. justice system deny truths, when we those granted Some right States have especially Kentucky when law does not through legislation, while in other States require that result. J.G.R. should be al- case recognized alleged law has fa- pursue paternity lowed action because ther’s presumption rebut wedlock, J.A.R. was born out of in both the and establish In paternity. his some understanding common of that term and as States, statutory there is both and com- provided KRS 406.011. The support mon law for the of a had and the Court of alleging man himself be the father to Appeals was correct in denying the writ of assert his paternity of a child born to a prohibition. States, Finally, married woman. some California, such absolutely bar a man SCHRODER, J., joins. commencing a proceeding to estab-

lish paternity provides if state law Dissenting Opinion by Justice NOBLE. statutory presumption Respectfully, I dissent. man, of another see West’s Ann. Cal. 621, § Evid.Code upheld in Michael H. parties The petition to this writ and the D., and Victoria D. v. Gerald 491 U.S. majority of this Court have confused a 109 S.Ct. 105 L.Ed.2d statutory proof require- element of as a 91(1989). standing. ment for paternity chap- (2000) attempts UPA to establish a mid- ter, standing pursuant must be determined ground dle exceedingly complex these party to KRS 406.021. If a standing, (a) issues. Subsection establishes a two- then, then and the presumption does year limitation for rebutting pre- statute, 406.011, have relevance as sumption of paternity established under setting forth proof certain elements presumed Section 204 if the mother and the presump- must be established to rebut father were cohabiting at the time of tion that a during marriage child born conception. presumption pater- the child of the Specifically, husband. mother, nity may be attacked claim making one who is father, presumed third-party or a male not a husband must establish that the child period; thereafter, this limited is born out One does not have of wedlock. is immune from attack prove element order have the by any of those individuals. right plead right to it. The to make a Annotated, § 9B Laws 607 Uni- Uniform great claim is a deal broader than what Parentage p. form Act at 342. Cer- prove one must to establish that claim. tainly Kentucky’s stance on this issue interest, Standing requires personal a would be clearer and the of paternity issue often referred to as a “substantial” inter- fairly finally would be and in adjudicated a suit, in subject est the matter of the not a timely if Assembly manner the General reason, expectancy.” “mere For this sub- simply adopted the 2000 version of the Nonetheless, stantiality of an interest must be deter- Parentage Uniform Act. even legislation, Kentucky without this model mined to its direct the

607 #3, plaintiff v. Ashland satisfied it can be said claimant. Ashland F.O.P. 667, (Ky.1994). “Standing 888 668 S.W.2d has a real interest in the and substantial party to sue” that a means has “a suffi subject litigation.” matter of the justiciable cient in an stake otherwise con doubt, Beyond JGR has shown that judicial troversy to obtain resolution Family alleged the case. He that Court controversy....” that Sierra Mor Club v. the child he was father of ton, 727, 731, 1361, 1364, 92 S.Ct. 405 U.S. genetic proved claimed a test this. (1972). 31 is a “Standing L.Ed.2d 636 his personal This is a claim about father- concept to determine if party utilized is interest in the showing hood a substantial to sufficiently affected so as insure that a controversy. also cited KRS He justiciable controversy presented is to the jurisdiction, specifi- conferring court; right step it to take the initial is cally children “born out of references legal adju issues for frames ultimate wedlock.” “It is axiomatic such jury.” by judge dication or Law Blank’s circumstances, every well-pleaded allega- (6th ed.1990). Further, Dictionary 1405 complaint tion of the must be taken as standing must be viewed as to power light true and in the construed most fa- cases, hear and decide “does not con against whom party vorable cern the ultimate merits of substantive Scroggy, motion is v. 725 made.” Gall claims involved in the action.” v. Weiner (Ky.App.1987). S.W.2d 867 As Chief Jus- Prussia, Bank King 358 F.Supp. 684 previously City tice Lambert wrote (E.D.Pa.1973); Cohen, see also Flast v. 392 Louisville v. Stock Yards Bank & Trust 99-100, 1942, 1952, U.S. 88 S.Ct. Co., (1968) (The (Ky.1992), 843 S.W.2d 327 L.Ed.2d 947 fundamental as pect standing is that it focuses on is of the trial province [I]t neither party seeking get complaint before court nor of this Court consider ... court and not on the he wishes issues Appellant may prove whether be able adjudicated.... words, In have other allegations ultimately prevail. its On standing case, when is placed issue in a review, will confine itself to a this Court person is whether the whose determination of whether the matters standing challenged proper party alleged complaint appel- in the establish request adjudication a particular an is standing bring lant’s the action or sue and not whether the issue itself is whether in- it is without “substantial justiciable.). plaintiff A must “alleged have subject terest” in matter of con- such personal stake outcome troversy. ensure concrete adverseness.” Black’s (citations omitted). Id. (6th ed.1990). Dictionary Law issue feelings pa- Because about the Senate, State Kraus ternity strong among run (Ky.1993), this Court Court, we have members of opined, to sue “We believe jumped proper pleading over the hurdle of party means that a sufficient procedure evidentiary merits of justiciable interest in an otherwise contro- doing this case when we have business versy judicial some to obtain decision We, court, appellate even on so. the controversy. As noted Court from the procedures appealed writ Appeals, to take initial fact. Appeals, not finders of step legal issues that frames for ultimate filed in this case under petition JGR Likewise, adjudication.” in Stevens v. Ste- vens, statutory provisions, including various (Ky.1990), 798 S.W.2d statute, stated, 403.150, requirement standing “The is KRS the divorce and the references, child custody statutes he This is but one example evolving legal (the UCCJA), 403.400 and questions KRS 403.620 that arise when a new type of which repealed have been and replaced court is instituted. At present in Ken- Custody Uniform Child tucky, Jurisdiction Circuit Courts hear custody and (UCCJEA). actions, and Enforcement Act support How- pa- District Courts hear ever, alleged paternity juris- he also ternity actions, and dependency/neglect diction by citing over this case Family KRS and Courts hear all these areas. 406.051, which specifically paternity refers to “chil- The statutes allow District dren born out of wedlock” and which incor- Courts to custody support determine and porates paternity the entire chapter. paternity He necessity, case. Of a peti- further specifically alleged, “Paternity tion in Family has Court must cover all possi- yet established, however, claims, been DNA though ble the various claims paternity test results confirm the law, of the be decided in the required by order Petitioner.” clearly which help piecemeal would avoid litigation in Family jurisdictions. Court The Motion to Dismiss which is the basis petition JGR’s may be understood more petition for this writ is framed around the clearly in light. issue of whether JGR has standing to bring this action. The Memorandum in standing solely Since is determined Support standing states two allegations issues: petition, with all JGR standing custody has no to seek factual assertions taken as true and con- support; and that he standing has no light strued most favorable to the seek a paternity. determination of It party against whom motion to dismiss is noted, however, made, should be petition that this question relevant is wheth- was filed in a Family jurisdiction. Court er JGR has alleged matters the com- guiding concept Family plaint standing Court is sufficient to establish his “One judge, family.” custody one Both paternity, custody since as to his paternity Family are included in support ripen Court he cannot unless is the subject jurisdiction. matter Consequently, legal father of the child. Whether he us, all issues to be heard may be filed one could prevail is not the before petition, as JGR did here. impermissible and would indeed be fact- finding. claims,

As to custody JGR’s and support they clearly premature. At point regard “In pleadings, Kentucky of pleading, there was no always determina- pleading theory followed the notice child, tion that he is the father of the only requires plain short and required which is as he was not married to statement of demonstrating claim that re- the mother when the child was born. On lief necessary.” is warranted and Equitania hand, Garrett, the other proceed P.S.C., Ins. Co. v. Slone & ripe. statutes is If (Ky.2006). scrutinizing JGR S.W.3d were found to be the yields father under the whether a pleading standing, “We statutes, Family longer approach Court could no pleadings searching for custody flaw, address the support claims a technicality upon which to strike Family jurisdic- defense, seriatum. In the down a claim or formerly as was tions, nothing there is inappropriate about the case at common law. Whereas the old pleading all possible petition. claims in one common demur searched the pleadings law Indeed, may necessary dismiss, to avoid res a reason to now a Motion to judicata. Dismiss is directed at the substance to full Isaacs, who are entitled against plaintiffs 777 S.W.2d pleading.” Smith v. (citations omitted). the mer- In their claims on 912, (Ky.1989) consideration of Garrett, (Ky. Processing Ser- McCollum v. 880 S.W.2d Data its.” Association of 1994), suffi affirmed that the Camp, this Court Inc. v. 397 U.S. Organizations, vice be resolved ciency pleadings should 838, 25 L.Ed.2d 192 90 S.Ct. so as to do reading a commonsense (Brennan, J., in and dis- Concurring part end, that all that is justice. To substantial senting part). sufficiently that a necessary pleading specifically must saying In that JGR claim. Natural identify the basis of the is a that the child plead Protection

Resources and Environmental wedlock,” is mis- majority out of “born Williams, 47, 51 768 S.W.2d Cabinet v. taken, adequate clearly gave he because (Ky.1989). In by citing KRS 406.051. notice of such fact that addressing the Without he standing that he lacks because saying must considered to de- pleadings alone be that the marital specifically plead did not straight standing, jumps termine JNR and husband relationship between the wife claim, as has evidentiary merits of the birth, child’s ten months before the ceased chapter, In majority. paternity requiring him to meet majority pursuant must be determined he allowed proof will be standard before 406.021, may bring which defines who is no saying there proceed. “putative action and lists a marital end- evidence that the Asente, 110 father.” Moore v. Cf. birth, this the child’s ed ten months before (Ky.2003) (determining stand- 355-56 advi- far into the realm of goes too announcing to the ing reference statute of this case sory The stance opinions. action). may bring custody “Puta- petition was filed is the time the writ statutes, tive father” is not defined admit- any kind had been no evidence Dictionary is defined Black’s Law but plead- attachments to the writ ted. The (6th ed.1990) alleged or re- “[t]he evi- supplements go all ings and other of a child born out of wed- puted father province that are the dentiary matters alleged lock.” JGR has that he is court, court. Ob- appellate the trial father of a child born out of wedlock his takes the view viously, if this Court even claim, jurisdictional and specifically asserts estab- inadequate pleadings personal, his substantial interest con- is no evidence to standing, lish there standing. has case. He thus advisory giving not be sider and we should party standing, If a then and rebut to whether JGR could opinions as then, certain require does KRS 406.011 presumption. proof that must be established elements majority view I do not subscribe that a child born to rebut the inadequate that pleading is so JGR’s child of the is the claim, of his identify the basis it fails Obviously, right to make husband. standing to find that he has and would great deal broader than what claim is Clearly, claim. JNR bring the claim. prove one must establish pater- seeking understood JGR an element of prove One does not have to motions nity as the court determination it. Dis- plead a claim to have the demonstrate. proceeding this writ can ad- covery subsequent motions true that in order to be While sufficiency of the evidentiary dress the child, he must adjudicated the father of the is to “use Doing anything claim. else between that marital relations prove door either standing to slam the courthouse Consequently, the wife and husband ceased ten months this case should be re- prior provide to the birth of the child or manded to the trial court to allow JGR to proof other sufficient allowed in proceed with action so McCracken, Montgomery v. 802 S.W.2d may sufficiency proof. determine the of his (Ky.App.1990), putative where a was nonetheless declared the father of a

child though even the mother married an

other man seven months before the child’s

birth; and in Bartlett v. Com. ex rel. Callo

way, (Ky.1986), 705 S.W.2d 470 where the marriage,

child was born but HLA testing, genetic

evidence of a similar characteristic, providing support and other KLEET, Appellant, Allan B. testimony say was found sufficient to father, putative father was the that is proceed (now

not relevant at this point Cooper), Appellee. Vicki KLEET ings. proof We do not know what that No. 2006-CA-000035-MR. would be. These cases state the status of the law as to access as it has been in Appeals Kentucky. Court twenty years, for over and re Aug. wrote, flect as Justice Leibson justice Truth irrevocably bound. Discretionary Review Denied They sharing single are Siamese twins Supreme Oct. very heartbeat. Neither can survive long without other. When the ad-

vances of science serve to assist in the truth,

discovery of the the law must

accommodate them. The law can not

pick prevail. and choose when truth will

Id. at 473. There is no need to reverse Doing

these common sense cases. so is an decisis,

affront to stare done being majority addressing

because the

propriety proof rather than whether the right

JGR has to offer it.

Certainly, we do not know what JGR

might produce be as evidence. It able might

is conceivable that the mother con-

firm that marital relations had in fact prior

ceased ten months the birth of the stand, despite when called to the

what have been said earlier or what is

being proof apparently said now. Other

available, specifically testing. DNA JGR

clearly to at process right due least heard, standing. because he has We

must not he could advise to whether

succeed. notes not sim- certainly reasonable minds could differ on ply adopt section of the Act on Uniform Regardless, apparent this issue. it is (1960) Paternity which “a states that: 406.021(1) clearly KRS does not rule in or born out a child of wedlock includes petition rule out by a a man J.G.R.’s to a a man other than married woman position.1 fact, Kentucky adopted her husband.” general KRS 406.180 does describe the precise language and then added the applicability KRS 406 as fol- phrase majority emphasized above. The lows: doing believes that so the chapter applies all This cases of Assembly “distinctively” General chose a birth out wedlock: out of wed- different definition for birth (1) birth occurs within Where this ie., lock, had “mari- couple if the married state; prior tal within ten relations” months (2) birth When occurs out of this state child, is not born birth of a that child is a the time mother resident of out of but of the mar- wedlock is a child 18,1964; after this state June or riage. a wife interpretation, Under birth When occurs out this state could have sexual with her one encounter following and at some time the birth husband in ten her preceding months the mother becomes resident of child’s sexual en- multiple birth and have 18,1964. state after June (or men) counters with another man but still born in wedlock to provides the child would be descrip- 406.011 tion of a “out of man on her birth wedlock”: mother and the named notes, definition, majority 1. As the LAW BLACK’S DIC- wedlock.” Under this J.G.R. is a "putative TIONARY defines father” as putative “[t]he father. alleged father of a child born out of Assembly General had marriage certificate. This is not our husband”? If the what so, father any claiming legislature intended. done man to be bring petition and set in a child could speak KRS 406.011 does not to “marital paternity testing proceedings motion relations”, polite reference the sexual allegation. than a with little more bare aspect marriage, but rather to the “mar- by our re- language legislature The added broader, more relationship”, ital of evidence preliminary showing quires meaningful aspect married that cler- life relationship the marital “ceased” gy judges speak joining of when two words, relevant In other timeframe. one. A marital has relationship fives as must some evi- putative father have emotional, physical, and, moral yes, social proffer that shows is not mere- dence to he dimensions is characterized a mo- ly expedition on a to create fishing out nogamous parties bond between the two marriage. in a The havoc evidence relationship. The “marital rela- would show cessation of the marital between the and wife” referenced husband inevitably must be on a tionship assessed certainly said to can case-by-case basis but would undoubted- having “cease” when the wife is sexual encompass puta- ly a situation where the man. “mar- intercourse another had access to the child tive riage” may still exist as matter of law cooperation by through mother and (ie., “marital relations” sexual inter- testing DNA has secured that establishes course) may still occur between the hus-

Case Details

Case Name: J.N.R. v. O'Reilly

Court Name: Kentucky Supreme Court

Date Published: Apr 24, 2008

Citation: 264 S.W.3d 587

Docket Number: 2007-SC-000175-MR

Court Abbreviation: Ky.