Contempt Affirmed for Failure to Submit to Genetic Testing to Determine Paternity, J.K. v. N.J.A., el al, Ky Court of Appeals

J.K. v. N.J.A.; Honorable Linda Bramlage,
Boone County Family Court Judge; and Honorable Bailey Taylor
, 2012-CA-000897-ME

Published: Affirming

County: Boone

ISSUE:
Whether a man, with whom Mother admits having an affair and living with for
about fifteen months-until mere days before Child’s birth-is entitled to know
whether Child is his biological son.

FACTS:

Mother
gave birth to Child May 16, 2011. Mother claims that her Ex-Husband, with whom
she plans to remarry, is the father and listed him as such on Child’s birth
certificate. Despite an order from the Family Court compelling Mother to
undergo genetic testing for herself and Child, neither was tested due to
Mother’s maneuverings. 
The
Family Court entered an order following a hearing on a paternity complaint by
Putative Father.

The Family Court found Mother in contempt of multiple  orders from the Family Court, which ordered
her to submit herself and Child to genetic testing by a later date or serve 180
days in jail. Mother refused to comply with the Family Court’s orders.

 ANALYSIS:

 Mother alleged that she and Child
should not have been ordered to complete the genetic testing because no state
action was involved; Putative Father did not qualify as such under KRS 406.21
and could not challenge paternity; Ex-Husband was presumed to be Child’s father
because Child was born less than five months before the parties’ divorce; the
Family Court’s order violated Mother and Child’s constitutional right to
privacy; and the Family Court should not have ordered the maximum contempt penalty
for Mother’s failure to comply with the court’s order.

 KRS Chapter 406 is the means by
which courts determine fatherhood. While a child born during lawful wedlock may
be presumed to be the husband’s child under KRS 406.11, that presumption is
rebuttable, so that a legal finding of paternity is not denied to a putative
father. KRS 406.091(2) mandates genetic testing upon a request of a party
supported by an affidavit. Putative Father in this case made such a request,
and it was the Family Court’s duty to order the genetic testing. Mother should
have requested written findings of fact and conclusions of law from the Family
Court regarding whether Putative Father qualifies as a putative father under
the statute and whether he had standing to assert a claim of paternity.
However, Putative Father presented sufficient evidence on the record that he
had sufficient access to Mother to make him Child’s father. Mother and Putative
Father lived together at the time of conception and engaged in sexual relations,
and Putative Father was present when Mother took a pregnancy test, which was
subsequently confirmed by a doctor. Mother told Putative Father repeatedly that
he was Child’s father during the pregnancy, and Putative Father provided Mother
with food, shelter, clothing and medical care during the pregnancy. Putative
Father also opposed abortion and adoption options when they were presented by
Mother. Thus, Putative Father had standing to challenge paternity and request
genetic testing. Holding otherwise would deny Putative Father the right to
prove his claim of paternity and deny Child the right to develop a relationship
with his biological father. Furthermore, Mother offered no proof that would
exclude Putative Father as a potential father of Child, especially since she
told an Ohio family court in proceedings with Ex-Husband that she was not
pregnant.

 Mother was ordered to complete
genetic testing on herself and Child on four separate occasions and violated
each order. The 180 day jail sentence for contempt was completely appropriate.
Her attempts to halt Putative Father’s claims and the fact that she could have
purged the contempt by complying with the Family Court’s order was sufficient
to uphold the sentence.
Digested
by: McKenzie Cantrell, Attorney, of counsel, Diana L. Skaggs + Associates