Published: Opinion Vacating and Remanding
J.P. appeals an Order of Pulaski Circuit Court denying his petition to establish paternity, custody, visitation, and child support.
J.P. and S.B.B. had an affair that lasted several years, from approximately 2001 until 2007. S.B.B. was married the entire time and sexually active with J.P. and her husband. S.B.B. gave birth in January 2004 to T.C.B. and J.P. was involved in the child’s life until S.B.B. ended the affair in 2007. When S.B.B. terminated his visits, J.P. filed a petition to establish paternity, custody, visitation, and child support in July, 2009. In September, 2009, J.P. filed a petition for genetic testing to establish paternity.
The Pulaski Circuit Court held a hearing in November, 2010 and entered its findings of fact and conclusions of law in February, 2011. The trial court found that since the marital relationship between S.B.B. and her husband had not ceased during the ten month period preceding the birth of T.C.B., that J.P. lacked standing to pursue a paternity action and further held that it did not have subject matter jurisdiction.
Standing is defined as a party’s right to make a legal claim or seek judicial enforcement of a duty or right, and the requirement is met if the party has a real and substantial interest in the subject matter of the litigation. Whether a party has standing is determined by the facts of the case.
The trial court relied on J.N.R. v. O’Reilly, 264 S.W. 3d 587 (Ky. 2008) which focused on the date the marital relationship ceased. The legal presumption was that a child born to a married woman was the child of her husband unless evidence shows the marital relationship ceased ten months before the child’s birth.
Several months after this case, the Supreme Court overruled O’Reilly in J.A.S. v Bushelman, 342 S.W. 3d 850 (Ky. 2011), and shifted the legal analysis away from the status of the woman’s marriage and instead scrutinized whether the woman’s lover presented sufficient evidence to support the possibility of a paternity claim. Because Bushelman superseded O’Reilly, the Court of Appeals held that J.P. had presented enough evidence to proceed with his paternity claim. Accordingly, pursuant to the more recent authority set forth in Bushelman, the order of the trial court is remanded for additional proceedings.