Putative Father Lacks Standing To Assert Paternity Of Child Born During Marriage In Kentucky

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The Kentucky Supreme Court decided J.N.R and J.S.R v. Joseph O’Reilly and J.G.R, Real Party in Interest, commonly known as the “Rhoades v. Ricketts” case today, online here), an unprecedented 4-3 decision with two concurring opinions and two dissenting opinions. 47 pages in all. The opinion of the Court by Justice Minton in which Chief Justice Lambert joined held that the paternity court lacked subject-matter jurisdiction to hear the biological father’s claim for custody and visitation because KRS Chapter 406 limits its applicability to cases of children “born out of wedlock” and that term is defined by statute, when the child is born to a married woman, to paternity claims by a man other than her husband “where evidence shows that the marital relationship between the husband and wife ceased ten months prior to the birth of the child.” Since there was no allegation or proof that the marital relationship had ceased within ten months prior to the child, the Court lacked subject-matter jurisdiction. Interestingly, the Court seemed to invite constitutional challenges to the paternity statute. Although the parties to that case debated an unmarried biological father’s due process and equal protection rights, the constitutionality of the statute was not challenged nor served on Kentucky’s Attorney General. I suspect that we have not seen the end of this case.

Two concurring Justices, Scott and Cunningham, believe that the biological father’s status as a “stranger to the marriage” is the fundamental reason for the legislative language and there is no Constitutional right of a “stranger to the marriage” to assert paternity. Justice Cunningham in his separate opinion went so far as to say the “severely wounded institution of marriage in Kentucky surely protects the parties from unwanted interlopers claiming parenthood of a child conceived and born during their coverture.”

Justice Abramson wrote a brilliant opinion, but unfortunately it was a dissenting one. A full digest of the case will follow.

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