Published: Opinion Reversing and Remanding
S.B. appeals from the Scott Family Court’s dismissal of his action to establish paternity of L.R.C., a minor child born to M.C., for lack of subject matter jurisdiction.
M.C., a married woman, acknowledges she had an affair with S.B. in 2005 and that S.B., and not her husband, is the biological father of L.R.C., born in January, 2006. Since L.R.C.’s birth, M.C. encouraged S.B.’s involvement in L.R.C.’s life and S.B. immediately began providing financial support.
In March, 2006, S.B. wanted a more formal division of time-sharing and filed a petition for paternity. DNA tests confirm that S.B. is L.R.C.’s father by a probability of 99.9%. M.C. filed two answers. The first was dated April 7, 2006 and denied all allegations and requested attorney’s fees. The second answer, dated April 12, 2006 admitted all the allegations in S.B.’s petition and stated that S.B. was L.R.C.’s father.
On April 17, 2006, M.C. filed a petition stating that she and S.B. are L.R.C.’s parents and asked the court to establish custody, award child support, and establish time-sharing. In July, 2006, S.B. petitioned for temporary and permanent custody and support.
For the next two years, the parties returned to court numerous times on matters related to time-sharing, overnight visits, limiting S.B.’s use of alcohol, holidays, insurance and tax credits, and the court entered orders up to August, 2008.
On August 22, 2008 the family court sua sponte entered an order temporarily setting aside all previous orders while it considered the constitutionality of the paternity statutes. S.B. filed a memorandum in support of a custody determination, but M.C. tendered a notice of dismissal and a supporting memorandum. She argued that family court did not have jurisdiction to hear the paternity case and was without jurisdiction to establish custody.
In March, 2009, the family court issued an order denying S.B.’s motion for a custody order and granting M.C.’s motion to dismiss. The court determined that it was without subject matter jurisdiction because KRS 406.180 limits jurisdiction to children born “out of wedlock,” and cited J.N.R. v. O’Reilly, 264 S.W.3d 587 (Ky. 2008). After denial of his motion to alter or amend, S.B. appealed.
The Court of Appeals found that M.C.’s judicial admissions rebut the presumption that her husband was L.R.C.’s father, and in addition, they never challenged the results of diagnostic paternity tests. Not until the family court determined the need to evaluate the constitutionality of the paternity statutes did M.C. change her mind and argued that she had always intended to raise L.R.C. as her husband’s child.
Because the presumption that L.R.C. was born during lawful wedlock has been rebutted, family court had jurisdiction to establish paternity and determine custody. The matter was reversed and remanded to Scott Family Court for a determination of paternity and custody consistent with this Opinion.