Smith v. Garber, Ky. S. Ct., Paternity

Smith v. Garber, et al, 2009-SC-000738-MR

Issue:  Affirmed Court of Appeals denial of a writ of prohibition to enjoin family

Smith v. Garber, et al, 2009-SC-000738-MR

Issue:  Affirmed Court of Appeals denial of a writ of prohibition to enjoin family

court from ordering genetic testing.

Published:  Affirmed

County:  Jefferson


Andrew Cahill, the real party in interest, filed a suit in Jefferson Family Court seeking to establish paternity and obtain custody of T.E.S., a minor child born to Bethany Smith, the former wife of Trevor Smith.  When the trial court ordered genetic testing, the Smiths sought a writ of prohibition from the Court of Appeals, which was denied.  The Supreme Court affirmed, holding that the family court was acting within its jurisdiction when it ordered genetic testing.


Trevor and Bethany Smith were married the first time on October 26, 2002.  In December, 2003 they filed a joint petition for dissolution of marriage and alleged that Bethany was pregnant with a child of a man other than her husband.  They also alleged that they had been separated since July, 2003 and the child was conceived in October, 2003.  Their divorce was final on February 19, 2004.  They remarried on July 15, 2004 and T.E.S. was born the next day.  The Smiths were divorced a second time in September, 2007 and they were awarded joint custody of T.E.S.  Subsequently when Bethany Smith informed Andrew Cahill that he was T.E.S.’s father, he filed a petition in Jefferson Family Court to establish paternity and seeking custody of T.E.S.  This was Cahill’s first opportunity to raise the question of whether the child was born out of wedlock, because he was not informed that he was the alleged father until after the second divorce was final.


The trial court overruled motions to dismiss Cahill’s petition and ordered genetic testing to resolve the paternity issue.  The Smiths sought a writ of prohibition from the Court of Appeals, which was denied.  They appealed to the Supreme Court, urging it to find that the family court acted outside its jurisdiction.




Kentucky’s family courts have jurisdiction in all proceedings under the Uniform Act on Paternity, KRS Chapter 406, which applies to cases of birth out of wedlock.  Therefore, a petition must allege that a birth occurred out of wedlock to invoke family court’s jurisdiction under Chapter 406.  The necessary elements for determining that a child is born out of wedlock, other than in the case of an unmarried woman are (1) that the child be by a man other than the mother’s husband and (2) that there is evidence that the marital relationship between husband and wife ceased ten months before the child was born.


KRS 406.011 establishes a presumption of paternity if a child is born during lawful wedlock or within ten months thereafter.  Trevor would have this presumption, even though he and Bethany admitted that Trevor was not T.E.S.’s father in their first divorce.  The admission could have been offered in rebuttal of the presumption in the second divorce, but the question of paternity was not raised in the second divorce and the parties were granted joint custody.


Since neither party raised the paternity question in the Smiths’ second divorce action, the trial court believed T.E.S. was Trevor’s child and he was awarded joint custody.  When Cahill was informed that he was the child’s father, his only option was an original paternity action.


The two questions to be decided were (1) did Cahill have standing to bring an original paternity action to establish his paternity status and challenge Trevor’s grant of joint custody and (2) did Jefferson Family Court have subject matter jurisdiction to hear his original paternity petition when it had already vested custody in another father.


As a putative father, Cahill could bring a paternity action and the trial court had to determine if evidence was sufficient to raise the question of whether the child was born out of wedlock.  Cahill’s evidence was sufficient to invoke the family court’s subject matter jurisdiction, and the family court judge, having found that she had jurisdiction, ordered paternity testing to establish biological paternity.


The second jurisdictional question is whether there has already been a paternity determination since joint custody was awarded to the Smiths.  Unless that judgment is modified according to law, the Smiths are the child’s legal parents.


The Supreme Court held that biological parents who are deprived of parenting through no fault of their own cannot be prevented from pursuing a paternity action even if joint custody has already been granted.


Jefferson Family Court had jurisdiction to determine Cahill’s paternity claim and the Court of Appeals’ denial of a writ of prohibition is affirmed.


Digested by Sandra G. Ragland, Diana L. Skaggs + Associates


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