Ky Court of Appeals Published Opinion: Paternity, Estoppel, Superior Right to Child Custody,Psycological Parent, Recusal


Mother gave birth to child and held out that her husband (hereinafter “Miller”) was the child’s father. She later told natural father (hereinafter “Penticuff”) that he was the child’s father. DNA testing confirmed that Penticuff, not Miller was the child’s father, although Miller paid child support and shared joint custody of child. The trial court held that Penticuff was the natural father and had waived his superior right to custody and that Miller had no legal claim to custody or visitation with the child. Both Penticuff and Miller appealed.

Penticuff first argues that the trial court erred by finding he waived his superior right of custody. The Court of Appeals holds that there was not “clear and convincing evidence that Penticuff knowingly, intelligently, and voluntarily waived his superior custody right.” Penticuff’s general awareness that he could be the child’s father was not enough to establish a knowing wavier of his rights when Mother told him he was not the father and held out Miller as the father. As soon as he learned he was the father, Penticuff took action to establish paternity. Thus, the Court of Appeals reverses and remands the trial court’s ruling.

Penticuff next argues that the trial court erroneously admitted a prior statement in violation of KRE 613. The Court of Appeals does not take up this issue as they are reversing and remaining the trial court’s ruling on waiver rendering any error harmless.

Penticuff last argues that the Judge who presided over the hearing erroneously recused himself. Ultimately, a different Judge entered the final rulings. The Court of Appeals finds no fault with the recusal as it was based on ex parte communications and the Judge her or himself is in the best position to determine if recusal is appropriate.

The court then turns to Miller’s appeal. Miller first argues that Penticuff’s wavier conferred parental rights to him. As the Court of Appeals reversed and remanded the ruling on waiver, the issue is moot.

Miller next argues that the trial court erred by concluding that Mother did not waive her parental rights. The Court of Appeals upholds the trial court’s ruling holding that the testimony and the hearing supported the trial court’s factual findings and the court correctly made conclusions of law using the correct standard for waiver.

Finally Miller argues that the child has an “independent, cognizable legal right” to maintain a relationship with him as the psychological father relying primarily on the doctrine of paternity by estoppel. The Court of Appeals holds that Miller cannot use the doctrine of paternity by estoppel, which is used to protect children from the cessation of support by a nonparent who has held themselves out as a parent, against a child’s biological parents. The Court of Appeals affirms the trial court’s order on this issue.

Digested by Elizabeth M. Howell


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