In the recent case of Tucker v. Tucker, the Kentucky Court of Appeals addressed this very issue.  In that case, a wife had a child just a few months after her marriage to the husband.  A few years later, the parties started divorce proceedings and a child support case was initiated.  Despite being listed as the father on the child’s birth certificate, DNA testing proved that the husband was not the child’s biological father.  Even after the parties’ divorce, the stepfather remained very close with the child.  They continued to call one another “father” and “son,” stayed in regular contact, and the husband provided financial support for the child.  At no point did the stepfather adopt the child.  The child claimed that he did not learn the truth about the paternity issue until after he reached adulthood, but even after discovering this information, he continued to call the man “father.”  When the stepfather died without a will (under the law, this is called “intestacy”) years later, the child attempted to pursue a share of the inheritance from the stepfather’s estate.

The child argued that despite the lack of a biological link between the two, the stepfather should be considered the child’s actual father for purposes of inheritance.  The child argued that because they maintained such a tight bond, the stepfather was on the child’s birth certificate, and because he was born during the parties’ marriage, he should still be entitled to a share of the estate.  The administrator of the estate disagreed due to the results of the DNA test.

Kentucky law is clear that a child born during a lawful marriage or within ten months of the divorce of the parties is presumed to be the child of the husband.  The key language here is that this is merely a presumption, meaning it can be refuted by other evidence.  This most commonly comes in the form of a DNA test done in the contest of a paternity case brought for child support purposes.

In this case, the determination that the stepfather was not the child’s biological father established that fact for any and all future purposes, including when an individual dies without a will.  Simply put, the results of a paternity test will dictate the outcome of any future legal matter that depends on paternity.  The Court of Appeals was very clear that in order to inherit, the child would have needed to be adopted by the stepfather.  The procedures for this are very complicated and must be followed to the last detail for it to be valid.  Since an adoption did not occur, the Court ruled that the child was not entitled to a share of the stepfather’s estate.

Issues like this can be avoided.  In any situation where there is any doubt whatsoever as to the identity of a child’s father, it is important to seek legal advice.  The attorneys at Goldberg Simpson, LLC can advise you as to the impact on child support and related matters when it comes to having paternity established via DNA testing.  We can also discuss with you how an adoption works and the impact it would have on your family.  Finally, we can explain how family law intersects with estate planning and probate law so that you can make the best decisions for the wellbeing of your loved ones.

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The recent Kentucky Supreme Court case of Cabinet for Health and Family Services v. H.L.O. provides a great example of how complicated these cases can be. In that case, a mother gave birth to a child and both the child and the mother tested positive for drugs immediately after the birth. The child was removed from the mother, who was then given a case plan to work in order to have her child returned to her. Throughout the case, the mother struggled with continued drug use. Eventually, the court did what is called a “goal change.” This is when the court changes the goal of the case from “return to parent” to having the child adopted after that parent’s rights are terminated.

The Cabinet for Health and Family Services filed a petition to terminate the mother’s rights. The Cabinet presented evidence that it took the mother a very long time to work her plan and continued to struggle in various ways. The mother was able to present evidence that she had made significant progress in her sobriety and living situation. Also, the mother maintained custody of two prior born children and was able to care for them. In the end, the family court terminated her parental rights. The Supreme Court agreed.

In termination cases, the court must follow a very strict set of laws that dictate when a termination is proper. Failure to adhere to this procedure would provide a basis to have a termination reversed on appeal. The laws on the subject are very complicated and there are many ways an error could occur. An experienced attorney is able to keep a close eye on whether the Cabinet and the court have made any errors that would be beneficial to the client’s case. Also, the facts in these cases can sometimes lead to situations where it is a close call for a court to decide whether to terminate or not. A skilled attorney can highlight the positive aspects of your case and fight back against the Cabinet’s allegations in order to maximize your chances of success.

It is also worth noting that termination of parental rights can have an impact on future cases. Specifically, if a parent has an involuntary termination of parental rights in a past case, it makes it easier for the rights to a future child to be terminated. In circumstances where a parent has little to no chance of success, the parent should discuss with their attorney the benefits of voluntarily terminating his or her parental rights to prevent this.

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