Kentucky biological dads who learn after a divorce that, in fact, a child is their biological child and not the ex-husband's child have the opportunity to establish parentage through DNA testing, according to a new decision in the Kentucky Supreme Court. Diana Skaggs reported on Smith v Garber today on her blog Divorce Law Journal today.
The facts are kind of complicated, which seems some days to be the norm in a family law practice. Skaggs reports that
"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 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.
The Kentucky Supreme Court decided that 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. According to the court, Cahill’s evidence was sufficient to invoke the family court’s subject matter jurisdiction, and the family court judge,could order 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.
The result would certainly have be en different had this been a Michigan case. You can read about Michigan paternity law here.
You may read the Divorce Law Journal article here.
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