Re: What's a father? Ky. Supreme Court has its say
- From: "rdubose@xxxxxxx" <rdubose@xxxxxxx>
- Date: Fri, 2 May 2008 03:14:55 -0700 (PDT)
On May 2, 2:42 am, "dd...@xxxxxxxxxxxxx" <dd...@xxxxxxxxxxxxx> wrote:
What's a father? Ky. Supreme Court has its say
By Andrew Wolfson • awolf...@xxxxxxxxxxxxxxxxxxx • April 25, 2008
A man who fathers a child during an affair with a married woman has no
legal rights to fatherhood, the Kentucky Supreme Court ruled yesterday
in an important decision on the legal status of marriage.
In a 4-3 vote, a deeply divided court upheld the presumption that a
child born to a married woman living with her husband is a child of
the marriage.
"While the legal status of marriage in this early 21st century appears
to be on life support, it is not dead," Justice Bill Cunningham wrote
in a concurring opinion. He wrote that married couples have a right
"to be left alone" from the claims of "interloper adulterers."
The court ruled in favor of a Louisville couple, Julia and Jonathan
Ricketts, who had sought to block James Rhoades Jr. from trying to
establish paternity of a child he allegedly fathered during an affair
with Julia.
Rhoades, of Tallahassee, Fla., who had said he hoped to raise the
child jointly with his mother, said in a phone interview that he was
"heartbroken" by the ruling.
"I want to be a part of my son's life, and now he will never know who
his father is," said Rhoades, who hasn't seen the child for about a
year.
"I understand that his mother is married and that her husband is his
stepfather," Rhoades said. "But I am his family too and it seems to me
that the rights of the biological father should be as important as
those of the biological mother."
Julia and Jonathan Ricketts referred questions to their lawyer, Louis
Waterman, who said his clients were "very, very relieved."
"As we have said from the beginning, our sole interest was to protect
the child," Waterman said. "Family law is designed to do that, and I
am grateful the Supreme Court did that today."
According to one of the dissenting opinions, 33 states allow a man to
challenge the presumption that a child born to a married couple is the
husband's.
The case fractured the Kentucky court -- five of its seven justices
wrote their own opinions.
The two justices who signed the majority opinion, John D. Minton Jr.
and Chief Justice Joseph Lambert, ruled on narrow jurisdictional
grounds. But Cunningham, concurring with the majority, called for a
more emphatic defense of marriage.
"We are in need of a bold declaration that the marriage circle, even
with an errant partner, will be invaded at one's own legal risks," he
said. "The severely wounded institution of marriage surely protects
the parties from unwanted interlopers claiming parenthood of a child
conceived and born" during the marriage.
In dissent, Justice Lisabeth Hughes Abramson said the majority had
erred "grievously" in deciding that the father of a child "is the man
married to the mother" rather than the man who "who provided half the
child's genetic makeup."
"Our world is full of inconvenient truths," Abramson wrote. "We
accomplish nothing for families, the broader community and our justice
system when we deny those truths."
She said there could be both medical and psychological consequences
for the child if he didn't know the truth about his genetic
background. She also wrote that giving men a legal right to claim a
place in the child's life would strengthen marriage by discouraging
women from straying.
Rhoades' co-counsel, John Helmers, said his client would ask the court
to reconsider its ruling or try to appeal in the federal courts.
"The law is supposed to be a search for the truth, and here, the
Supreme Court put its head in the sand," he said.
The ruling identified the parties by initials only, but they were
previously named in pleadings filed by Rhoades.
In court papers and interviews, he said he was a graduate student in
2005 when he met Julia Ricketts in Florida, where she was living with
Jonathan Ricketts, a Navy officer stationed in Pensacola.
Rhoades said in pleadings that after Julia Ricketts gave birth to a
son in June 2006, a DNA test showed that Rhoades was the father.
For three months, Julia Ricketts allowed Rhoades to visit the infant
at least a dozen times in Louisville, and Rhoades provided diapers,
formula and clothing for the child, Rhoades and Helmers have said. The
visits were kept secret from Jonathan Ricketts, Helmers said.
In August 2006, when the relationship between Rhoades and Ricketts
ended and she refused to let him see the baby anymore, Rhoades went to
court and demanded custody.
The Rickettses asked Family Court Judge Joseph O'Reilly to dismiss the
case, citing the marital presumption.
In an interview last year, Julia Ricketts said she and her husband cut
off communication with Rhoades in part so they could try to repair
their marriage.
O'Reilly ordered a paternity test, and the state Court of Appeals
rejected the Rickettses' petition to dismiss the case. The Supreme
Court reversed yesterday.
Diana Skaggs, a Louisville lawyer who is president of the Kentucky
chapter of the American Academy of Trial Attorneys, said the majority
opinion defies common sense.
"If a child carries the DNA of a man other than the husband, it is
common sense that the child is not born of the marriage," she said.
She noted that Cunningham "fumes about the morality of it all" and
calls the man an "interloper" yet "declines to judge the wife's
infidelity."
She said Kentucky could address the issue raised in the case by
adopting what is known as the Uniform Parentage Act, a model set of
laws, which has been endorsed by both the American Academy of
Matrimonial Lawyers and the American Bar Association.
Minton and Lambert held that paternity can be decided only for
children born out of wedlock, and in Kentucky, that includes only
children born to unmarried parents or where "the marital relationship
ceased 10 months before the child's birth." The law dates back to
before DNA testing, when it was difficult to determine paternity, they
said.
Justices Cunningham and Will T. Scott concurred in the result, but in
dissenting opinions said the court should have specifically held that
only parties to the marriage can challenge the presumption that the
child is legitimate.
Justice Wil Schroder joined in Abramson's dissent, and Justice Mary
Noble wrote her own, saying Rhoades should have been able to present
his case in court, even if he might not have been able to prevail.
Reporter Andrew Wolfson can be reached at (502) 582-7189.
The legal issues can be argued both ways and forever, as they often
are. On the other hand, the kid will surely find out sooner than later
and the impact of that cannot be undone. I mean, the toothpaste is out
of the tube and cannot be put back inside, for this particular
situation and for society in general. A totally effective paternity
test now costs 30 dollars retail. Medicine in the future - the very
near future - will be focused on genetics and family history and so
true paternity is not going to be overlooked or ignored. Fatherhood
used to be a social construct because that was all we had to go on,
not because biological fatherhood did not matter to people.
Indeed, it is human nature for everyone to care deeply about true
parenthood. Literature and mythology is filled with stories about
heroes and heroines whose fate is driven by having a surprising
background the discovery of which clarifies their whole lives and
helps in their redemption.
.
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