Kentucky Supreme Court: Man Who Has Affair With Married Woman Can Assert Paternity

Last week, the Kentucky Supreme Court ruled that a man who has an affair with a married woman can assert a claim of paternity of a child conceived in the relationship.

This case, and some of the controversy surrounding it, demonstrates what I believe to be a somewhat irrational attitude toward marriage held by politicians and, sometimes, the courts. To be clear, I think that the court made the right decision, but some of these attitudes are illustrated in a dissenting opinion.

It’s true that this case represents a major departure from the traditional common law, which typically assumes that a child born to a married woman is the biological child of the woman’s husband. The law would typically stick to this assumption against virtually all evidence. Of course, this rule is a product of its times: it was devised hundreds of years before DNA testing came into existence, and even before less-precise methods of determining paternity (or at least narrowing down the pool of potential fathers), such as blood type testing, were available. As the majority points out, the assumption that a child born to a married woman is a “child of the marriage” arose in a time when very little could be done to determine paternity. The most scientific way of determining paternity was to have a bunch of people decide which supposed father the child most resembles.

Furthermore, the common law developed in an extremely conservative society, when having children out of wedlock was a huge social taboo, stigmatizing both the mother and the child. If a child was declared illegitimate, he or she would be discriminated against, and denied a place in “decent” society. Also, paternity was almost always contested by the mother’s husband, in an attempt to prove that the child is not his, in order to disavow parental responsibility to the child.

It made sense, then, that the common law courts would prefer to simply assume that every child born to a married woman is a child of the marriage.

However, we don’t live in 16^th-Century England anymore. We live in an era in which we still place a high level of importance on the institution of marriage, but are also OK with acknowledging the simple fact that not every marriage works. Furthermore, in this era of DNA testing, we can determine a child’s paternity (or at least rule out potential fathers, if the actual biological father is not available for testing) with over 99% accuracy. And we’ve also moved beyond demonizing a child based solely on the circumstances of his or her conception.

Also, only fairly recently would a man contest the paternity of a child, not to prove that he is not the father and disavow parental responsibilities, but to prove that he is the father, in order to voluntarily assume those responsibilities. The fact that this has become more commonplace can only be considered a positive development, in the scheme of things.

Nonetheless, situations still come up where the paternity of a child is contested. The question faced by the court here was whether or not anyone could question the paternity of a child born to a married woman, and if so, who.

The court held that there is a still a strong presumption that a child born to a married woman was fathered by her husband. However, it made clear that this presumption can be rebutted with sufficient evidence to the contrary. It held that the presumption is so strong, that evidence to the contrary must amount to proof “beyond a reasonable doubt” which is the highest standard of proof available in the law, and reserved almost exclusively for criminal cases. Its use in family law cases, such as this one, is extremely rare, illustrating just how important the presumption of legitimacy is. Generally, only a DNA test will present sufficiently strong evidence to overcome this presumption.

I believe that this high standard is justified, and contesting the paternity of a child born to a married woman should be fairly difficult. After all, the marital relationship is still very important, and outside interference is not something the law should abide lightly.

Having said that, the interest of the biological father in being involved in his child’s life, and the interest of the child in knowing his or her biological father, must also be considered, and weighed against the couple’s interest in not having their marriage disturbed.

I think the rule articulated by the Kentucky Supreme Court, that paternity in these cases must be proven beyond a reasonable doubt, is a sound one. Furthermore, before the question of paternity can even be reached, a putative father should first have to present some evidence that it’s actually possible for him to be the father – including evidence that he and the mother had a sexual relationship during the relevant time, and evidence that he is medically capable of fathering children.

To put it simply, courts need to respect the marital relationship, but they also need to be realistic about the fact that no marriage is perfect.