LawyersUSA

The biological father of a child born as the result of an affair with a married woman has no standing to seek parental rights where the woman is still married, the Kentucky Supreme Court has ruled.

A man filed a petition in family court alleging that DNA tests confirmed him to be the biological father of a child born to a married woman.

The woman moved to dismiss the petition, arguing that the family court had no jurisdiction under Kentucky law because she was married and the child was therefore not born out of wedlock.

The family court refused to dismiss the petition, and an appellate court affirmed.

But the supreme court reversed.

It looked to Kentucky's paternity statute, which states: "A child born during lawful wedlock, or within ten months thereafter, is presumed to be the child of the husband and wife. However, a child born out of wedlock includes a child born to a married woman by a man other than her husband where evidence shows that the marital relationship between the husband and wife ceased ten months prior to the birth of the child. …

"By the plain language of [the statute], that chapter only applies to births out of wedlock. And it defines births out of wedlock as including births to married women where evidence shows that the husband and wife's 'marital relationship' ceased ten months before the child's birth. … [I]n the instant case, we have no allegation that [the] wife and husband's marital relationship had ceased ten months before child's birth. So [the] child does not meet the statutory definition of a child born out of wedlock, and [the statute] does not grant the family court subject matter jurisdiction or give [the biological father] standing to seek a paternity determination," the court said.

It said that amending the statute to reflect advances in DNA testing was a job for the legislature.

Kentucky Supreme Court. J.N.R. v. O'Reilly, No. 2007-SC-000175-MR. April 24, 2008. Lawyers USA No. 9939762. Click here to read the full text of the opinion.