J.A.S. v. Hon. Lisa O. Bushelman, Judge, Ky. S. Ct., Paternity, Subject Matter Jurisdiction, and Standing of Putative Father

J.A.S. v. Hon. Lisa O. Bushelman, Judge

Kenton Circuit court and C.H.E., Real Party in Interest


Published:  Affirming

County:     Kenton

J.A.S., the mother of infant N.R.S., appeals as a matter of right from a decision of the Court of Appeals denying her petition for a writ of prohibition.  She sought the writ to bar Judge Bushelman from adjudication of an action filed by C.H.E. to determine the paternity of N.R.S.

 The Court of Appeals declined to grant Appellant’s petition and affirmed Judge Bushelman’s conclusion of law that N.R.S. was born out of wedlock, because Appellant’s extra-marital affair constituted a cessation of her marital relationship more than ten months before N.R.S.’s birth.  Therefore, under KRS 406.011, the trial court had subject matter jurisdiction.

The specific question is whether the paternity of a child born to a married woman, who throughout the relevant period maintained a sexual relationship with her husband, may be adjudicated in Kentucky courts upon the petition of a man who, by the apparent results of a DNA test, is virtually certain to be the biological father of the child.

J.A.S. and C.H.E. were involved in a secret affair from August, 2007 until March, 2008, although J.A.S. continued to have sexual intercourse with her husband.  In September, 2008 J.A.S. gave birth to N.R.S. and two weeks later she and C.H.E. arranged for a DNA test to determine if he was the father of N.R.S.  When the test revealed a 99.9429% probability that he was the father, C.H.E. expressed a desire to acknowledge the child and J.A.S. informed her husband of the affair.

In October, 2008, C.H.E. filed a paternity action pursuant to KRS Chapter 406.  In her response, J.A.S. denied that C.H.E. was the father and affirmatively pled that the Court lacked SMJ and that C.H.E. had no standing to assert his paternity claim.  She moved to dismiss the paternity action, relying upon the lead opinion in J.N.R. v. O’Reilly, 284 S.W.3d 587 (Ky. 2008).

The Court of Appeals discussed the J.N.R. case and held that because less than a majority agreed on the reasoning for the decision it should not be cited as a holding of the Court and to the extent that J.N.R. is perceived or deemed to have binding precedential authority, it is overruled.

The trial court, guided by J.N.R. concluded that it had SJM per KRS 406.011.  J.A.S. filed an original action in the Court of Appeals for a writ of prohibition, which CA denied.  The Supreme Court affirmed Court of Appeals, although on other grounds.  The Supreme Court concluded the Trial Court had SMJ under KRS Chapter 406.051 and 406.180, and C.H.E. had standing because he is a putative father authorized under KRS 406.021 to file a complaint to have paternity determined.

The Supreme Court engages in a lengthy discussion of Kentucky law regarding paternity, presumptions, and proof, as well as recent developments in genetics and DNA analysis.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.