Nature or Nurture: Should Genetic Test Results Be Admissible To Rebut The Presumption Of Paternity?

John and Mary were a typical couple. Married for twelve years, they had an eight-year-old son, John, Jr. John had been ecstatic when Mary became pregnant and enthusiastically participated in the prenatal preparations. He attended Lamaze classes with his wife and converted his den into a nursery. He coached Mary in the delivery room and cut the umbilical cord. John's name appeared on the birth certificate as the father of the boy, who was named John, Jr. The father sleepily delivered his share of middle-of-the-night bottles and developed his diaper-changing skills. As the boy got older, Dad taught him to ride a bicycle, bait a hook and throw a baseball overhand. John coached peewee baseball teams and taught Sunday School classes. Father and son shared a deep emotional bond. John knew the marriage wasn't perfect, but the couple had never been separated and he never suspected she had been unfaithful. He was stunned when Mary announced she was leaving and was filing for divorce. He was even more surprised by her parting shot: "And by the way, you're not Junior's father!" John was about to discover that under Kentucky law, he could be relegated to the sidelines of his son's life and designated a" legal stranger" to the child he had nurtured since birth.

The presumption that a woman's husband is the father of children born into a marriage is one of the

oldest known to law. In Kentucky statutes, the presumption is codified at KRS 406.011 which provides "[a] child born during lawful wedlock, or within ten (10) months thereafter, is presumed to be the child of the husband and wife." Only if there is evidence that the marital relationship between husband and wife ceased ten months prior to the child's birth will the child be considered born out of wedlock. The proof of the husband's non-access to his wife or of his impotence must be "proof beyond a reasonable doubt and ...of a higher degree than that required to convict a person of even a minor criminal offense." Williams v. Williams, Ky., 223 SW 2d 360 (1949).

Recent advances in genetic research have made it possible to produce an extremely high degree of proof of paternity, proof that is beyond a reasonable doubt. Chapter 406 of the Kentucky Revised Statutes is the Uniform Act on Paternity. Its purpose, according to OAG 79-635, is "to afford the mother a remedy to compel the putative father to contribute to the support of his illegitimate child." The authority for blood tests is found in KRS 406.081. It is buttressed by Civil Rule 35.01 which permits the court to order a party to submit to a physical or mental examination if good cause is shown. According to OAG 79-635, when a man moves the court to order blood tests, the court must grant the order, but when the mother makes the request, granting the order is discretionary with the court. Using this rationale, a trial court may refuse to order genetic testing when the purpose is to exclude a presumed father, if there is insufficient evidence of non-access or impotence.

Tests which definitively identify the father of a child or which exclude an individual as the father are formidable weapons in the battle for truth. When they are used, however, to disestablish paternity of a husband whose adulterous wife has deliberately encouraged him to believe that he is the father of a child born to the marriage, they take on the character of a blunt instrument. In the hypothetical example of John and Mary above, for example, a court may order John to submit to genetic tests. If the result excludes him as Junior's father and is admitted into evidence, John could be denied standing for the purpose of determining custody and possibly even denied parenting time. This is obviously an absurd result which, as we all have argued, legislators never intend.

The arguments in favor of forcing John to submit to genetic testing are logically unsound. For instance, there is the position that testing is necessary to establish Junior's inheritance rights. The only knowledge to be gained in this situation is that John is not Junior's biological parent but it does not tell the court who is the father. Additional litigation would be required to determine the identity of the biological father and the success of that venture would depend on whether the mother knows who he is, where he is located (if he is alive) and how vigorously he defends the charges. In the meantime, Junior would have no inheritance rights at all! It could be argued that Junior has a right to an accurate genetic profile and in a perfect world, perhaps he would. There are, however, many people who have absolutely no information about their genetic heritage and they suffer few, if any, ill effects. The questionable value of Junior's genetic history is not commensurate with the irreparable harm to the parent-child relationship if it turns out that John is not his biological father.

The "de facto custodian" provisions of KRS 403.270 grant standing in custody matters to third parties who meet certain qualifications. The extremely narrow language, which requires parties seeking such standing to provide clear and convincing evidence that they were the primary caregiver for the child and the primary source of financial support, creates a nearly insurmountable barrier for an individual who has participated as a co-parent in an intact marriage.

The solution to this question lies in strict adherence to the presumption set out in KRS 406.011. Unless there is proof of non-access or impotence beyond a reasonable doubt that is of a higher degree than that required to convict a person of even a minor criminal offense, no genetic tests should be ordered by the court over the father's objection. In the absence of such proof, the inquiry should end. Custody matters should then be resolved in a manner that serves the best interests of the children. This limitation on the court's power to order genetic testing should be added to KRS 406.111.

The Legislature could offer an additional safeguard by revising the language of the de facto custodian statute to create an exception for a father in an intact marriage whose paternity is not called into question until a dissolution action is filed.

If the purpose of Chapter 403 of the Kentucky Revised Statutes as set out in section 110 is to truly "[s]trengthen and preserve the integrity of marriage and safeguard family relationships," then it is incumbent upon lawmakers, judges, and officers of the court to prevent the opportunistic abuse of genetic testing technology.

Written by Sandra G. Ragland, Diana L. Skaggs & Associates, and first printed in the Louisville Bar Briefs.