Michael Stevens of Kentucky Law Blog comments:Family law is tough because the choices hard, the emotions high, and the consequences grave for all concerned.
First, the mother presumably knows or would have reason to suspect the paternity of the child is not conclusive just because of the presumption of conception during wedlock.
Second, allowing that presumption to continue to thrust obligations and responsibilities on the non-biological dad also allows for the creation of an emotional attachment that goes both ways with the child and the non-biological father.
Third, the Kentucky decisions thus far have their blinders on by simply analyzing it as the dealings with mom and non-biological dad such that the presumption exists until rebutted, and if there is a paternity action by the mom against the non-biological dad or during the divorce then the resultant decree constitutes res judicata on these two people as to the parentage. And, it is not uncommon for the non-biological dad to acquiesce or not challenge the determination. A creation of legal rights and responsibilities upon which the child has no input.
Fourth, this happy little deception then can go assunder when the truth is outed and the non-biological father has been the victim of a fraud, and the biological dad has been the victim of a deceptive silence.
Now, legally speaking the focus has always been on the relationship between the mom and non-bio dad as to support and custody issues as they relate to the three. Since the paternity action or divorce action may constitute a determination of the custody and support issues relative to mom and non-bio dad, it is not necessarily a legal 'termination' of the biological dad's status as the bio-dad as may be the case in an adoption. Since bio-dad was never aware of his child, it can't be said he is estopped or has otherwise waived his parental status over that child, and thus any actions by mom (either one-sided or collusively with the non-bio dad) are not binding on bio-dad (eg., a wrongful death action?).
This outing of the real paternity is a devastating situation for all concerned, but as Todd Bolus suggests should a DNA test be de rigeur in all legal actions which possess legal determinations of paternity (eg., divorce, custody, paternity, etc actions)? The upside is a medically conclusive determination greater than the law's presumption of paternity. The downside is the outing of an issue which can affect multiple families, parents, step-siblings, etc.
However, the facts are what they are with few divorces having no emotional trauma for those concerned.
Although Kentucky's courts have recognized that these divorce and paternity proceedings have more legal baggage than what we usually encounter, they have not ventured into that area yet. For example, non-bio dad and mom may allow the fiction to function, but sooner or later the child has rights and is entitled to know his or her 'real' father. Furthermore, any decision by the putative parents to 'off' the bio-dad should not be binding on the bio dad. What if the child dies and there is a wrongful death action? There can only be one father, and which one is it? And what if the child has step-siblings through the bio-dad? A tangled web we weave once we start to deceive.
And by "off", I do not mean a fatality but simply removing him legally, emotionally, geographically, and knowingly.
Hard facts make hard decisions, but they do not get any less hard as time goes by, they simply get ignored.
Editor's note: The notion that a child can only have two parents is subject to debate: Legal Rights Of Three Parents Over One Child Recognized By Ontario Court of Appeals