25 May 2011

Parental Rights For The Other Man

Men who father a child during an affair with a married woman have the right to seek a role in the child's life, the Kentucky Supreme Court has ruled [4-3]. In an emotionally charged decision that critics say will undermine marriage, the court reversed centuries of common law and its own 2008 ruling that held such children are presumed to be the offspring of the woman and her husband.

From here referring to this ruling.

The only think I find surprising about the result on the merits, once paternity has been established notwithstanding the non-conclusive presumption that children are the offspring of the woman and her husband, is that it was so controversial, and an examination of the opinion reveals that the issue framed by the newspaper in the quote above wasn't the real issue before the court anyway.

The common law presumption of paternity in a marriage couple is centuries old, but that presumption has rarely been interpreted as being a conclusive one and has very rarely been applied in cases where it is obvious at birth (e.g. because a child is of mixed race or the husband was away at sea or at war for the entire period when the child could have been conceived) that the child is not the genetic offspring of the mother's husband. Usually, people don't look beyond the presumption and there is no duty or expectation that married couples will affirmatively establish whether or not husbands are cuckolds, even were there are good reasons to be suspicious. In the absence of scientific testing in cases of same race fathers, where the wife continued to have sex with the husband during the affair, however, which made up most of the cases when the common law presumption was developed, there was no reliable evidentiary way to overcome the presumption, and a version of this common law approach that captured the effect of this rule but not the reasoning behind it was codified into the archaic laws of Kentucky.

So, the real controversy in the Kentucky case (notwithstanding the spin given to it by the newspaper quoted above) for five of the seven judgges was really over whether the presumption of paternity in the case of a married couple was conclusive or merely evidentiary, given the archaic language of Kentucky's family law statutes that replaced the common law in this area of law. Kentucky's past precedents which were less than clear on the issue because a 2008 decision on a similar issue produced a consensus on the outcome but not on the legal justification for that outcome. The statute gives courts jurisdiction over paternity matters in cases of children "born out of wedlock." One past interpretation of that statute reached this result by reasoning that an affair interrupted "the marital relationship" even in the absence of a divorce or physical separation, by breaking the vow of monogamy. The Kentucky Supreme Court this week took a more direct approach, holding that defines the term "born out of wedlock" in relation to a child to refer to "a child whose mother, married or not, is not married to the child's biological father" without regard to the condition of the mother's marriage.

The new rule will make it unnecessary to procure in future legal proceedings of this kind the kind of evidence considered by the trial judge in this case to the effect that:

Appellant married R.S. on October 9, 1999. They have lived together ever since. They slept in the same bed, regularly engaged in sexual intercourse, and prior to 2008 had one child, whose paternity is not at issue. From August 2007 through the spring of 2008, Appellant was involved in an intimate and secret affair with Real Party In Interest, C .H .E., who was also married but was in the process of divorce. Appellant and C.H .E. had sexual intercourse on numerous occasions between October 2007 and March 2008. Throughout the affair, however, Appellant and her husband continued having sexual intercourse on a regular basis.

According to Appellant, the affair began because her marital relationship was troubled. She professed her love to C.H .E. and told him that she wanted to leave her marriage to be with him. He professed his love for her. She lied to her husband about her whereabouts when she was with C .H .E ., and she lied about the reason his phone number often appeared on her phone bill.

In early 2008, Appellant discovered she was pregnant. By March of 2008, she decided to end the illicit affair, but admits that she did not clearly communicate that to C .H.E . Instead, she continued to have frequent, nonsexual contact with him. She met some of his family members and kept him informed about her prenatal medical care: Appellant's husband remained unaware of the affair. He testified that had they not been having regular sexual intercourse, her pregnancy would have been a "huge problem" that he would have addressed immediately.

On September 8, 2008, Appellant gave birth in Kentucky to a baby girl, N.R.S. Two weeks later, she and C .H .E. arranged for a DNA test to determine if he was the father of N.R.S. The DNA test revealed a 99.9429% probability that C.H .E . was the baby's father. When C.H.E. expressed a desire to acknowledge his daughter and to be a part of her life, Appellant informed her husband of the affair.

On October 14, 2008, C.H.E. filed a paternity action in the Kenton Family Court pursuant to KRS Chapter 406.

After this decision of the Kentucky Supreme Court, everything in the recitation of facts set forth above that is not in bold would have been excluded from testimony on the grounds that it was not legally relevant. Like "no fault" divorce, this innovation will save the husband, mother, genetic father, lawyers and judge hours of uncomfortable testimony about the sex lives and feelings of married couples and adulterers, will bring increased certainty to the law, will fit more squarely with modern views of what is just and fair, and will generally dispense will court hearings on that issue of paternity entirely - the real trial will take place in some genetic testing laboratory based entirely on scientific principles that are far more reliable than court testimony in this situation, rather than the ordinary court evidentiary process.

The notion that someone who is an established parent of a child is entitled to participate in the parenting of that child, absent of finding of unfitness, is a bedrock principle of family law in every U.S. state and probably has constitutional dimensions at this point. Also, given that it is common place in modern society for people who are not married to each other and may each be currently married to other people to co-parent a child, it is not as if this situation poses any special difficulties for family courts or societal institutions that deal with parents and children to handle.

What did the dissenting judges say?

The Chief Justice's dissent was lawyerly, and addressed the conclusiveness of the presumption, stating in the pertinent part:

The General Assembly could have adopted substantially the same
definition by incorporating into KRS 406 .011 the language proposed by the drafters of the Uniform Act on Paternity (1960) : "[a] child born out of wedlock includes a child born to a married woman by a man other than her husband." But it chose not to; instead, it explicitly "includes" in KRS 406.011 "a child born to a married woman" as a child born out of wedlock only "where evidence shows that the marital relationship between the husband and wife ceased ten (10) months prior to the birth of the child ." See J.N.R., 264 S .W.3d at 590-91. And while use of the term includes might otherwise signal an illustrative rather than exhaustive term, I believe that the legislature's refusal to adopt the broad definition proposed by the Uniform Act on Paternity draft evinces a clear legislative intent contrary to the majority's interpretation. Given that KRS 406.180 states that KRS Chapter 406 only applies to births "out of wedlock" and that the legislature chose not to adopt the definition of born out of wedlock that the majority adopts today, I do not agree with the majority that the trial court had subject matter jurisdiction simply because a paternity action was purportedly filed under KRS 406.021.

Perhaps changing mores and the advent of DNA testing call for a
different approach than the one the legislature chose in decades past . If so, the legislature should undertake that broad policy debate. But I do not believe it is proper for this Court to amend the statutes by construing them in a manner contrary to the legislature's clear intent.

The Chief Justice does not engage, perhaps because it was not adequately briefed, or perhaps because the dissent was a lost cause anyway, the constitutional argument that his proposed reading of the statute denies the father of the child a constitutional right to be recognized as a parent and to be involved in the parenting of his child absent abuse or neglect.

The other two dissenting justices on the Kentucky Supreme Court wrote a short opinion that was weak on the law, weak on the facts and classic cases of pounding on the table with characteristic Appalacian bluster and evangelical moral outrage. They also raise another issue. In their view, the problem is not necessarily that the presumption that a man married to the mother is conclusive, but that a challenge to that presumption can be raised by someone other than the man married to the mother. Thus, they want to allow a cuckolded man to have the right to challenge paternity, but also the right not to have the paternity of children of his wife, whatever their genetic ancestry may actually be, contested by "the other man." They state in their short opinion:

We vigorously dissent under the same banner for which we wrote in J.N.R. v. O'Reilly, 264 S .W.3d 587 (Ky. 2008). In essence, we hold strongly that only partners to marriage have the standing to question the legitimacy of children born during their marriage. Interlopers cannot use their own adulterous behavior as a license to invade and disrupt the matrimonial circle. The majority here deals with only one child. We speak for the thousands of children yet unborn . For centuries, the institution of marriage has "been the rock in the shadow of which children are born, shaded, protected, and nurtured." Id. at 599 (Cunningham, J., concurring in result only). Our extended comments in the J.N.R. case will be left to speak for our refusal to stand quietly by as the legal institution of marriage is surrendered to the funeral pyre of modern convenience and unanchored values. We refuse to bow down to the "Gods of the Market-Place ." RUDYARD KIPLING, THE GODS OF THE COPYBOOK HEADINGS (1919) . Who is right and who is wrong in our debate will be left to the long view of history.

It will be interesting to see how this decision plays out in the next election for Kentucky Supreme Court seats in this religiously conservative state: "The Court has seven justices, each of whom is elected for an eight-year term from one of seven geographic districts in non-partisan elections. The justices' terms are staggered; they do not all run for election in the same years. The justices choose one of their number to serve a four-year term as chief justice[.]"

The Chief Justice (from a district that includes Bowling Green, Kentucky) and the lead author for the other dissenting opinion face the voters in 2015. The concurring judge to the other dissenting opinion faces the voters in 2013 in the 7th Supreme Court District, which consists of 22 counties in Eastern Kentucky. Three justices in the majority face voters in 2016 and the other faces voters in 2015.


Michael Malak said...

It's laws and decisions like this that threaten marriage a hundred times more than legalizing gay marriage ever could.

Adultery should be illegal once again.

Andrew Oh-Willeke said...

Even if adultery should give rise to legal sanctions, it doesn't imply that we should refrain from accurately determining the paternity of children born when their mother is married, or the criminal sanctions are the best solution.

In alienation of affections actions, a civil suit for adultery abolished in all but a couple of a states, one of the main items of compensatory damages is the cost of supporting the adulterer's child. With an early paternity determination, child support payments address that in the event that the marriage survives.

Also, it takes two to tango and putting those who tangoed in prison is a very taxpayer unfriendly solution that hurts the children, that hurts the innocent spouses of the adulterers (by denying them the spouse that the adulterer intruded upon), and that, of course, hurts the adulterers too. It is an everybody loses approach.

If adultery should be illegal, what is a remedy that is appropriately proportionate to the harm and doesn't punish innocent victims?

One possibility that might make sense is to allow introduction of adultery evidence in divorce actions, not as a grounds for divorce, but as a disqualifier for maintenance, on the theory that someone who has been engaging in adultery should have to turn to their partner in adultery for maintenance and support, rather than to their ex-spouse.

Michael Malak said...

Replace "adultery" with "grand larceny". If a spouse commits grand larceny the innocent spouse suffers.

It brings up the separate debate about whether, in general, rehabilitation is to be preferred to punishment. But it alone doesn't put adultery in a separate class than other crimes.

Andrew Oh-Willeke said...

The difference in the case of adultery prosecution is that is both participants face the same punishment then the innocent spouse who is the victim of the crime is punished by being deprived of a spouse, which compounds the harm caused by the adultery to the marriage in the first place. If the couple has broken up over the affair anyway, that may not be a big deal, but if they haven't it is insanity and prosecutors often want to do insane things like that which harm the victim simply to make a public example for other cases.

In analogy to grand larceny, suppose that a stolen car was recovered, but that the prosecutors decided to seize the car in a civil forfeiture for use by the police since it was used in connection with a crime and didn't allow an innocent owner defense. Even if it is legal to have that kind of system, does it make any policy sense? (Also note that if a spouse steals from their spouse and then squanders the proceeds so that the theft can't be recovered, that divorce courts often can consider that in allocating marital property and debts.)

In addition to not being reflexive, the criminalization of larceny, but not of adultery (in Colorado it is a crime with no punishment attached), reflects the assumption that a thief is a threat to the general public, while a consentual adulterer is not.

The more difficult but more accurate analogy would be to domestic violence in a case where the victim is economically dependent upon the abuser. We do prosecute those cases on the theory that preventing the direct physical harm from continuing (and preventing likely future direct physical harm to other family members) is more important than preventing the victim from suffering economic harm to the victim. But, most of us are not willing to conclude that adultery is something that we should not empower a spouse to forgive in the way that we empower a spouse to forgive domestic violence. Domestic violence cases are resolved by treating spouses just like any other two individuals. Adultery prosecutions would increase the disparity between people who are married and merely cohabitants, and might even discourage people from getting married at a time when marriage rates are already at an all time low.

Andrew Oh-Willeke said...

Of course, another reason to not criminalize adultery is to remove an incentive to have an abortion when paternity is unknown as it was in this case.

If you know that you or your lover or both might go to prison if a child is carried to term and determined to be the lover's and not the husband's child, the incentive to not risk it and have an abortion would be much greater.