Court of Appeals decides new paternity case

By John H. Helmers Jr.

On June 5, the Kentucky Court of Appeals addressed the issue of fathers’ rights once again. In Ison .v Ison, the Court was tasked with deciding how to treat biological fathers vis-à-vis non-biological fathers. In this latest case, the biological father was not the husband of the mother, mirroring the facts of previous cases. However, in this case, the truth arose during the pendency of a child abuse and neglect case. The Commonwealth, acting through the Cabinet for Health and Family Services, sought to intervene in the divorce action in order to seek DNA testing. The child’s lawyer (or guardian ad litem) also sought to intervene.

The Family Court allowed the Commonwealth to intervene and ordered the paternity testing. In affirming the trial court’s ruling, the Court of Appeals rejected the concept of “paternity by estoppel” under the facts of this case.

Additionally, the Court of Appeals considered the issue of fraud in paternity actions. The Family Court had ruled that the couple had perpetrated a fraud on the court by claiming that the husband was the father of the child. The Court of Appeals overturned the trial court’s fraud finding, opining that the elements of fraud had not been met.

Although the case is designated “To Be Published,” it is surely will not be the last word on the topic. The paternity issues in cases such as Ison will continue to be address in Kentucky cases. Some studies indicate that as much as 10% of all births involve issues of disputed parentage. With 55,000 births in Kentucky each year, there are literally thousands of these cases flowing through family court each year. Every judge and divorce lawyer must be ready to address them.