Kentucky Supreme Court Recognizes Paternity Claim From Adulterous Affair and Puts An End To The “Bastardy Cases”

The Kentucky Supreme Court has handed down an important ruling (below) that Christopher Egan can make a paternity claim even if the child is the result of an adulterous affair. It is the rejection of a long-standing bar on such claims under a type of “dirty hands” rule for adulterous affairs. The court turned its back on a long line of morality based cases once called “bastardy cases.” Justice Bill Cunningham (right) in dissent accused the court of throwing the institution of marriage on the “funeral pyre of modern convenience and unanchored values.” Justice Daniel Venters (left) excellent majority decision is available below.

The majority opinion is well written and well conceived. It explores how much has changed from when the courts heard these so-called “bastardy cases” — changes that Cunningham is clearly not comfortable with.

The case involved an adulterous affair where the woman continues to have relations with both her husband and her lover. While Egan (who was also married at the time but pursuing a divorce) said the woman swore her love for him and her intention to leave her husband, she cut off the affair after discovering she was pregnant.

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.TheDNAtestrevealeda99.9429% 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.

She opposed his efforts to establish paternity by using the fact of her adulterous affair against him. The court decided it was time to accept modern science in Kentucky:

The test results may be for her an inconvenient fact, but they are so only because her husband chose to stay in the marriage. Had he chosen to do otherwise, those DNA test results might have been her only means to secure paternal support for her newborn baby.The current state of DNA testing is capable of determining paternity to such a degree of certainty that we no longer have to rely solely upon the husband’s alleged impotence, his absence “beyond the four seas,” or a visual examination of the baby to see if there are racial characteristics inconsistent with the husband . Just as those were once the only means of demonstrating beyond a reasonable doubt that the husband was not the father,DNA testing now serves as an appropriate form of evidence,not to avoid the traditional presumption of paternity, but to rebut it.

I strongly recommend reading Justice Venters’ opinion which is an formidable display of excellent historical and legal analysis.

Cunningham’s dissent (joined by Justice Scott) reads more as a period piece of a time when the courts enforced majoritarian morals, even to the stigmatizing of children:

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.at599 (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 .

Notably, Venters was only able to secure majority by a 4-3 vote. Chief Justice Minton also dissented but did so on the more classic basis of deference of the legislature.

Here is the ruling: 2010-SC-000045-MR

Source: Louisville Courier-Journalas first seen on ABA Journal

Jonathan Turley

12 thoughts on “Kentucky Supreme Court Recognizes Paternity Claim From Adulterous Affair and Puts An End To The “Bastardy Cases”

  1. These comments about the Sermon on the Mount are quite funny seeing as how Christ is doing away with men judging their own affairs because they are quite incapable of judging righteously. One day all these corrupt courts of man will be done away with – Praise God and we’ll have some real judgement and equity and not the blood sucking legal mess we have today. Its not about the kids – its about their power over us is what all of this is about.

  2. All-

    The more well reasoned opinion is the dissent of Chief Justice Minton. No matter how eloquently stated, what Justice Venters did in the majority opinion is pure usurpation of the role of the legislature-this is judicial activism at its worst. Read some of the background to the story and you will see that the Kentucky legislature defeated a bill that would have changed its paternity statute to essentially reach the result the Kentucky Supreme Court did in this case. The legislature defeated the bill for the reasons “Anonymously Yours” suggests: that an “interloper” to the marriage shouldn’t be allowed to continue sticking a pencil in the eye of the married couple through paternity proceedings. Whether you agree with that result or not depends on your politics (as many of the comments here indicate). Put that question aside though-what is important is that the people of Kentucky through the legislature decided that they did not want to allow paternity challenges brought by a third person outside of the marriage. It is not up to Justice Venters and the Kentucky Supreme Court to change this result-it is up to legislature to eventually revise the language of the statute if there is enough public support of such a change. Justice Venters and the majority opinion improperly took this issue out of the public debate-creating the law on their own. This is not a decision to be applauded for how well written it is. This is a decision to be derided for how duplicitous it is. Both conservatives and liberals should be cautious about decisions like these which take political questions outside of the political arena and into the world of judge-made law. I strongly disagree with Jonathan Turley about this decision. It symbolizes everything wrong about an imperial judiciary that thinks it is better suited to resolve public policy questions that our elected representatives.

  3. I also read the opinion this afternoon and I can not summarize my reaction to it any better than Mike A. just did. It was not only well-reasoned, it was truly a fine example of legal writing – clear, concise and with excellent flow. Good on you, Justice Venters, for a job well done.

    Justice Cunningham, on the other hand, eh . . . not so much.

  4. I just finished reading the opinion and have to tip my hat to Justice Venters. He has indeed provided us with is a textbook example of great opinion writing. And it would be valuable reading for law students for a number of reasons:

    1. It contains examples of the proper application of basic rules of statutory construction.

    2. It demonstrates the interplay between the common law and statutory law in the process of discerning public policy.

    3. It emphasizes the importance of historical analysis in the interpretation of legislative intent.

    4. It explains the majority’s disagreement with opposing viewpoints respectfully.

    5. It is lucid and concise.

    I can’t say the same for the dissent, however. Justice Cunningham combines a romanticized view of institutional marriage with the paternalistic notion of adultery as a form of trespass. Thus he does not consider the independent interests of children because they are a species of property in his analysis.

  5. tomdarch

    I submit that Justice Cunningham’s defense of the “sanctity of marriage” and it’s association with right wing philosophy is quite intentional.

    Also, as I recall the story of the Sermon on the Mount, it alleges the meek, not the arrogant Republicans, will inherit the earth. It’s also a tale of benevolent socialism with all of the attendees being fed at no cost to them through the largesse of a “miracle” giving free flowing “loaves and fishes” to all.

  6. TomDArch,

    In the Family Law “Circus” Arena…you have many players and not all of them nice…Most do not have the child’s interest at heart in the least….its more about…the child is mine and I don’t care if you are married….in a round about way…they are preserving the strings of a shambled marriage….but its the focus of the child….what in its best interest….as you are probably aware people stay married for a whole lot of unhealthy reasons….

  7. From what Prof. Turley presents here, it sounds like the majority opinion is correcting an unfair “one way street” approach to paternity.

    I guess I should actually read Justice Cunningham’s dissent, because I’m really fuzzy on what he is objecting to… Seeing to it that the biological fathers of children have both rights and responsibilities to the child? This is bad?

    (He might be pointing out, even unintentionally, the problem that the right-wing currently has regarding “the sanctity of marriage” – they need to deal with the “log in their own eye” of divorce before they have any grounds to claim that honoring same-sex, or multi-partner, marriages/civil unions would somehow weaken 2 person, gender-heterogeneous “traditional” marriages.)

    And any American conservative had better be careful about pointing out that it is bad to kneel down before any “Gods of the Market-Place.” Don’t they all worship CEO Jesus H. Christ, MBA? Wasn’t his Sermon on the Mount all about how he really likes free, unregulated markets and wants his followers to be rich here on earth?

  8. AY that’s actually a very good point. The same court in a divorce between husband and wife would presumably have socked the husband with paternity and child support.

  9. What happened to the presumption that they child is a product of the marriage side stepping the bastard claim…Then again, the state is only creature that I am aware of that can legally create a bastard….so to speak…..

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