Establishing Paternity

One of the more interesting facets of practicing in Family Court are cases regarding paternity. In Kentucky when a child is conceived during the marriage of the parties it is presumed that the husband is the natural father of the child.  In cases where the mother and putative (commonly believed, supposed, or claimed) father of the child are not married there is no presumption of paternity and the parties must provide evidence to the Court of paternity before the Court can proceed on issues of parenting time, custody, and child support.  Thousands of dollars of social security benefits, educational benefits and inheritances hang in the balance of Court’s determination.

Courts will accept a DNA test as proof of paternity.  Also, in some cases ,the Courts will accept an affidavit signed by the mother and the putative father that the putative father is the biological father of the child thereby saving the parents time and expense in establishing paternity.

The Supreme Court of Kentucky, in a ruling, Cabinet for Health and Family Services Ex. Rel. Child Support enforcement v. B.N.T. and K.S., 2021-SC-0287-DGE, published on April 28, 2022, stated that while it may be acceptable to use an affidavit by mother and father to establish proof of paternity by a father, an affidavit by mother and father to deny paternity of the father is void.  The opinion stated “If a biological father were able to bring an action for non-paternity and acquire an order stating as much absent the evidence mandated by statute, then an innumerable number of children born in the Commonwealth would not be entitled to inherit, receive benefits from social security, or know who their genetic relatives were.” at page 13.

Thus, establishment of paternity is the doorstep to moving forward on several key issues regarding children in a family law case. It is important when consulting with an attorney to be honest and open about your circumstances so that they can find the best path across that threshold.