The institution of marriage is more than just a tax write-off for most. A somewhat unspoken of rule within the United States is that of morality based cases. The primary example has been that of a child born to a married couple. The presumption has been, and in most states, continue to be that the child’s father is the husband (the mother is fairly obvious). However, under the latest Kentucky Supreme Court decision, this centuries old line of thinking may be changing.
What Did The Kentucky Supreme Court Rule About Paternity?
Recently, the Kentucky Supreme Court, in a 4-3 decision, ruled that a man who had an extramarital affair has the right to assert paternity, visitation and shared custody to the child. These types of cases, once known as “bastardy cases” have taken center stage with the increasingly frequent use of DNA testing.
The case here involved a woman who had an affair with a man while still married to her husband. She continues to have relations with both her husband and the other man (the other man was married at the time as well). After finding out the woman was pregnant, the man sought to be part of the child’s life and demanded a paternity test. The DNA test proved within 99.9429% that the child was the other mans.
Why Do We Presume That The Husband Is The Father?
With the reality that DNA testing is now relatively easy and affordable; the Supreme Court decided it was time to break with tradition. Traditionally, a court would presume the husband was the father was based more on technology at the time, than any other reason. There are times when this presumption is rebutted, for example if the husband is a sailor who has been at sea for over 9 months, it is likely the child is not his. Additionally, if both parents are white, but the child born is of a different racial makeup, it seems entirely possible the mother may have had an affair.
The other reason to presume the husband is the father is to protect the child as well as the woman. Imagine the shame of a woman who must be confronted by a possible infinite number of men who may claim that the child is theirs. While we hope people are faithful, there are many out there who could seek to capitalize on the misery of others by attempting to petition the court.
What do you think? Should the husband be presumed to be the father? Is this an antiquated notion easily proved with DNA?
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