Earlier this month, the Kentucky Supreme Court issued a decision that allowed a man who had fathered a child with a married woman (who subsequently remained married) to be designated the child’s legal father. The court said the traditional presumption of paternity did not prevent such a lawsuit. The legal barrier to such a suit had been the requirement that a paternity action could only be brought for a child “born out of wedlock,” but the court said this phrase should be read to include a child born to a married mother if the husband is not the father.
The Chief Justice, in dissent, notes that this definition had been proposed in the Uniform Act on Paternity but was not adopted by the Kentucky legislature, thus undercutting the majority’s suggestion that it reflected Kentucky law.
Two additional justices dissented. Actually, their opinion began: “We vigorously dissent.” They said:
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.’ 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.