Posted on 06/29/2010 9:22:37 AM PDT by fathers1
"Given the unusual facts of this case, and recognizing the inherent, equitable rights of biological parents who are deprived of parenting through no fault of their own, the grant of joint custody to Trevor cannot prevent Cahill from going forward with his paternity action."
That’s the Supreme Court of Kentucky writing in this case (Leagle, 6/17/10). Let me repeat the key words: “recognizing the inherent, equitable rights of biological parents who are deprived of parenting through no fault of their own…” Let me be clear; those words have the power to blaze trails into the law governing paternity fraud and adoption where none have gone before. They were written by the highest court in the state.
For twelve years I have studied the many ways in which fathers can be deprived of their rights by family courts and family law. One of the easiest ways is for mothers to keep the truth about paternity secret from dads. Over the years, I have read scores of cases in which a father was deprived of his parental rights through that simple expedient. Not once in all that time has there been a case that recognized the “inherent, equitable rights” of fathers.” Not once in all that time have I read a case that recognized the simple principle that rights cannot be lost without some action on the part of the individual whose rights they are. I’ve said it before: the most heinous mass murder has, literally, greater due process rights than the most upstanding single father.
The simple “Due Process 101” rule is that no one can be deprived by the state of their rights absent notice that the state is trying to do that, and a hearing at which the person can attempt to defend himself. But in the case of fathers’ rights, that most humble of notions is often nowhere to be found. In paternity fraud and adoption cases, fathers are routinely stripped of their parental rights with neither notice nor a hearing.
But in Kentucky, at least, that may have come to an end.
The facts of the case are weird, the holding unremarkable. Follow the bouncing facts. Trevor and Bethany Smith got married in October, 2002 and divorced in December, 2003. Their petition for divorce recited that Bethany was then pregnant by another man. Their divorce was finalized in February, 2004, but they remarried on July 15, 2004. The child was born the next day. They divorced again in September, 2007. Shortly after that, Bethany informed Andrew Cahill that he was the father of the child who had been conceived during her first marriage to Trevor and born during the second.
Strange as those facts are, they give a pretty good indication of how ridiculous presuming paternity on the part of the husband can be in an era of readily available DNA testing. Technically, because the child was born during the term of their second marriage, Trevor was the presumptive father. That would be true despite the fact that (a) both parties had admitted the opposite in their first divorce proceeding and (b) accurate information about paternity was only a couple of mouth swabs away.
And that is what Andrew Cahill wanted - accurate information about paternity. He filed a suit to establish paternity and get custody if the child proved to be his. Trevor and Bethany resisted his claim of paternity and requested the trial court to block his request for testing. All three courts – trial, appeals and Supreme Court – ruled for Cahill.
As I said, apart from the odd facts, this is just an off-the-shelf paternity case, but the Supreme Court took it further than that. Cahill is just the type of dad I’ve been researching for years. He had a brief relationship with a woman who more or less simultaneously had a relationship with another man. In this case, it was her off-again/on-again husband. Cahill never knew the child was his until she told him some time after September, 2007. By that time the child was three years old.
Trust me on this. In the past, the court might have shed a few crocodile tears for the unknowing father, but ultimately would have ruled that bringing a new person into the child’s life would be too disruptive and therefore (altogether now) the best interests of the child required that he/she have nothing to do with the actual dad. No longer. If Cahill proves to be the child’s father, he will have some measure of parental rights to be decided by the trial court.
In vain did people like me point out that bringing a new father into the child’s life is exactly what mothers do when they divorce and remarry. No, the child’s best interests either weren’t so important in those cases or, more likely, courts knew perfectly well that children adapt to those situations well enough. Whatever the case, the upshot was that if Mom wanted to remarry, she could; if Dad wanted a relationship with his child, well it was his tough luck.
And of course the fact that the dad’s absence during the important early life of the child had been brought about, not by him but by her, went entirely overlooked. In short, she controlled his parental rights as surely as if they were hers to begin with.
But in Kentucky, that has changed. Now we have the Supreme Court referring to “inherent” parental rights. That would seem to mean that simply being a biological parent creates parental rights. That is, they don’t come from legislative enactment or even from Constitutional authority. They come from the biological fact of parenthood.
They are “equitable” rights, i.e. not those created by law but by the facts of the situation. So dads in the dark about their paternity can no longer be deprived of those rights (called by the U.S. Supreme Court “far more precious than property rights”) simply by the nefarious actions of the mother. It’s an old rule of equity court that person who seeks equity must do equity and must have “clean hands.” Therefore, a mother who seeks to deny a father his equitable parental rights, must prove that her hands are clean. Lying to him about paternity or withholding the truth about it doesn’t qualify.
The court’s language is dicta, i.e. not a controlling holding. But ever after, attorneys and courts will be quoting those magic words “the inherent, equitable rights of biological parents” that the court said it was “recognizing.”
It’s the thin edge of the wedge.
Funny how paternity testing never seems to come into play when child support is the issue.
I don’t know if you are referring to state benefits but in many (most?) states the mother applying for same must be able to identify the father. There are paternity labs that focus almost exclusively on blood and/or DNA testing for this purpose.
Indeed. In some states, proof that the child is not the husband’s or ex-husband’s child is irrelevant. The guy who was thought to be the father is still on the hook.
Even if he had moved on and has a new family and actual children.
All of this is somwhat off topic though.
The actual decision in this article is welcome and surprisingly rare in the US.
I don’t know if you are referring to state benefits but in many (most?) states the mother applying for same must be able to identify the father. There are paternity labs that focus almost exclusively on blood and/or DNA testing for this purpose.
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Often the situation comes up in a failing marriage. The husband in that case is presumed to be the husband, and often assumes that he is.
Very Interesting Case! You have to wonder if the “inherent, equitable rights of biological parents who are deprived of parenting through no fault of their own…” argument will be used by a father (because in the eyes of the law a man is a father with all the responsibilities implied therein at the moment of conception) to stop the mother from denying him his parental rights by having an abortion. Hmmmmm
You’ve got foresight. However, the problem with those cases is that the mother won’t inform the father, have the abortion anyways.
Pretty massive ruling. In fact, it’s what is ultimately going to upend Roe v. Wade.
Life begins, biologically, at conception. Nobody even questions that fact. Not in court either. The law, as it is today, holds that a fetus isn’t human until it is born, essentially.
I can’t remember if partial-birth and late-term abortions are legal nationally right now, or if it is still a matter that states can decide individually.
Depending on the state, I would imagine, the father’s equitable rights may attach as early as the third trimester. In some states, I would imagine that some sort of either legal or criminal (or both) suit can be brought by a father against a mother for a late-term abortion.
One of my good friends, who married just this last Saturday, actually, had a boy that he knew nothing about for over 16 years. Woman tracked him down, called from a clear blue sky to tell him about his son, and that she was calling to get some information about his genetics becaue her son (not his, of course) was facing some sort of potentially life threatening illness.
My business partner’s ex-girlfriend lied about her being on birth control, actively sabotaged his condoms, had a baby by him, then dumped him and did the same to three other men. Two of those men have no idea she did it basically to harvest DNA. In his case, since she had money, my business partner is fully on the hook, and has forked over northward of $85K in less than three years.
The ENTIRE family law system isn’t even up to the point where you could call it ‘advocacy’, much less ‘justice’.
Nice to see this case happen. Hope they use it early and often as precedent.
This is not a good ruling, and the case is a mess.
It harms marriage, families, and the children especially.
until the courts get off this “motherhood first” kick there will be no maturity. If anything this case strikes down the presumption of automatic paternity. The next logical step is to require paternity testing as a matter of course in all births.
Opening the door to fathers at the point of birth is the first step. If this is phrased as a roe v wade attack then all the judges will just circle the waggons.
it seems it's rarely about the children... it's about what is best for the irresponsible adults... i'm not talking about this particular ruling, but about all the rights the state gives to unfit parents... i'm sure it'll apply in many cases regarding this ruling too...
Perhaps. Medical question - can paternity be safely determined prior to birth? If so, how early in the pregnancy?
Question bears on whether paternity should be determined as early as practicable, since there will be a question as to whether and when those paternal rights attach and become ‘inherent and equitable’.
There are many rights that don’t depend on the government for their existence. The government can’t pass laws to create these rights nor take them away.
we have to apply the ratchet effect.
Eliminate the marriage assumption for child support.
then
establish paternal rights regardless
then
de facto elimination of anonymous paternity. you donate=you pay child support
then
eliminate surrogate mother contracts.
one tiny step at a time so when you have all of these done, it is only a short hop into roe.
THERE the next step would be to eliminate child support without consent to birth. If a woman can choose to abort, a father can choose paternity or not.
click click of the ratchet.
if you don’t do it slow then you will end up with burned toast.
If a woman cheats, no child support from husband. A very simple first step.
Good plan!
I think we should go with the ‘flood the whole planet’ thing and just start over.
I’ll go with,” Nuke them from orbit, it’s the only way to
be sure.”
so he's been waiting for a man like Cahill.....having unprotected sexual relations with a MARRIED woman and impregnating her....WOW....some MAN OF THE YEAR he is.....
be careful what you ask for....many men might be forced to take paternity tests years later, as the kid grows up and LOOKS more like the one night stand sperm donor.
and if the kid is severely disabled or needs orthodontia or decides to go to private college, sperm donor will be held accountable....
then again maybe this is what it will take to have morality make a comeback.....no more casual sex with the bimbo or the exotic dancer or the married mother of 5....any one of which could become pregnant and sperm donor will be forced to pay, and pay, and pay.....
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