By Andrew Wolfson
Men who father a child during an affair with a married woman have the right to seek a role in the child's life, the Kentucky Supreme Court has ruled.
In an emotionally charged decision that critics say will undermine marriage, the court reversed centuries of common law and its own 2008 ruling that held such children are presumed to be the offspring of the woman and her husband.
Bowing to the realities of DNA testing, which makes proving fatherhood a virtual certainty, the high court said in a 4-3 opinion late last week that Christopher H. Egan has the right to assert paternity -- and ultimately visitation and shared custody -- to a baby girl he said he fathered in September 2008 during an extramarital affair with Julie Ann Stephens. Both live in Northern Kentucky.
A DNA test revealed a 99.9 percent likelihood that he was the girl's father, but Stephens had sought to block a court from considering Egan's paternity claim, citing the state Supreme Court's 4-3 opinion in 2008 that a man who fathers a child during an affair with a married woman has no parental rights.
The court, however, which has one new member since that 2008 decision, reversed its precedent, with the new justice, Daniel Venters, writing the majority opinion.
Venters said the presumption that a child was fathered by the husband made sense for "some 20 centuries" because it was impossible to prove otherwise -- unless, for example, the husband was on the high seas for the nine months before the child was born.
But DNA testing is now routinely accepted, even to prove guilt or innocence in criminal cases beyond a reasonable doubt, Venters wrote.
In an interview, Egan's lawyer, Mary Erin Wilkins, said her client was pleased with the decision.
"He just wants to be a dad," she said.
Stephens' attorney, R. Matthew Moore, did not respond to requests for comment.
In a dissenting opinion, however, Justice Bill Cunningham said the majority's decision consigned the institution of marriage "to the funeral pyre of modern convenience and unanchored values."
Martin Cothran, an analyst for the Family Foundation of Kentucky, said the court was "disturbingly reducing the barriers on an interloper father interfering with the life of a family that he has already disrupted."
The Family Foundation and the Catholic Conference of Kentucky both lobbied against a bill in 2009 that would have reversed the Supreme Court's 2008 decision, saying it would diminish marriage and encourage adultery; Cothran called the measure the "Adulterers' Rights Bill."
But proponents of allowing men in such situations to prove paternity -- and eventually seek a place in the child's life -- say that fathers should be encouraged to step up and accept responsibility for children they procreate.
"It's just common sense that if a person can genetically prove paternity, then they should have rights to the child and responsibilities to the child," said Louisville family lawyer Diana Skaggs, past president of the Kentucky chapter of the American Academy of Matrimonial Attorneys.
Including Kentucky, 33 states allow a man to challenge the presumption that a child born to a married couple is the husband's.
The ruling gives new hope to James G. Rhoades Jr., who lost the 2008 Supreme Court case and who for five years hasn't seen the son he says he fathered during an affair with Julia Ricketts of Louisville, who decided later that she wanted to raise the child with her husband, Jonathan Ricketts, a Louisville lawyer.
Louis Waterman, who represents Julia and Jonathan Ricketts, said last week's decision should have no bearing on their case because of a legal doctrine that holds that once a case is decided, the decision should remain the same.
But Helmers said the doctrine doesn't apply when a high court establishes a new precedent. He said his client will try to use the new ruling to seek a role in his son's life.
Rhoades, who lives in Tallahassee, said he will try to work out an informal agreement with the Rickettses and file petitions for paternity, visitation and partial custody only if that is unsuccessful.
He said he last saw the boy he calls his son when he was 10 months old -- for three hours -- and that he will have to get to know him gradually.
"I don't want to interrupt his life," Rhoades said. "I just want to hold him. I just want to hear him talk -- I have never heard him talk. I love my son and I just want to see him."
According to court records, Julie Stephens and her husband, Randy, had been married for about eight years when she began an affair with Egan that began in October 2007 and lasted through the spring of 2008.
She didn't tell her husband about the relationship until two weeks after she gave birth to a daughter in September 2008, when the DNA test showed that Egan was the father and he expressed a desire to acknowledge his daughter and play a part in her life.
When Egan filed a paternity action in Kenton Circuit Court, Stephens claimed the court had no jurisdiction because of the Supreme Court's decision in Rhoades' case.
She also cited a state law that says that a child born to a married woman is considered out of wedlock only if evidence shows that the marital relations between the husband and wife ceased 10 months before the birth of the child.
That stemmed from the days when the only way a man could show he wasn't the father was to prove that he was on the high seas or "out of the realm" during the gestation of the child.
Stephens claimed that she and her husband continued to have sexual relations during the affair. But Kenton Circuit Judge Lisa Bushelman ruled that as a practical matter, the marital relationship ended when she began the intimate and secret affair with Egan.
Stephens sued to block Bushelman from holding a paternity hearing, but the Supreme Court narrowly affirmed the judge's ruling, although on different grounds -- that the presumption that the husband is the father can now be scientifically rebutted.
Venters said "times have changed" since the days when the only method was holding the child before a jury and asking if it looked like the alleged father.
He was joined in the majority by Justices Lisabeth Hughes Abramson, Mary C. Noble, and Wil Schroder. Chief Justice John D. Minton Jr. and Will T. Scott joined Cunningham in dissent.
Noting that the stigma of being an "'illegitimate" child or the parent of an "illegitimate" child has largely disappeared, Venters said that "some may lament the change as indicative of a decline in the moral fiber of American society" while others will celebrate it, for opening the doors of opportunity to children and mothers who lives previously were tainted.
"But none may deny that the change has occurred," he said.
Reporter Andrew Wolfson can be reached at (502) 582-7189.
Reproduced with permission of the copyright owner. Further reproduction or distribution is prohibited without permission.
CLARIFICATION PUBLISHED ON MAY 26 2011. PG. A2. A story Wednesday on a Kentucky Supreme Court decision asserting the rights of biological fathers to children conceived during affairs with married women should have said that Chief Justice John Minton Jr. issued a separate dissenting opinion to the dissent signed by Justices Bill Cunningham and Will T. Scott.