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Dissent Claims Ky. Supreme Court Tossed Marriage on Funeral Pyre in Adultery Paternity Ruling

Posted May 25, 2011 11:56 AM CDT
By Debra Cassens Weiss

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The Kentucky Supreme Court has ruled that a man who had an affair with a married woman may assert a paternity claim to the child he conceived in the relationship.

The 4-3 ruling overturned centuries of common law and a 2008 Kentucky Supreme Court decision, the Louisville Courier-Journal reports. The relevant statute establishes a rebuttable presumption that the husband is the father, the court said in the May 19 decision (PDF), but it does not bar courts from hearing the paternity claim by the man who had the affair.

The ruling is a victory for Christopher Egan, who asserted he was the father of a child born in 2008 to Julie Ann Stephens, the Courier-Journal says. Egan and Stephens are not identified in the opinion.

DNA tests showed a 99.9 percent probability that Egan was the father. The majority emphasized the old common law rule was established before scientific advances made paternity more of a certainty. “Indeed, in former times, the most scientific method conceivable was to hold the child up before the jury for its consideration of whether it bore a physical resemblance to the putative father,” the opinion said. “Things have changed.”

A dissent by Justice Bill Cunningham spoke of the institution of marriage and the children nurtured within it. “Interlopers cannot use their own adulterous behavior as a license to invade and disrupt the matrimonial circle,” he wrote. He would not, he said, “stand quietly by as the legal institution of marriage is surrendered to the funeral pyre of modern convenience and unanchored values.”

According to the story, Kentucky is now one of 33 states that allow a man to challenge the presumption that a child born to a marriage is fathered by the husband.

Hat tip to How Appealing.

Related coverage:

ABAJournal.com: “Lawyer Loses Paternity Case Because Daughter Was Born to Married Couple”

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