The following is an article by Fathers & Families Board Member, Robert Franklin, Esq.:

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.

Robert Franklin, Esq., is a board member of Fathers & Families, America’s largest family court reform organization. To learn more, see www.fathersandfamilies.org. 

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