According to recent data, over one million men in the United States are raising a child which is not their own. In some states, estimates suggest that between 14 and 30 percent of all men paying support are doing so for a child fathered by another man. Nationally, estimates suggest that about 3.5 percent of all dads are not really fathers at all.

This so-called “paternity fraud” is a re-occurring issue in courts nationwide.

These issues have found their way to Kentucky courts as well. In 2005, Kentucky first recognized the doctrine of paternity-by-estoppel. At issue in the case of S.R.D. v. T.L.B., was the fatherhood of three children born during the parties’ marriage. Throughout the marriage, and for six years after the divorce was finalized, the putative father treated each of the three children as his own. In fact, during the divorce, entered into a joint custody and child support arrangement.

In 2003, the putative father learned that he had not actually fathered one of the three children. This was conclusively established by DNA testing. Despite this knowledge, the putative father continued in his parenting role. As the court noted, by both “deed and word” he consistently confirmed the parent-child relationship. Ultimately, the court was required to decide whether the putative father could continue to exercise his visitation with the child but not be required to pay child support.

Kentucky law adheres to the “presumption of legitimacy” which assumes that when a child is born during a lawful marriage, the child is the product of the husband and wife. This presumption is refutable, however, by clear and convincing evidence. Applying these well established rules, the putative father should not have been required to continue to provide support based on the conclusive DNA evidence.

The Kentucky Court of Appeals, however, adopted the theory of equitable estoppel which precludes a man who has held himself out as a child’s father from denying paternity: “The relationship of father and child is too sacred to be thrown off like an old cloak, used and unwanted. We are dealing with the care and education of a child during his minority and with the obligation of the party who has assumed as a father to discharge it. The law is not so insensitive as to countenance the breach of an obligation in so vital and deep a relation, undertaken, partially fulfilled, and suddenly sundered.”

By doing so, Kentucky joined the vast majority of other states which follow the same rule.

In a 2006 decision, the Kentucky Supreme Court addressed a slightly different issue. Denzik v. Denzik involved a fraudulent misrepresentation claim against a former wife alleging that she intentionally deceived him regarding his paternity of a child born during the parties’ marriage. In ruling that the father was entitled to recover monetary damages for his ex-wife’s deception, the Court approved the concept underlying “paternity fraud” claims: “[F]raud is a well-proven area of law that has weathered the varied and multiple tests of time” and that in this instance, it was neither a creation of new law nor a new application of established principles. Fraud is fraud, whether in the context of paternity or more traditional notions.

This is a rapidly developing area of Kentucky law. In February, the Kentucky Court of Appeals again addressed a paternity fraud allegation where a father argued that he should not be required to pay child support for a child he previously believed to be his own. Unlike S.R.D., the putative father and mother were not wed at the child’s birth, and thus no presumption of paternity existed. In that circumstance, the court allowed the father to contest the child support enforcement proceeding. Other cases are making their way through the Kentucky courts.

All of these cases illustrate what one judge has described as the “legal morass created when a child born during a marriage is not a child of the marriage.” The only clear principle to emerge from these cases thus far, is that a man need not be a biological father to be a legal father.

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