Last week, in a decision that underscores the tense relationship between science and law, a divided Kentucky Supreme Court told Rhoades that he could not press his paternity claim, no matter what evidence of fatherhood he might have, because J.N.R. was, and remains, a married woman. When it comes to defining fatherhood in the Bluegrass State, where Ricketts and her husband now live, the marital “I do” mean a lot more than DNA.
The 4-3 decision splintered the court, which issued five separate opinions. The majority was itself divided evenly among two camps, one that said Rhoades might have prevailed had he been able to show the J.N.R.’s “marital relationship had ceased at least 10 months” prior to the boy’s birth, and another that said no “stranger to the marriage” can ever attack the legitimacy of a child’s birth. “As long as marriage is on the books, it must mean something,” wrote Justice Bill Cunningham in one of two concurring opinions. “… We are in need of a bold declaration that the marriage circle, even one with an errant partner, will be invaded at one’s own legal risk.” He added: “While the legal status of marriage in this early 21st century appears to be on life support, it is not dead.”
The decision has left Rhoades devastated. “What I wanted was not just to see my son but to participate in his life,” Rhoades told TIME. “He is my son and I love him.” Kentucky’s ruling is firmly grounded in the history of the law, however. In fact, the so-called marital presumption has barred attacks on the legitimacy of children for centuries. Courts have forever held that allegations of fatherhood by third parties can only disrupt the family, confuse or embarrass the child, and unsettle the social order.
But unlike the past, such allegations these days are often backed by science, introducing certainty where none before existed. As of a result, the prohibition on third-party challenges to paternity has begun to weaken. By 2000, at least 33 states had adopted rules that allowed challenges by fathers with genetic proof of their paternity, usually restricting such efforts to the first two years of a child’s life. The advent of DNA testing has tread a similarly disruptive course in other areas of law, including criminal cases where exonerations once thought impossible are becoming routine. A few states have even begun allowing ex-husbands to present DNA evidence that they were duped by cheating spouses to avoid child support obligations.
For Rhoades, the changes are coming too slow, however. Unable to present proof of his paternity, he won’t be able to seek custody or visitation rights. As a result, he’ll be a stranger to his son until such a time as the boy’s legal parents decide to tell him, if ever. “My son is going to find out the truth eventually,” he said. “Is he going to find out when he is 13, 14 that everybody in his life has lied to him?”
Justice Lisabeth Hughes Abramson raised just that point in a fiercely worded dissent attacking the majority’s notion that the boy will be better off not knowing the truth about his parentage. “Our world is full of inconvenient truths. We accomplish nothing for families, the broader community and our justice system when we deny those truths.” she wrote.
Rhoades said he plans to appeal to the U.S. Supreme Court on constitutional grounds. But he faces long odds there, given that the high court has already ruled once, in 1989, on the same issue, upholding California’s explicit bar against paternity challenges like his. That decision too was divided and contentious. The biological father in that case did not get to see his daughter till she had turned 21. “Well, obviously I am not going to give up and say, ‘Oh well I lost,'” Rhoades says. “I believe I have a fundamental right to be in my son’s life.” The trouble is: nature’s law isn’t the law of the land.