As if reacting to the story of Arnold Schwarzenegger fathering a child during his marriage, the Kentucky Supreme Court recently made a novel ruling regarding fathers' rights. The Kentucky Supreme Court ruled that men who father a child during an affair with a woman who is married have parental rights over the child. While the law does not affect law here in Texas, the ruling is an acknowledgement to the growing role that DNA testing plays in family law.
Often, it takes time for the law to catch up with developments in society and the ruling in Kentucky is an example of that. Even though DNA testing has been around for many years, family law in Kentucky remained based on old common law presumptions regarding children born to a married couple and child custody. The law before the ruling was that children are presumed to be the offspring of the woman who gave birth and her husband. If the father of the children was not the woman's husband, the man would not retain any parental rights.
The new ruling reflects a new technological reality where DNA testing can prove the paternity of a child within 99.9 percent accuracy. The ease of proving the father of a child has necessitated a change in a centuries old presumption. Under the new ruling, the father may demonstrate fatherhood through DNA testing and may then assert parental rights and perhaps gain visitation and child custody rights.
Opponents of the decision argue the ruling threatens the stability of families, subverts marriage and encourages adultery.
Source: Courier-Journal, "Kentucky court says fathers of children conceived during affairs have paternal rights," Andrew Wolfson, 5/25/11