Denzik v. Denzik

¶1The behavior of Ms. Blazar (formerly Denzik) was reprehensible in at least two respects. First she engaged in an extramarital affair during her marriage to Appellant. Second, for spite and for what may have been pecuniary advantage, when her own child was twelve or thirteen years old, she revealed that one other than Appellant was the child’s biological father, thereby destroying the relationship between her adolescent daughter and the only father the child had ever known. While Ms. Blazer may not be financially bankrupt, she behaved in a morally bankrupt manner.

¶2Nevertheless, there are larger issues here and the visceral antagonism one may feel for Ms. Blazar should not impel this Court to rush to an unwise decision. We should not create an incentive on the part of either parent to attack the paternity of their children.

¶3The presumption of paternity and legitimacy of a child born to a married woman is one of the strongest of common law *114presumptions.1 At common law, courts were loathe to allow any evidence that a child born to a married woman was not the offspring of her husband despite circumstances that, from time to time, ignored biological reality. While early common law courts lacked the ability to say with certainty whether a child was indeed the offspring of the mother’s husband, other policy reasons were clearly part of the thinking, and those policies are no less valid today than they were then. Our scientific advances should not now be used to mark a child as illegitimate just because certainty is possible. Rather a compelling reason should be presented and the effect on all the parties and the children carefully weighed before such a step is taken. Although we live in a Jerry Springer2 world, some secrets need to be kept.

¶4The better approach, perhaps, is found in Justice Wintersheimer’s dissenting opinion in Bartlett v. Commonwealth,3 The majority of this Court in Bartlett allowed the presumption of paternity to be overcome by medical testing. However, Justice Wintersheimer relied on Bradshaw v. Bradshaw4 to state that the evidence required to bastardize a child was of a much higher degree than is required to convict a person of a minor criminal offense.5 Additionally, he stated that, “while KRS 406.011 may allow an action for paternity for a child conceived during wedlock but outside of marital relations [,] strong public policy concerns over the collateral bastardization of innocent children will not permit me to endorse the emasculation of the rights of non-parties, whether that be the father or unrepresented child.”6

¶5A child conceived during wedlock enjoys the presumption of legitimacy.7 Additionally, we have stated that in order to disprove the legitimacy of a child born during lawful wedlock, “it must have been shown that the husband was incapable of the act of procreation or that he did not have coition with his wife within any reasonable period of gestation.”8 The stigma arising from being marked as the child of an illicit union is an injury to the child, and is too great to inflict lightly.

¶6As a matter of policy, this Court should address these issues from the perspective of the child, and not the mother and her former husband. Their pecuniary interest should be entirely secondary. I fear the effect of the majority opinion will be to create an “open season” on the paternity of children in Kentucky. This claim was brought by a deceived former husband to recover child support he had paid. Under the rule announced, any father who is willing to bring such a claim in the hopes of discontinuing child support and recovering what has already been paid will be free to obtain or threaten to obtain a paternity test in an attempt to find a way out of the monetary obligations imposed by law. Or, some may be willing to bring such claims merely to harass their former spouses and their children. Even though Ms. Blazer began this episode, and even though she obtained the paternity testing in this case, *115the majority in its disdain for her has inadvertently created an incentive for fathers to investigate whether they are the biological fathers of their children in the hope of a financial windfall.

¶7Although Mr. Denzik had to pay support for a child that was ultimately determined not to be his biological offspring, he received the intangible value of thirteen years of fatherhood of a child to whom he appears to have been devoted. We should not put a price on the value of relationships between parents and children, and certainly not incentivize the destruction of these relationships.

¶8JOHNSTONE and ROACH, JJ., join this dissenting opinion.