COMMONWEALTH OF KENTUCKYSUPREME COURT

CASE NO. 2007-SC-00175

J.N.R. AND J.S.R. APPELLANTS

v. APPEAL FROM COURT OF APPEALSACTION NO. 2006-CA-002497

_________________________________________

REAL PARTY IN INTEREST’S RESPONSIVE BRIEF_________________________________________

HON. JOSEPH O’REILLY, JUDGEJEFFERSON FAMILY COURT APPELLEE

AND

J.G.R. REAL PARTY IN INTEREST.

CERTIFICATE OF SERVICE

I hereby certify that true and correct copies of the Real Party in Interest’s Responsive Briefwere mailed this___ day of June, 2007 to Louis Waterman, Esq., FORE MILLER & SCHWARTZ,First Trust Centre, 200 S. Fifth Street, 700N, Louisville, KY 40202, Charles E. Ricketts, Jr., Esq.,Ricketts & Platt, 4055 Shelbyville Rd., Louisville, KY 40207, and Honorable Joseph O’Reilly, 700West Jefferson Street, Jefferson Family Court Division 7, 5th Floor, Judicial Center, Louisville,Kentucky 40202, Clerk, Kentucky Court of Appeals, 360 Democrat Drive, Frankfort, Kentucky40601sent by U.S. Express Mail, Next Day Delivery to Clerk, Kentucky Supreme Court, StateCapitol, Rm. 235, 700 Capital Avenue, Frankfort, Kentucky 40601.

HELMERS DEMUTH & WALTON PLC

By: ___________________________Troy DeMuth, Esq.John H. Helmers, Jr., Esq.

429 W. Muhammad Ali Blvd.200 Republic BuildingLouisville, KY 40202(502) 581-0077Counsel for Real Party, James G. Rhoades, Jr.

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COUNTERSTATEMENT OF POINTS AND AUTHORITIES

COUNTERSTATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1II. Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4I. The Court of Appeals Properly Found the Family Court Had

Jurisdiction and Denied the Writ of Prohibition. . . . . . . . . . . . . . . . . . . . . . . 4A. The Court of Appeals Accurately Decided

the Family Court Had Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Montgomery v. McCracken, 802 S.W.2d 943 (Ky. App. 1990). . . 6KRS 406.051 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Simmons v. Simmons, 479 S.W.2d 585 (Ky. 1972) . . . . . . . . . . . . 6

B. The Court of Appeals Correctly Decided that James Rhoades Has Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71. James Rhoades Has Standing Pursuant to KRS 403. . . . . . . . . 7

Moore v. Asente, 110 S.W.3d 336 (Ky. 2003) . . . . . . . . . . . . . . . 7Posey v. Powell, 965 S.W.2d 836 (Ky. App. 1988) . . . . . . . . . . . . 7Williams v. Phelps, 961 S.W.2d 40 (Ky. App. 1998) . . . . . . . . . . 7KRS 403.400 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7KRS 403.270(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Basham v. Wilkins, 851 S.W.2d 491 (Ky. App. 1993) . . . . . . . . . 7Stanley v. Illinois, 405. U.S. 645, 92 S.Ct. 1208, 31 L. Ed. 2d 551 (1972) . . . . . . . . . . . . . . . . . . . . . 7KRS 403.400 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Stanley v. Illinois, 405. U.S. 645, 92 S.Ct. 1208, 31 L. Ed. 2d 551 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Phillips v. Horlander, 535 S.W.2d 72 (Ky. 1975) . . . . . . . . . . . . . 8Stanley v. Illinois, 405. U.S. 645, 92 S.Ct. 1208, 31 L. Ed. 2d 551 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Lehr v. Robertson, 463 U.S. 248, 261 (1983) . . . . . . . . . . . . . . . . 9Vinson v. Sorrell, 136 S.W.3d 465, 470 (Ky. 2004) . . . . . . . . . . . 9

2. James Rhoades Has Standing Pursuant to KRS 406. . . . . . . . 10KRS 406.021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10Perry v. Com, Ex Rel. Kessinger, Ky., 652 S.W.2d 655 (Ky. 1983) . . . . . . . . . . . . . . . . 11Barlett v. Comm. ex rel Calloway, 705 S.W.2d 470, 473 (Ky. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II. The Court of Appeals Ruled Correctly that the Jefferson Family Court was NotActing Erroneously. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CR 60.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky. App. 2005) . . . . . . . . . . . 12

Cain v. Cain, 777 S.W.2d 238 (Ky. App. 1989) . . . . . . . . . . . . . 12Spears v. Spears, 784 S.W.2d 605 (Ky. App. 1990) . . . . . . . . . . 12Stanley v. Illinois, 405. U.S. 645, 92 S.Ct.

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1208, 31 L. Ed. 2d 551 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Quilloin v. Walcott, 434 U.S. 246 (1978) . . . . . . . . . . . . . . . . . . 13Cabav v. Mohammad, 441 U.S. 380 (1979) . . . . . . . . . . . . . . . . 13Lehr v. Robertson, 463 U.S. 248 (1983) . . . . . . . . . . . . . . . . . . . 13Ex Parte C.A.P., 683 S.O. 2d 1010 (Alabama, 1996) . . . . . . . . . 13Donald M. Zupanec, Annotation, Who May Dispute Presumption ofLegitimacy of Child Conceived or Born During Wedlock, 90A.L.R.3d 1032 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

III. Appellant’s Purported “Defense” of a Legal Presumption is Inappropriate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Tackett v. Tackett, 508 S.W.2d 790 (Ky. 1974) . . . . . . . . . . . . . . 14 Simmons v. Simmons, 479 S.W.2d 585 (Ky. 1972) . . . . . . . . . . 14

KRS 403.280 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15KRS 406.021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Donald M. Zupanec, Annotation, Who May Dispute Presumption ofLegitimacy of Child Conceived or Born During Wedlock, 90A.L.R.3d 1032 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Posey v. Powell, 965 S.W.2d 836 (Ky. App. 1998) . . . . . . . . . . . 15KRS 406.021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Michael H. v. Gerald D., 491 N.S. 110, 109 S.Ct. 2333, 105 L. Ed. 2d 91 (1989) . . . . . . . . . . . . . . . . . . . . . . 16California Evidence Code Ann. Section 621 (West Supp. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . 16S.R.D. v. T.L.B., 174 S.W.3d 503 (Ky. App. 2005) . . . . . . . . . . . 17KRS 406.011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1716 L. Graham & J. Keller, Kentucky Practice- Domestic RelationsLaw § 23.4 (2d. ed. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

1 Jonathan Ricketts was not a party to the original litigation; however, he was identified asthe husband to the original litigation. The Family Court has ruled that he was a necessary Party tothe litigation.

2 Subsequent DNA testing has proven paternity to a virtual certainty.

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COUNTERSTATEMENT OF THE CASE

This matter involves the Appellant’s arguments that the Family Court does not have

jurisdiction over this controversy or was acting erroneously. The Appellant also argues that

Kentucky law has a “conclusive presumption” of martial paternity. Real Party in Interest, James

Rhoades, vehemently denies each allegation. The Court of Appeals correctly determined the

jurisdiction of the Family Court in regards to this matter.

I. Factual Background

James G. Rhoades, Jr., (hereinafter, “James” or “Real Party in Interest”), and Julia Ricketts,

(hereinafter, “Julia”, “Appellant”, or “Appellant Mother”), were involved in a romantic

relationship. This relationship resulted in the birth of a male child, Julian Anthony Ricketts

(hereinafter, “Julian” or “child”), on June 20, 2006. James was unmarried at the time of the

relationship and at the time of the birth of the child. Julia was and is married to Jonathan Ricketts.1

Following the birth of Julian, both Julia and James knew the parentage of the child. This was

immediately ascertained by the child’s blood type, which eliminated Jonathan as a genetic father.

Paternity was later confirmed by DNA test results, arranged with the cooperation of Julia and

James.2

Following the birth of the child, Julia and James continued their romantic and intimate

relationship. They met on a number of occasions and Julia wished for James to have a regular

visitation schedule with the child. At times, James came from his home state of Florida and would

remain in the Louisville, Kentucky area with the purpose of spending time with both Julian and

3Deposition of Julia Nuss Ricketts, pgs. 50-54, attached A

4 Petition for Custody and Support dated 9/27/06, attached B

5 Verified Response to Request for Admissions dated 12/8/06, attached C

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Julia.3 On other occasions, James had his son, Julian, in his sole possession for periods up to nine

(9) hours. The entirety of these father/son contacts was kept from Jonathan by Julia. Despite her

promises to inform Jonathan of the true paternity of the child, Julia delayed in doing so.

II. Procedural Background

Frustrated by Julia’s inaction, James contacted legal counsel and on September 26, 2006

James filed a Petition for Custody and Support of his son. This Petition was based on statutes which

confer jurisdiction to Family Court concerning matters with relation to children, including, but not

limited to, paternity, child support, custody, and visitation4. Immediately upon the filing of this

action, Julia sought to cut James out of the life of his son.

While James has submitted his sworn Affidavit and other conclusive proof that he is the

father of the minor child. There has been no contradictory proof submitted. In fact, Julia has gone

to great lengths to actively “muddy the waters” on this particular issue. She sought to delay the

filing of a responsive pleading by a frivolous Motion to Dismiss. Furthermore, she failed to respond

to Requests for Admissions in a timely fashion. When the Admissions were finally returned, she

stated that she was “in receipt of what James purports to be results of DNA testing; however, Julia

is without sufficient information to confirm truthfulness of the results and therefore denies same.”5

Despite James’ visitation, a conclusive Blood test, Julia’s prior behavior completely to the contrary,

she claimed to not know the identity of her child’s father.

Following the filing of the Petition, the Parties, through counsel, appeared in Jefferson

Family Court. They agreed to mediate the case with a retired Family Court Judge selected by Julia.

6 Referenced in subsequent written Order dated 11/30/06, attached D

7 Deposition of Julia Nuss Ricketts, pgs. 30 line 24 through 32 line 7, attached E;Respondent’s Compliance with Court Order dated 3/7/07, attached A

8 Motion for Contempt dated 3/7/07

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Due to the agreement, the Family Court ordered mediation. Shortly thereafter, Julia sought to avoid

this mediation, as well as the litigation itself, using every means at her disposal. Despite her

agreement to mediate, Julia initiated the Court of Appeals Writ challenging the mediation order.

During her delay, she denied James access to Julian for five (5) months.

On October 30, 2006, Judge Joseph O’Reilly, while presiding within Family Court,

specifically instructed the Appellant Mother and her counsel to get alternative DNA testing if she

believed there was any reason to contest the results that established James as Julian’s father.6

Despite the Court’s directive, Julia did not seek testing with respect to James Rhoades. Ultimately,

Julia and Jonathan obtained their own testing. As suspected, that testing determined conclusively

that Jonathan Ricketts was not Julian’s father.7 Consistent with their delay strategy, they concealed

the results for months, only releasing it to the Family Court after James filed a Motion for

Contempt.8

On December 8, 2006 Julia petitioned the Court of Appeals for a Writ of Prohibition. The

Court of Appeals granted a stay. On February 8, 2007 the Court of Appeals affirmed in part stating

that an order of mediation was premature to a finding of paternity. The Court of Appeals denied in

part stating that the Jefferson Family Court had jurisdiction and was not acting erroneously,

ultimately denying the Writ. The Court of Appeals remanded for further proceedings regarding

paternity.

Following the Court of Appeals ruling, the litigation continued. The parties began trial

preparation for a hearing on custody. Subsequently, on March 29, 2007 the Family Court ordered

9 Order dated 3/29/07

10 Notice of Compliance with Court Order dated 4/12/07, attached F

11 Notice of Compliance with Court Order dated 4/12/07, attached F

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a third (3) DNA testing pursuant to KRS Chapter 406.9 The results confirmed what the parties

already knew, that the biological father of Julian Anthony Ricketts is James Rhoades.10 The test

confirmed that James Rhoades is Julian’s father with a probability of paternity at 99.99997% and

a combined paternity index of 4,385,871 to 1.11 Since these combined findings, Julia has failed to

offer a shred of evidence to contradict the sworn affidavit, the blood testing conducted in the hospital

(which excluded her husband as Julian’s father) and the DNA testing in which she participated, on

three separate occasions. Accordingly, it can be stated without equivocation that there is clear and

convincing evidence that James Rhoades is the father of this child. Like Julia herself, he is a parent.

The Jefferson Family Court stated its intent to enter a judgment of paternity based on the

proof presented to the Family Court. The Trial Court instructed the Parties to resume a regular

visitation routine. Before the Family Court could put its bench ruling to paper, the Appellant sought

relief from this Honorable Court. An Order granting appeal from the Court of Appeals was entered

on May 3, 2007.

* * * * *

ARGUMENT

I. The Court of Appeals Properly Found the Family Court Had Jurisdiction andDenied the Writ of Prohibition.

There are two avenues to obtaining such a writ. First, the Appellant can show that the Trial

Court was acting outside its jurisdiction and the Appellant is without remedy by Appeal.

Alternatively, if the Trial Court was about to act erroneously, the Appellant is without remedy by

Appeal and that irreparable harm would result, a writ could be issued. The Appellant has failed to

12 Family Court is a division of Circuit Court. It is, essentially, a hybrid of traditional Circuitand District Court jurisdiction. Originally a pilot project which began in Jefferson County, itsexistence was ratified by amendment to the Constitution of the Commonwealth of Kentucky.

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show either. No demonstration has been made that the Trial Court was outside its jurisdiction or

acting erroneously. Furthermore, the Appellant has failed to identify any real harm to herself or to

Julian by allowing James to develop and maintain a loving relationship with his son. James

Rhoades is the biological father of Julian Anthony Ricketts, proven by three (3) DNA tests. As a

biological father who has at all times acted as Julian’s father, James has a protected interest in his

son. This Court must affirm the findings of the Court of Appeals as to the jurisdiction of the

Jefferson Family Court. To do otherwise would deny a loving father his right to his child, as well

as that child’s right to a relationship with his father.

As admitted in the Appellant’s brief, a Writ of Prohibition may be granted in one of two

scenarios. The first scenario arises when:

1. The lower Court is proceeding or about to proceed outside of its jurisdiction; and

2. There exists no adequate remedy by Appeal.

A. The Court of Appeals Accurately Decided the Family Court Had Jurisdiction.

A Writ of Prohibition is wholly without merit as the Family Court clearly has jurisdiction.

In the actions relating to children, jurisdiction is established by statute. In this case, the subject

matter jurisdiction upon the court is conferred by KRS Chapter 403 and KRS Chapter 406. Both

of which are specifically identified in the Petition for Custody and Support filed in Jefferson Family

Court.12 The Jefferson Family Court clearly has subject matter jurisdiction.

The other possible defenses that might relate to lack of jurisdiction are not present in this

case. Clearly, the Court has personal jurisdiction over the Parties. The Appellant Mother and her

husband are residents of Jefferson County, Kentucky. James Rhoades, the father of the child, is a

13 As defined in the Uniform Child Custody Jurisdiction Enforcement Act, KRS 403.010through 403.880.

14 Montgomery v. McCracken, 802 S.W.2d 943 (Ky. App. 1990).

15 See Simmons v. Simmons, 479 S.W.2d 585 (Ky. 1972).

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nonresident who has availed himself of the jurisdiction of the Court. Lastly, and most importantly,

the minor Child has Kentucky as his home state13, having been born in the Commonwealth and

having resided continuously during the entirety of his young life.

Kentucky law clearly supports the denial of the writ. Specifically, in Montgomery v.

McCracken14, the Court denied the Writ of Prohibition in a case, involving a child of a mother who

was married at the time of birth to an individual other than the father of the child. Upon evidence

that her husband was not the father, a paternity action was filed against the biological father in

District Court. A blood test confirmed the paternity, specifically indicating that the probability was

99.83%. Nonetheless, that Appellant Father filed a Motion to Dismiss the action. In Montgomery,

the Court found that the dismissal was inappropriate and a Writ of Prohibition was denied. The

Appellate Court found that KRS 406.051 vests Kentucky Courts with jurisdiction of paternity

actions brought under KRS 406. The Court further held that “it was not persuaded that a child born

to a married woman can be found to be have been born out of wedlock only if the spousal marital

relationship ended at least ten months prior to the child’s birth.” It further held that the presumption

had been overcome by evidence “so clear, distinct, and convincing” as to remove the question from

the realm of reasonable doubt.”15 Moreover, the child was found by the Circuit Court to have been

“born out of wedlock” to a married woman by a man other than her husband. The District Court was

vested with subject matter jurisdiction.

In the instant case, the facts are identical. The child was born out of wedlock, that is to a

man and woman who are not married. A Blood test and multiple DNA tests have provided clear and

16 Moore v. Asente, 110 S.W.3d 336 (Ky. 2003), citing Posey v. Powell, 965 S.W.2d 836(Ky. App. 1988), and Williams v. Phelps, 961 S.W.2d 40 (Ky. App. 1998).

17 This antiquated notion has been eliminated in Kentucky. See KRS 403.270(2). See also,Basham v. Wilkins, 851 S.W.2d 491 (Ky. App. 1993). Additionally, The Supreme Court of theUnites States has held that equal protection requires that unwed father be given custody rightsidentical to those granted to married fathers. Stanley v. Illinois, 405. U.S. 645, 92 S.Ct. 1208, 31 L.Ed. 2d 551 (1972).

7

convincing evidence as to the child’s paternity, conclusively eliminating the mother’s husband.

Thus, the Family Court has jurisdiction and a claim for a Writ based on lack of jurisdiction is wholly

without merit.

B. The Court of Appeals Correctly Decided that James Rhoades Has Standing.

James Rhoades has standing to seek custody and visitation pursuant to KRS 403 and KRS

406.

1. James Rhoades Has Standing Pursuant to KRS 403.

In Kentucky, standing means “the right to bring an action in the first instance.”16 Pursuant

to Kentucky statute, James may bring a custody action. Specifically, KRS 403.400 states that a child

custody action may be brought by a parent, a de facto custodian of the child, or other person if the

child is not in the physical custody of one of the parents. James Rhoades may bring a custody action

as he is a parent. Specifically, he is the father of the minor child. Fathers are parents. Although

Julia might insinuate that she conceived the child without the contribution of James, this is not the

case. Nor does Julia have a superior right or claim to custody than that of James.17 Pursuant to KRS

403.400, James Rhoades has standing for a custody claim.

In this case, James Rhoades has filed a custody action pursuant to KRS chapter 403. His

standing is permitted as cited hereinabove. In this case, as in all others, the “best interest” standard

will apply to allow the Court to determine issues of custody, residential placement, and parenting

18 See Stanley v. Illinois, 405. U.S. 645, 92 S.Ct. 1208, 31 L. Ed. 2d 551 (1972).

19 Phillips v. Horlander, 535 S.W.2d 72 (Ky. 1975).

20 Deposition of Julia Nuss Ricketts, pgs. 50-54, attached A

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time/visitation. Julia argues that she should be determined to be the custodial parent and James

should not be afforded a day in court simply based on her gender and/or marital status. There is no

Kentucky case which remotely stands for this principle. James is permitted to make his claim for

custody. The Supreme Court of the United States has held that equal protection requires that an

unwed father be given custody rights identical to those granted to married fathers.18 Additionally,

Kentucky’s highest Court held that an unwed father has a constitutional right of visitation even

against the mother’s wishes.19 In light of the principles stated in Stanley and Horlander, supra, the

next logical step is to conclude that a biological father of a child born out of wedlock has the right

to petition and obtain custody of his child if he is not found unfit, and if such is in the best interest

of the child. The Supreme Court must hold that a father may petition the Circuit Court for custody.

A biological father is a parent, and thus, has standing to seek custody of his child. Contrary

to the absurd arguments of the Appellant Mother, James is not a “legal stranger” to the child. In

addition to the legal connection identified by the Family Court Judge, James is linked to the child

by his genes and the bond they forged during the early weeks of the child’s life. During those early

weeks, Julia allowed James to visit Julian and act as his father, many times unsupervised.20

Kentucky’s statutory scheme allows for parents to seek custody of their child.

Unlike some sister states, the Kentucky General Assembly has not adopted the Uniform

Parentage Act of 2000, nor has it adopted any other statutory scheme that diminishes the legal rights

of a biological father when the child in question was born during the mother’s marriage to another

man. The responsibility to decide whether Kentucky will deny a biological father a legal

21Stanley v. Illinois, 405. U.S. 645, 92 S.Ct. 1208, 31 L. Ed. 2d 551 (1972).

22 Lehr v. Robertson, 463 U.S. 248, 261 (1983) (internal quotation marks and citationsomitted)

23 Moreover, the Appellants have not, nor can they, claim that James waived his rights ofpaternity and/or custody. As reflected in the Court record, James promptly obtained objective DNAtests and within weeks of their results filed an action seeking custody and paternity.

The Vinson factors to determine waiver include:[the] length of time the child has been away from the parent,circumstances of separation, age of the child when care was assumedby the non-parent, time elapsed before the parent sought to claim thechild, and frequency and nature of contact, if any, between the parentand the child during the non-parent’s custody.

Vinson v. Sorrell, 136 S.W.3d 465, 470 (Ky. 2004).

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relationship with his biological children is held entirely by the Kentucky legislature. This Court

must follow the current statutory scheme of Kentucky.

In accordance with the current statutory law, federal and Kentucky Courts have held that

unwed fathers have a constitutionally protected interest in their children. The United States

Supreme Court found that the interest of biological fathers is so strong that it cannot be broken

“absent a powerful countervailing interest.”21 There is nothing in the record to indicate that James’

parental rights should be terminated. In Lehr, the Supreme Court stated:

When an unwed father demonstrates a full commitment to the responsibilities ofparenthood by coming forward to participate in the rearing of his child, his interestin personal contact with his child acquires substantial protection under the due processclause. At that point it may be said that he acts as a father toward his children.22 The record shows that James was fully involved in Julian’s life, including providing money,

clothes and other supplies.23 James’ contact with Julian was terminated at the whim of the Appellant.

A claim of lack of standing when a person has a fundamental right of paternity is absurd.

2. James Rhoades Has Standing Pursuant to KRS 406.

Similarly, the Kentucky paternity statutes permit James to bring an action. Specifically, the

controlling statute, KRS 406.021, affords the opportunity to file a paternity action for any putative

24 See Perry v. Com, Ex Rel. Kessinger, Ky., 652 S.W.2d 655 (Ky. 1983).

25 Barlett v. Comm. ex rel Calloway, 705 S.W.2d 470, 473 (Ky. 1986).

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father. One need not know conclusively that one has fathered a child in order to initiate this action.

However, James was able to know, in advance of even filing, that he was the father of Julian.

Accordingly, he filed a Petition, citing the relevant chapter of the controlling statute in his Petition.

Furthermore, KRS Chapter 406 provides a road map for the handling of paternity actions by

the Trial Court. In the instances where paternity is contested, the Trial Court may order tests. By

his statements to the Parties, Hon. Judge O’Reilly instructed, in crystal clear terms, to have additional

testing conducted if there was any dispute as to the DNA tests. If they were not in dispute, Judge

O’Reilly properly stated that the Family Court would take up the issues relating to paternity,

visitation, and custody. After this matter is properly remanded to the Trial Court, it is expected that

the Family Court will address these issues as is permitted under the relevant statutes.

There is little question that the Trial Court has acted properly. The Court has followed the

applicable statutes and controlling case law. The fact that scientific testing may be ordered, admitted

as evidence, or relied upon by the Trial Court in a Paternity action has been recognized in Kentucky.24

The Appellant seeks to defend this case based on the falsehood of the paternity of Jonathan

Ricketts. Julia seeks to prevail based on a manufactured fiction. There is no basis for this.

In fact, when faced with a similar situation, the Supreme Court of Kentucky held “Truth and

justice are irrevocably bound. They are Siamese twins sharing a single heart beat. Neither can

survive very long without the other. Hence the advances of science serve to assist in the discovery

of the truth. The law must accommodate them. The law cannot pick and choose when truth will

prevail.”25

26A mediation alone cannot cause irreparable injury. The worst injury that a Party cansustain in mediation the loss of few hours time and the costs of the mediation. Neither of these“injuries” can be construed as irreparable.

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II. The Court of Appeals Ruled Correctly that the Jefferson Family Court was NotActing Erroneously.

The second scenario in which a Writ of Prohibition is appropriate arises when:

1. The lower Court is acting or about to act erroneously, although within its

jurisdiction; and

2. There exists no adequate remedy by Appeal; and

3. Great injustices and irreparable injury will result if the Petition is not granted.

In the instant case, the Appellant has failed to prove any of the required grounds. A failure

with respect to any of the three prongs must be considered fatal to the Appellant.

Specifically, the Appellant has failed to show that the Trial Court is acting erroneously. The

Trial Court has yet to enter any Orders which might possibly be construed as erroneous. At the time

of the filing of the original action, the Trial Court has ruled on only two (2) issues. The first was to

deny the Appellant’s Rule 12 Motion to Dismiss. However, a mere disagreement with the finding

of the Trial Court does not rise to the level where a writ should be entered or even seriously

entertained by the Court of Appeals. If so, the Court would be deluged with original actions filed by

every dissatisfied litigant. The only other ruling of the Court has been with respect to mediation. As

referenced hereinabove, the Appellant Mother herself agreed to the Mediation Order which was

entered by the Court. In fact, counsel for the Appellant suggested the mediator to be used. As a

matter of law, a Mediation Order which offers the Parties an opportunity to resolve their differences

by alternative dispute resolution26, but does not subject them to any legal authority, can never be an

erroneous decision by a trial court having jurisdiction over the Parties.

27 See S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky. App. 2005), Cain v. Cain, 777 S.W.2d 238 (Ky.App. 1989), and Spears v. Spears, 784 S.W.2d 605 (Ky. App. 1990).

28 On at least four (4) occasions the Supreme Court of the United States has found thatunwed fathers have a constitutional protected intent in their relationships with their children. SeeStanley v. Illinois, 405. U.S. 645, 92 S.Ct. 1208, 31 L. Ed. 2d 551 (1972); Quilloin v. Walcott, 434U.S. 246 (1978); Cabav v. Mohammad, 441 U.S. 380 (1979), and Lehr v. Robertson, 463 U.S. 248(1983).

12

Second, the Appellant has failed to show that there is no adequate remedy by appeal. When

the Family Court issues rulings with respect to custody and visitation, either James or Julia may take

an appeal as a matter of right. At that time, after the Family Court has entered findings based on the

evidence, the Court of Appeals will review those findings. However, to say that the appellate

procedure is not available to her is an outright falsehood. Furthermore, Kentucky Courts have

consistently held that custody decisions are properly addressed in the appellate process. Similarly,

paternity judgments may be appealed or addressed through post trial motions such as the use of CR

60.02.27

Third, the Appellant has failed to show great and irreparable injury. In the instant case,

Appellant has failed to meet the standard of “irreparable injury.” In fact, it is difficult to ascertain

what injury the Appellant is even alleging. Although the Appellant alleges an unspecified

“derogation of constitutional right,” there is no specificity with respect to the constitutional rights

that she alleges have been infringed. In fact, the wrongful denial of contact between the child, Julian,

and James is the only constitutionally protected parental right28 that should be considered by the

Court. It is utterly nonsensical for Appellant to argue the Court Order allowing visitation between

James and his son, Julian, might cause irreparable harm when Appellant herself fostered and

encouraged contact between the two. This Court need only look at the photographs taken by the

29 Affidavit of James Rhoades, Jr. dated 12/15/06, Exhibit H., attached G. If this contact wasto cause harm, why did Julia encourage it for the first sixty (60) days of the child’s life?

30 Ex Parte C.A.P., 683 S.O. 2d 1010 (Alabama, 1996) interprets the Alabama uniformparentage act, ALA. Code Section 26-17-1 et.feq.

31 See Donald M. Zupanec, Annotation, Who May Dispute Presumption of Legitimacy ofChild Conceived or Born During Wedlock, 90 A.L.R.3d 1032 (1979).

13

Appellant Mother to understand the ludicrous nature of this argument.29 In actuality, the harm being

caused to both father and son is the denial of contact. The Supreme Court should not condone the

selfish behavior that the Appellant is exhibiting and thus the denial of the Petition for Writ of

Prohibition must be affirmed.

Finally, the Appellant’s reliance upon cases from other states is both unpersuasive and

inappropriate. As the Supreme Court of the United States has indicated, paternity cases such as this

one, should be based upon the particular statutes of each jurisdiction. Basing arguments on

jurisdictions with different statutes is illogical. This Court should look with disfavor against the

“string cites” which do not purport to examine or interpret the Kentucky statute. For example, the

Alabama case30 interprets the Alabama statute. Moreover, the Alabama case was a direct Appeal

rather than a Writ of Prohibition. Similarly, the following jurisdictions interpreted statutes governing

each individual jurisdiction: California, Florida, Iowa, Kansas, North Dakota, Massachusetts,

Oklahoma, Pennsylvania, Texas, and Utah. If the Court desires to look to the statutes of other states,

it would be well advised to look to the general trend rather than any individual state. Pursuant to the

annotation cited in Appellant’s brief, it has been “generally held that the presumption is rebuttable

upon the presentation of proof sufficient to establish that the husband of the mother of the child is not

the child’s father.”31

32 Tackett v. Tackett, 508 S.W.2d 790 (Ky. 1974).

33 Simmons v. Simmons, 479 S.W.2d 585 (Ky. 1972);

34 Human Leukocyte testing, a type of blood test.

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III. Appellant’s Purported “Defense” of a Legal Presumption is Inappropriate.

The presumption of paternity afforded married couples is not an absolute bar to the custody

claim of a biological father. Contrary to the assertions in the Petition for a Writ, there is no bar

against a biological father seeking relief from the Court. The Appellant’s attempt to use a legal

presumption as an absolute bar is inappropriate. Appellant has failed to cite a single Kentucky statute

or Kentucky case to support her position, but rather meekly admits that this issue has not been

addressed in Kentucky. However, this is not the case, Kentucky Courts have consistently held

against the proposition.

Kentucky cases, including but not limited to, Tackett v. Tackett,32 instruct that the presumption

of legitimacy is rebuttable. The Tackett Court found that the presumption “is not conclusive but is

rebuttable and may be overcome by factual evidence.” Similarly, in Simmons v. Simmons33,

Kentucky’s Highest Court held that, “Though rebuttable, it [the presumption of legitimacy] can be

overcome only by evidence so clear, distinct and convincing as to remove the question from the realm

of reasonable doubt.”

From Simmons v. Simmons, one must conclude the Trial Court will reasonably review the

evidence as “to remove the question from the realm of reasonable doubt.” In Simmons, for example,

the Trial Court relied upon the HLA testing34 principally, but not exclusively. In that case, the testing

of paternity was within a 99.93% degree of accuracy. Thus, the Appellant Court affirmed the Trial

Court’s judgment.

35 See Donald M. Zupanec, Annotation, Who May Dispute Presumption of Legitimacy ofChild Conceived or Born During Wedlock, 90 A.L.R.3d 1032 (1979).

36 Kentucky courts have even allowed putative grandparents to seek visitation without thebenefit of a paternity declaration. See Posey v. Powell, 965 S.W.2d 836 (Ky. App. 1998).

37 Authorities in Support of the Petition filed on behalf of Julia and Jonathan Ricketts, filedon or about December 7, 2006, p.7.

15

As noted hereinabove, Kentucky Courts have allowed the presumption to be rebutted by clear

and convincing evidence. That is precisely what James Rhoades has done. There is no statute which

maintains that the presumption is a bar in Kentucky law. In fact, the statutes expressly allow a parent

(pursuant to KRS 403.280) or a putative father (KRS 406.021) to bring such an action. Appellant’s

claim that a parent or putative father may not bring forth an action in the face of controlling statutes

border on misrepresentation of law to this Court. In sum, it cannot be stated that the presumption,

which by definition may be overcome, is a bar or a defense to these actions.

Additionally, Kentucky law stands for the proposition that James Rhoades is entitled to have

the Court address his claims. As stated in the secondary source cited by the Appellant Mother, “the

resolution of this issue frequently turns on whether the statutory scheme in place allows the putative

father standing to assert paternity.”35 Unlike the “wishful thinking” defenses of Julia, James relies

upon Kentucky’s statutory scheme.36

In fact, the legal citations of the Appellant Mother are directly contradicted by the controlling

Kentucky statute. In her statement of authorities, the Appellant Mother states that “the Uniform Act

on Paternity does not permit the Party in Interest to bring an action for paternity.”37 However, the

controlling language shows this to be a falsehood. Specifically, KRS 406.021 states that “paternity

may be determined upon the complaint of the mother, putative father, child, person, or agency

substantially contributing to the support of the child.” In the instant case, there is no question that

38 Michael H. v. Gerald D., 491 N.S. 110, 109 S.Ct. 2333, 105 L. Ed. 2d 91 (1989).

39 The California exceptions include the natural father filing an affidavit of Paternity withintwo years of the child’s birth.

40 California Evidence Code Ann. Section 621 (West Supp. 1989).

41 It is important to note that 5 members of the Court in Michael H. refusal to foreclose “thepossibility that a natural father might have a constitutionally protected interest.”

42 S.R.D. v. T.L.B., 174 S.W.3d 503 (Ky. App. 2005).

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James Rhoades is the putative father of Julian. In fact, the DNA test clearly and convincingly proves

that he is the biological father of the child.

The Appellant’s reliance upon the United States Supreme Court case of Michael H. v. Gerald

D38 is grossly misplaced. In Michael H., the Supreme Court, in a sharply divided plurality opinion,

declared that a California statute did not violate the federal constitution. The California statute stated

that, absent certain circumstances,39 a presumption may only be rebutted by the wife or her husband.40

However, neither the California Statute nor the Supreme Court referenced the Kentucky statutes or

case law which will govern this case. Most importantly, the Kentucky statutes and the case law

provide that the presumption is rebuttable while its California counterpart states that the presumption

is “conclusive.” The Supreme Court determined that the question was one of legislative policy and

not constitutional law. As Kentucky has chosen a different legislative and statutory scheme, the case

is neither controlling nor relevant.41

Similarly, the Appellant’s representations concerning S.R.D. v. T.L.B42 are misleading.

Although the Appellant cites the S.R.D case multiple times in her brief, it fails to support the

Appellant’s position in any fashion. As the Court may recall, S.R.D. was a case in which a man

sought to maintain his custody rights, yet not pay Child Support, for a 9 year old girl. Not

43 16 L. Graham & J. Keller, Kentucky Practice- Domestic Relations Law § 23.4 (2d. ed.1997)

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surprisingly, the Trial Court found that he could not “have his cake and eat it too,” with the Court of

Appeals affirming the case.

The Appellant claims that S.R.D. holds that only Parties to the marriage may contest the

presumption of legitimacy. The case never makes this holding. In fact, the biological father was

never identified in the litigation before the Family Court or the Kentucky Court of Appeals. As the

biological father was not a party to the litigation, the S.R.D holding does not address the potential

claims of a biological father.

Additionally, the Appellant claims that S.R.D. stands for the fact that parentage by estoppel

can be applied under the current facts scenario. However, it cannot be used as a defense to the claims

of James Rhoades. Estoppel is inapplicable as it requires that the Party to be estopped must make

misrepresentations; however, James Rhoades has never misrepresented a fact as he brought this

action to reveal the truth regarding paternity. Finally, despite the claims of the Appellant, S.R.D. does

not support the fact that a writ is appropriate. S.R.D. was decided nine (9) years after the birth of the

child and the Court of Appeals never considered a writ nor did it issue one. In sum, the Appellant

has misrepresented both the holding and significance of this case.

In citing the marital presumption as a defense to James’ paternity action, the Appellant

neglected to include another presumption that operates under Kentucky law. Kentucky has a genetic

testing presumption, KRS 406.011, as well as the marital presumption. Kentucky case law reflects

that paternity determinations are a function of biological connection to the child.43 The Family

Court and this Honorable Court must consider both presumptions when deciding paternity actions.

WHEREFORE, James Rhoades, Jr., the Real Party In Interest, respectfully requests that the

Supreme Court affirm the Court of Appeals ruling on the Writ of Prohibition and remand the case for

further proceedings to be conducted in the Jefferson Family Court consistent with the best interest

of the Parties’ minor child.

Date: June 8, 2007 Respectfully submitted,

HELMERS DEMUTH & WALTON PLC

By:____________________________John H. Helmers, Jr.Troy DeMuth

200 Republic Building429 W. Muhammad Ali Blvd.Louisville, KY 40202(502) 581-0077Counsel for Real Party, James G. Rhoades, Jr.

19

APPENDIX

A. Deposition of Julia Nuss Ricketts.

B. Petition for Custody and Support dated 9/26/2006.

C. Verified Response to Request for Admissions dated 12/7/2006.

D. Order dated 11/30/2006.

E. Respondent’s Compliance with Court Order dated 3/7/2007.

F. Notice of Compliance with Court Order dated 4/12/2007.

G. Affidavit of James G. Rhoades, Jr., dated 12/15/2006.