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Tuesday, Apr.

29, 2008

Despite DNA, Dad's Paternity Denied

By Michael Lindenberger

For nearly two years, James Rhoades, a university librarian in Tallahassee, has been fighting
to establish in law what science and fact already have shown beyond any doubt: He is the
biological father of the boy dubbed J.A.R. He's got DNA tests to prove it, and videos and
loads of pictures of him with the boy. In the photos too are the boy's mother, J.N.R., whom
Rhoades met while taking an online graduate course. She was — and still is — married to
another man, who was stationed at a Pensacola Air Force base during their affair in 2005.
And that's the problem.

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

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.

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