# Petition for Writ of Certiorari — N. E. v. Hedges

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0092%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 960

## Text

-6-
“fundamental right,” whether strict scrutiny or rational-basis
scrutiny should apply, whether the state met its burdens to
demonstrate “narrow tailoring” and a “compelling state
interest,” or any other issue raised in the combined 90 pages
of the “Appellant’s Brief” and “Appellant’s Reply Brief,”
the panel decision reduced the issues in this case to the
following “Straw Man” argument:

Plaintiff makes a kind of ‘fairness’ or ‘reciprocity’
argument. *** His ‘fairness’ argument seems to be
that he should receive this constitutional right [i.¢.,
the right to decide not to become a parent after
conception] in exchange for the woman’s right to
abort her pregnancy.

(App. B4-B5S). The sole sentence in the Sixth Circuit's
decision which references Due Process and levels of
scrutiny reads as follows:

Courts have never found that legal classifications
based on this biological relationship of fathers
and their children were subject to a high level of
scrutiny. See Parham v. Hughes, 441 U.S. 347,
355-57 (1979) (upholding wrongful death
statute granting cause of action only to unwed
mothers, not unwed fathers, and imposing low
level of scrutiny), Rivera v. Minnich, 483 U.S.

~ =

574, 580 (1987) (“putative father has no
legitimate right and certainly no liberty interest in
avoiding financial obligations to his natural child
that are validly imposed by state law”);
Developments in the Law — The Constitution
and the Family, 93 HARV. L. REV. 1156,
1270-83 (1980).

(App. B6).

The Sixth Circuit concluded its analysis by
upholding the District Court’s award of sanctions against
petitioner: “We cannot imagine that any federal court
would agree with plaintiff's principle...” (App. B8-B9).

Petitioner filed a “Petition for Panel Rehearing and
Suggestion for Rehearing En Banc” which the Sixth Circuit
denied on-March 14, 2005. (App. Al-A2).

Vv.
REASONS FOR GRANTING THE PETITION

If women have the right to choose if they become
parents, men [should] have that right too. There is
a connection between legalizing abortion for
women and ending of paternity suits for men.

Giving men their own choices would not deny
choices to women. It would only eliminate their
expectation of having those choices financed by
men.

-- Former N.O.W. President Karen

DeCrow, Sexist Justice (Random
House 1974).

The Sixth Circuit has decided an important issue of
federal Constitutional law that has not been - but should be
- settled by this Court: where one parent enjoys a
fundamental right to avoid biological or legal parenthood —
a fundamental right of parental, family, marital,
reproductive, procreative, and personal privacy to choose
when and with whom to become a parent — that right must
be fundamenial to each parent. Yet by ruling that a state
may interfere in the status quo of private family decisions
and force someone to become a parent in the eyes of the
law, the Sixth Circuit thumbs its nose at this fundamental

right to “procreational privacy.”

By refusing to discuss (or even acknowledge)
petitioner’s position that a male has a post-conception
fundamental right to decide whether to become a parent, the
Sixth Circuit’s decision commits two disservices. First, the
Sixth Circuit’s decision implies that no such right exists

-9-

when, in truth, this fundamental right is an inescapable
outgrowth of numerous Supreme Court cases including
Planned Parenthood v. Casey, Planned Parenthood v.
Danforth, and several others.

Second, the Sixth Circuit rewrites the standard for
imposition of sanctions on an unsuccessful plaintiff, the
Sixth Circuit’s opinion replaces this court’s Hughes v.
Rowe, 449 U.S. 5 (1980) standard with a new “We cannot
imagine...” standard. In essence, the Sixth Circuit's opinion
sends a foreboding message that not only will constitutional
claims about procreational privacy for men not be
acknowledged, anyone who dares tread on such sacred
ground will be punished harshly with sanctions. If this is the
intended message ~ if an entire gender’s post-conception
procreational privacy rights are to be discarded and
invalidated — this is a step that should be taken by the
Supreme Court.

A. Petitioner has a “Fundamental Right” to
Decide for Himself When, Where, and With Whom He
Will Beget a Child and Become A Father

Petitioner’s position in this case can be summarized
with the following set of premises and the resulting

conclusion:

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P,;: . Parents enjoy a fundamental right to
procreational privacy which includes the night to
decide not to become a parent even after conception.

P,: Though this fundamental right has only found
voice as applied to female biological parents, it must
extend to each biological parent.

P;:; Kentucky’s statutory scheme imposes
parenthood on biological fathers while denying them
any right or opportunity to avoid parenthood after
conception.

Therefore: Kentucky's statutory scheme violates
this biological father’s fundamental right to procreational
privacy.

1. The Right to Procreational Privacy

The right to privacy/autonomy includes the right to
make one’s own decisions about procreation and _
parenthood free from government interference. Our
Constitution jealously protects “the private realm of family
life which the state cannot enter.” Prince v. Massav/usetts,

321 U.S. 158, 166 (1944). Time and time again, the
Supreme Court has acknowledged:

-l1l-

the right of the individual, married or single, to be
free of unwarranted governmental intrusion into

matters so fundamentally affecting a person as the

decision whether to bear or beget a child.
Eisenstadt v. Baird, 405 U.S. 438, 453 (1971). This “right
of personal privacy” — first recognized in Griswold v.
Connecticut, 381 U.S. 479 (1965) ~ includes the
recognition that an individual’s “freedom of personal choice
in matters of marriage and family life” occupies a central
place among the liberties protected by the due process
clause. Akron v. Akron Center for Reproductive Health
Inc., 462 U.S. 416, 426 (1983). While the Court has never
defined the specific parameters of the “right of privacy,”
that liberty

includes ‘the interest in independence in making
certain kinds of important decisions.’ While the
outer limits of this aspect of [protected liberty]
have not been marked by the Court, it is clear that
among the decisions that an individual may make
without unjustified government interference are
personal decisions ‘relating to marriage,
procreation, contraception, family relationships,
and childrearing and education.’

~12-

Carey v. Population Services International, 431 U.S. 678,
684-85 (1977) (citations omitted).

The Sixth Circuit’s decision, though, implies that
this fundamental right to procreational privacy stops at the
male parent’s decision whether or not to have sex.
However, this Court has never held that a parent’s liberty
interest in parenthood stops at the decision whether to have
sex; indeed, ever since Roe v. Wade, the federal courts have
spent years demonstrating that sex is not sufficient to act as
a waiver of a mother’s constitutional rights; petitioner
seeks judicial recognition that fathers are equally deserving
of constitutional protection. Justice O’Connor’s majority
opinion in Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833 (1992) proves
instructive:

These are intimate views with infinite
variations, and their deep, personal character
underlay our decisions in Griswold,
Eisenstadt, and Carey. The same concerns
are present when the woman confronts the
reality that, perhaps despite her attempts to
avoid it, she has become pregnant.

Id. at 853 (emphasis added). The Casey Court recognized
that the decision whether to have sex is not the end-all of

~19e

this fundamental rights analysis. If a woman’s right to
decide whether to be a mother survives failed efforts to
avoid conception, then it is inescapable that a father’s right
to decide whether to be a father must also survive failed
efforts to avoid conception.

2. Extending the Right to Men

The Sixth Circuit’s opinion next declares that the
biological relationship | bicteciest Others ond Gaats
Sixth Circuit ignores several of this Court’s opinions.

In Planned Parenthood v. Danforth, 428 U.S. 52, 69
(1976), the Supreme Court took the next step by recognizing
a father’s “deep and proper concern and interest” in his wife’s
pregnancy and in the fetus she carries. Justice Stewart
elaborated further, stating “that a man’s right to father
children and enjoy the association of his offspring is a
constitutionally protected freedom” and that his Due Process
rights compete with the mother’s rights rather than being
subsumed by them. /d. at 90 (Stewart, J., concurring). And in
dissent, three more Justices stated that a father’s interest in
the decision whether to carry his child to term “may be
unmatched by any other interest in his life.” /d. at 93 (White,
J., dissenting).

=ige

The majority opinion in Planned Parenthood v. Casey,
505 U.S. 833 (1992), goes even further by equating the
mother’s and father’s respective fundamental rights:

If this case concerned a State’s ability to require
the mother to notify the father before taking
some action with respect to a living child raised
by both, it would be reasonable to conclude,
generally, that the father’s interest in the welfare
of the child and the mother’s interest are equal.

Before birth, however, the issue takes on a
different cast. It is an inescapable biological fact
that state regulation with respect to the child a
woman is carrying will have a far greater impact
on the mother’s liberty than on the father’s. The
effect of state regulation on a woman’s liberty is
doubly deserving of scrutiny such a case, as
the State has touched not only upon the private
sphere of the family, but upon the very bodily
integrity of the pregnant woman. The Court
has held that, when the wife and the husband
disagree on this decision, the view of only one of
the two marriage partners can prevail. Inasmuch
as it is the woman who physically bears the child
and who is the more directly and immediately
affected by the pregnancy, as between the two,

#15-

the balance weighs in her favor. * * * Ifthe
right of privacy means anything, it is the right of
the individual, married or single, to be free from
unwarranted governmental intrusion into matters
so fundamental as the decision whether to bear
or beget a child. The Constitution protects
individuals, men and women alike, from
unjustified state interferenc. even when that
interference is enacted into law for the benefit
of their spouses.

Id. at 895-96 (emphasis added).' In short, the mother’s choice

In addition to these, the Supreme Court has decided at least six other cases
which either explicitly or unplicitly recognize a biological father’s
constitutional rights in decisions regarding the nature and extent of his
parenthood. See Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (man’s
decisions on “procreation, childbirth, child-rearing, and family
relationships” are “part of the fundamental ‘right of privacy."”), Stanley v.
Illinois, 405 U.S. 645, 651 (1°72) (Due Process clause entitled father to
fitness hearing before his illegitimate children could be removed from his
custody, “The private interest here, that of a man in the children he has sired
and raised, undeniably warrants deference and, absent a powerful
countervailing interest, protection.”), Quilloin v. Walcott, 434 U.S. 246,
255 (1978) (recognizing biological father’s substantive due process rights "
but holding those rights not impermissibly burdened), Caban v.
Mohammed, 441 U.S. 380 (1979) (invalidated statute under which
biological father’s children could be adopted without his consent), Lehr v.
Robertson, 463 U.S. 248, 261 (1983) (recognizing constitutionally-

prevails because the abortion decision implicates a second
fundamental right for her, i.e., the right to bodily integrity.

But the male’s fundamental right to “basic control
over [his] life” does not just vanish, that a pregnant woman's
wishes trump the father’s wishes at that stage of parenthood is
an accident of biology — not a demeaning of the father’s
fundamental rights. Just as a woman has the right to decide
not to be a mother even after conception, the sperm-donor’s
decision whether to be a father after conception is
fundamentally his. Though he cannot manifest that right by
compelling an abortion, the case at bar was to explore his

alternatives.

3. How Kentucky's Statutory Scheme Violates the
Fundamental Right

When a putative father is dragged into a paternity
suit, what is at stake

protected parental nights for fathers who participate m raising thei,
illegitimate children), Michael H. v. Gerald D., 491 U.S. 110 (1989)
(majority believed that under proper curcumstances, biological father has
substantive due process nght to dictate whether his child will be adopted by
someone else (four justices in dissent, Stevens, J, agreeing but concurring
in result)).

= >

is not merely the prospect of a discrete payment in
satisfaction of a limited legal obligation. Rather, it
is the imposition of a lifelong relationship with

Rivera v. Minnich, 483 U.S. 574, 583 (1987\(Brennan, J.,
dissenting).

Kentucky’s paternity, child support, and
adoption/termination of parental nghts statutes violate
petitioner’s fundamental right not to be a father in four
ways. First, Kentucky’s laws create a mechanism for the
biological mother to enforce her right to decide whether or
not to become a mother (abortion and adoption) but fail to
afford a similar mechanism for enforcement of the biological
father’s right. (App. F 1).

Second, Kentucky’s termination of rights statutes
create a process which in practice gives the biological
mother the right to terminate her own rights and the
biological father’s rights at any time but fails to afford the
biological father the right to terminate his own rights under
any circumstances without the mother’s consent.

Third, Kentucky's adoption statutes and “de facto
custodian” statutes give the biological mother and a child’s

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step-father the exclusive right to decide whether petitioner's
mechanism by which to rompel or even participate in that
decision. (App. F1, G1).

Fourth, by forcing him to undergo paternity testing
against his will, Kentucky’s paternity statutes force a formal
recognition of parenthood on unwilling men. Petitioner did
not want to become a father, and petitioner was not a father
in the eyes of society or in the eyes of the law for the first
seven years of minor E.D.L.’s life, under the status quo,
petitioner was not a father. It was not unti] Kentucky
forced petitioner to participate in paternity proceedings that
petitioner became a father in the eyes of society and in the
eyes of the law. It is that interference in the status quo
by the state that violated petitioner’s procreational
privacy.

a The Import of the Sixth Circuit's Decision

The Sixth Circuit’s decision in this case is in direct
conflict with this Court’s “procreational privacy” The District Court did not dispute that petitioner’s views about the social
injustice of “forced fatherhood” are “firmly held”; similarly, the District
Court seemed not to disagree that this lawsuit represents petitioner's “bona
fide attempts to expand the realm of constitutional law to embrace his
theory....” (App. C4). Indeed, cach and every one of the District Court's
“findings” addressed petitioner's failure to develop an argument — not
whether it was reasonable for him to file suit in the first place.

-22-

Riddle v. Egensperger, 266 F.3d 542, 547 (6th Cir. 2001).
See also Tahfs v. Proctor, 316 F.3d 584, 590 (6" Cir. 2003)
(District Court abused discretion in awarding fees against
unsuccessful plaintiff); Dubuc v. Green Oak Twnshp., 312
F.3d 736 (6" Cir. 2002) (same result in §1983 action where it
appeared District Court attempted to “teach Appellant a
lesson....”).

Perhaps the Sixth Circuit meant that petitioner’s views
are so repugnant that they will be met with disgust and vitriol
by every judge who hears them. Though unnecessary to
rehash the dangers of punishing litigants for bringing
unpopular views to court, note the view of the Washington
Court of Appeals when confronted with similar (Equal
Protection) issues:

The mother and guardian urge that this court
determine their attorneys’ fees to be assessed
against the father because the issues presented
by the father on appeal are frivolous. We
conclude that the appeal is not frivolous.
[Iindeed, the issues in this case are issues of
first impression in this State and present
debatable questions of substantial public

importance.

Linda D. v. Fritz C., 687 P.2d 223, 229-30 (Wash. App.

-23-

1984) (emphasis added). Not only does the Sixth Circuit's
opinion concede that this is the first time these issues have
reached a federal court, but no one can dispute that the issues
of child support and procreational autonomy for men are of
“substantial public importance.”

The petition for a writ of certiorari should be
granted.

Respectfully submitted,

P.O. Box 4144
Carmel, IN 46082-4144
317.598.1847
317.598.1846 (fax)

TABLE OF APPENDIX CONTENTS

U.S. COURT OF APPEALS - 6™ CIRCUIT:

Order [Denying Rehearing],

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Opinion [for publication),

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U.S. DISTRICT COURT, EASTERN DISTRICT
OF KENTUCKY, FRANKFORT DIVISION:

Memorandum Opinion and Order [awarding Attormeys’
fees], filed January 16, 2004.00... .cccccccceceeceeeeeees C1-C6

Memorandum Opinion and Order [dismissing case},

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AMENDMENTS AND STATUTES:

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FILED
MAR 14 2005
LEONARD GREEN, Clerk

Nos. 03-6680/04-5156
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

N.E., as biological father of E.D.L., a minor,
Plaintiff-Appellant,
vs.
CINDY J. HEDGES, et al,
Defendants-Appellees.

ORDER

BEFORE: MERRITT, GIBBONS, and ROGERS, Circuit
Judges.

The court having received a petition for rehearing en banc,
and the petition having been circulated not only to the
original panel members but also to all other active judges of
this court, and no judge of this court having requested a
vote on the suggestion for rehearing en banc, the petition
for rehearing has been referred to the original panel.

A-2

The panel has further reviewed the petition for rehearing
and concludes that the issues raised in the petition were
fully considered upon the original submission and decision
of the cases. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT
s/ Leonard Green, Clerk

B-1

FILED

DEC 20 2004

LEONARD GREEN, Clerk

RECOMMENDED FOR FULL-TEXT PUBLICATION
Case Nos: 03-6680; 04-5156

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

N_E., as biological father of E.D.L., a minor,
Plaintiff-Appellant,
v.

CINDY J. HEDGES, BRIAN HEDGES, and
JAMES C. MONK, in his official capacity as county
attorney for Carroll County,
Defendants-Appellees.

Appeal from the United States District Court for the
Eastern District of Kentucky at Frankfort. No. 03-00020—
Joseph M. Hood, District Judge.

Submitted: December 10, 2004

Decided and Filed: December 20, 2004

Before: MERRITT, GIBBONS, and ROGERS, Circuit
Judges.

OPINION

B-2

MERRITT, Circuit Judge. Plaintiff-appellant, a lawyer,
brings his own pro se action and appeal against the mother
of his child born out of wedlock and her husband, the
stepfather of the child. He also sues James Monk, the
county attorney of Carroll County, Kentucky, in his official
capacity. The theory of the action is that the Kentucky
statutes requiring a natural father to pay child support for
his son born out of wedlock, as enforced in the state courts
in this case by Monk,’ violate the substantive due process
protections of the Fourteenth Amendment. The Kentucky
courts have ordered plaintiff to pay $851 per month in child
support. The District Court dismissed plaintiff’ s complaint
for “failure to state a claim upon which relief can be
granted” under Rule 12(b)(6) of the Federal Rules of Civil
Procedure and awarded costs and attorneys fees to
defendants under 42 U.S.C. § 1988. The essential holding
of District Judge Hood was stated as follows:

’ Ky. Rev. Stat. § 406.021 provides the county attorney with the
authority to file paternity actions im the district courts of

Kentucky seeking to enforce child support obligations established by
the Kentucky Cabinet for Families and Children under

§ 405.430(4) of Kentucky law. These state paternity and child support
actions are encouraged and supported by the original Child Support
Enforcement Act, 42 U.S.C. §§ 651-669, an act interpreted and
explained in Blessing v. Freestone, 520 U.S. 329, 333-34(1997) ( “But
the state [under the federal law] must do more than simply collect
overdue support payments; it must also establish a comprehensive
system to establish paternity, locate absent parents, and help families
obtain support orders.”)

B-3

Plaintiff has identified no action taken by a state
actor that impacted in any way his choice to father
a child. As he complains of actions taken under
the Commonwealth’s statutes that permit the
establishment of paternity and the imposition and
enforcement of child support obligations, the
Court sees no evidencg that the state required him
to engage in the sexual \activity that resulted in the
conception of his son. Further he has identified no
action taken by a state actor that interfered in any
way with his choice to use or not to use
contraceptive methods—or additional
contraceptive methods, as the case may be—
during sexual activity to avoid his sexual partner’s
resulting pregnancy. Accordingly, he cannot state
a claim for a violation of his substantive rights
under the Fourteenth Amendment by the
application of the laws of Kentucky for
establishing paternity and imposing and enforcing
child support
obligations.

JA 81-82.

Although plaintiff sought money damages of $1
million and injunctive relief requiring the stepfather to
adopt the child and various other forms of relief in his
original complaint, he limits his appeal to a claim for
injunctive relief based on a declaration that Kentucky

B4

paternity and child support laws are invalid. He also seeks
an order enjoining Monk from enforcing child support
orders .mtered in his case in Kentucky courts. The parties
have filed extensive briefs but waived oral argument.

Plaintiff makes a kind of “fairness” or “reciprocity”
argument. His basic claim is that the mother of the child
“fraudulently induced” sexual intercourse, claiming that her
birth control pills would prevent pregnancy, then left the
state, married another man, and delayed seeking child
support for several years after birth. The plaintiff argues
that the Kentucky paternity and child support laws are
inconsistent with sexual and procreative “privacy” rights
recognized by the Supreme Court, e.g., Griswold v.
Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S.
113 (1973), Planned Parenthood of Central Missouri v.
Danforth, 428 U.S. 52 (1976); Planned Parenthood of

‘Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
The right to procreative privacy, he argues, “includes the
right to decide not to become a parent even after
conception,” and “must extend to both biological parents,”
so that “Kentucky's statutory scheme” must be invalidated
because it “imposes parenthood on biological fathers while
denying them any right or opportunity to decide not to
become a parent after conception.” (Appellant’s Reply _
Brief, p. 3.).? His “fairness” argument seems to be that he

? Plaintiff's argument is succinctly stated at p. 6 of his reply brief as
follows:

B-5

should receive this constitutional right in exchange for the
woman’s right to abort her pregnancy.

State requirements, and federal encouragement, of
child support from unwed fathers has a long historical
tradition. It emanates necessarily from the biological
relationship, a relationship that may have only marginal

[I}t is disingenuous to pretend that imposing a child support
obligation is separate and distinct from forcing fatherhood
on an unwilling male. Even if Kentucky climuinated all child
support obligations tomorrow, its paternity laws would
remain unconstitutional. It is the fact that Kentucky forced
N_E. [p)aintiff] to participate in paternity proceedings which
proved his fatherhood that renders the statutory scheme
financial well-being of out-of-wedlock children is

off the streets and require cach of them to financially
support wards of the state, rather, Kentucky reserves that
burden for those men it has forced to become fathers. The
ONLY reason N_E. is forced to financially support minor
E.D.L. is because of the finding of paternity. It was
unconstitutional for Kentucky to force parenthood on N_E.
forced fatherhood, it is therefore unconstitutional for
Kentucky to impose a child support order on N_E.; the
issues are inextricably intertwined.

This argument appears to be based on arguments for new state
legislation in a law review article, Melanie McCulley, The

Male Abortion: The Putative Father's Right to Terminate His Interests
in and Obligations to the Unborn Child, 7 1.L. & POL’Y 1 (1998).

B-6

importance for the male in some cases like the one before
us in which the father seeks to remove himself completely
from the child. Courts have never forind that legal
classifications based on this biological relationship of
fathers and their children were subject to a high level of
scrutiny. See Parham v. Hughes, 441 U.S. 347, 355-57
(1979) (upholding wrongful death statute granting cause of
action only to unwed mothers, not unwed fathers, and
imposing low level of scrutiny), Rivera v. Minnich, 483
U.S. 574, 580 (1987) (“putative father has no legitimate
right and certainly no liberty interest in avoiding financial
obligations to his natural child that are validly imposed by
state law”); Developments in the Law — The Constitution
and the Family, 93 HARV. L. REV. 1156, 1270-83 (1980).
The paternity requirement emanates primarily from the
state’s power to intervene under the parens patriae doctrine,
a doctrine that enforces the duties of biological parents, not
their constitutional rights.’ The parens patriae authority was
granted by the English sovereign to the chancery courts to

> The historical parens patriae power discussed here should not be
action, a type of action not necessarily related to either parents or
children. Used in the modern sense, parens patriae is “[a) doctrine by
which a government has standing to prosecute a lawsuit on behalf of a
citizen... .” BLACK’S LAW DICTIONARY 1137(7th ed. 1999). For
example, under section 4c of the Clayton Act, “[a]ny attorney gencral
of a State may bring a civil action in the name of such State, as parens
" patriae on behalf of natural persons residing in such State __ for injury
sustained by such natural persons to they property by reason of any
violation of section 1 to 7 of this title.” 15 U.S.C. § 15¢ (2000).

B-7 ‘

act as “genera! guardians of all infants,” 3 William
Blackstone, Commentaries *47. Under this doctrine, the
children’s welfare rather than the parents’ rights became
the most important factor, Developments in the Law — The
Constitution and the Family, supra, at 1221. American
courts have generally recognized the doctrine and regarded
as an important interest the fact that “the Staie is entitled to
adjust its legal system to account for children’s
vulnerability . . . .” Bellotti v. Baird, 443 U.S. 622, 635
(1979).

As the plaintiff concedes, there are no judicial
decisions recognizing a constitutional right of a man to
terminate his duties of support under state law for a child
that he has fathered, no matter how removed he may be
emotionally from the child. Child support has long been a
tax fathers have had to pay in Western civilization. For
reasons of child welfare and social utility, if not for moral
reasons, the biological relationship between a father and his
offspring — even if unwanted and unacknowledged —
remains constitutionally sufficient to support paternity tests
and child support requirements. We do not have a system
of government ‘ike ancient Sparta where male children are
taken over early in their lives by the state for military
service. The biological parents remain responsible for their
welfare. One of the ways the state enforces this duty is
through paternity laws. This responsibility is not growing
weaker in our body politic, as plaintiff seems to suggest,
but stronger as the passage of the Child Support Recovery

B-8

Act of 1992, Pub. L. No. 102-521, the Deadbeat Parents
Punishment Act of 1998, Pub. L. No. 105-187, and the
Child Support Performance and Incentive Act of 1998, Pub.
L. No. 105-200, would indicate. The sexual privacy cases
referred to by plaintiff do not give either biological parent
the right to escape responsibility after the child is born.
Neither the laws of biological reproduction nor the Due
Process Clause recognize the “fairness” arguments plaintiff
raises. Reproduction and child support requirements occur
without regard to the male’s wishes or his emotional
attachment to his offspring.

With respect to the District Court’s award of costs
and attorneys fees in civil rights cases under 42 U.S.C. §
1988 (court may award attorney's fees to the “prevailing
party” in “its discretion”), the appropriate standard provides
that the court may award such fees to a defendant if “the
plaintiff s action was frivolous, unreasonable, or without
foundation, even though not brought in subjective bad
faith.” Wayne v. Village of Sebring, 36 F.3d 517, 530 (6th
Cir. 1994). In the present case, the facts are not in dispute.
The plaintiff presents simply a novel legal theory, a theory
that would invalidate the paternity and child support laws
of the fifty states and the federal acts on child support. The
theory is that unwed fathers, as a matter of reciprocity,
should also be given the choice to deny any financial
responsibility for the child’s existence. It is a theory so
foreign to our legal tradition that it has no “foundation,” no
chance of success. We cannot imagine that any federal

B-9

court would agree with plaintiff's principle that the concept
of “procreative privacy” should be stretched to include the
constitutional right for a father to receive the constitutional
equivalent of the termination of the mother’s pregnancy by
allowing him the right to deny paternity and deny the duty
of financial support. The District Court therefore did not
ubuse its authority to award fees under § 1988.

Accordingly, the judgment of the District Court is
AFFIRMED

C-1

Eastern District of Kentucky
FILED

JAN 16 2004

AT FRANKFORT

LESLIE G. WHITMER

CLERK U.S. DISTRICT COURT

United States District Court
Eastern District of Kentucky
_ Frankfort

CIVIL ACTION No, 03-20-JMH
N.E., as biological father of E.D.L., a minor,

Plaintiff,

CINDY J. HEDGES, et al,

Defendants.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendants’ motions for
an award of attorney’s fees [Record Nos. 40 and 41].

C-2

Plaintiff has responded [Record No. 42]. The Court being
adequately advised, these motions are now ripe for
decision.

Defendants request that the Court enter an order directing
Plaintiff to pay their reasonable attorneys’ fees pursuant to
Fed. R. Civ. P. 54(dX(2), 42 U.S.C. § 1988, and 28 U.S.C. §
1927. For the reasons stated below, the Court believes that
the requested attorneys’ fees are warranted under 42 U.S.C.
§ 1988.

1. ATTORNEYS’ FE&S FOR PREVAILING
DEFENDANTS LIMITED TO THOSE 42 U.S.C. §
1983 ACTIONS WHICH ARE FRIVOLOUS,
UNREASONABLE, OR WITHOUT
FOUNDATION.

42 U.S.C. § 1988 provides for attorney's fees, in relevant
part, as follows:

In any action or proceeding to enforce a
provision of sections... 1983... of this title. ..,
the court, in its discretion, may allow the
prevailing party, other than the United
States, a reasonable attorney's fee as part of

While Defendants have, indeed, prevailed on the merits in
this matter, it is not enough to simply “win.” Rather,

C-3

prevailing defendants in a § 1983 action may recover
attorney’s fees from the plaintiff only if the Court finds that
“the plaintiff s action was frivolous, unreasonable, or
without foundation, even though not brought in subjective
bad faith.” Christiansburg Garment Co. v. EEOC, 434
U.S. 412, 421 (1978) (articulating standard for attorney’s
fees available to the prevailing defendant in action brought
under Title VII of the Civil Rights Act of 1964), Hughes v.
Rowe, 449 U.S. 5, 14-15 (1980) (adopting same standard
for prevailing defendants in matters brought under 42
U.S.C. § 1983).

This is to say that “[t}he plaintiff's action must be meritless
in the sense that it is groundless or without foundation.”
Hughes, 449 U.S. at 15. Thus, Plaintiff is correct when he
argues that his action was not meritless simply because his
theory might represent an unpopular view or have been
based on facts that were “somewhat questionable or
unfavorable at the outset of litigation.” Houston v. Norton,
215 F. 3d. 1172, 1175 (10 Cir. 2000).

Nonetheless, the Court is of the opinion that Plaintiff's
claims were, at best, frivolous and, at worst, without any
foundation whatsoever. In either event, they are certainly
of the nature contemplated by Christianburg Garment Co.
and Hughes. His belief — no matter how firmly held — that
Kentucky's child support laws represent a “systemic social
injustice” cannot a wrong of constitutional proportions
make, and his allegedly bona fide attempts to expand the

Cag

realm of constitutional law to embrace his theory cannot.
make the case ariy less frivolous. [Response at 3.] His
firmly held belief could not make the Fifth Amendment's
protections, directly applicable only to actions taken by the
federal government, expand to encompass county or state
government officials. The Court recalls that Plaintiff,
notwithstanding his many pages of pleadings, did not and
could not identify a state action which interfered with any
substantive right or ability to become or avoid becoming a
father. Similarly, his firmly held belief could not mask the
fact that his claim of a violation of his Fourteenth
Amendment right to equal protection of the law was
without any basis whatsoever. Notwithstanding the fact
that the Court was able to conduct a very basic analysis of
the situation, a fact the Plaintiff no doubt believes to lend
some credence to his claim, he was unable to muster up any
argument to support his claim — not identifying a distinct
and unequally treated class of which he purported to be a
part, a fundamental right that was in any way impacted, or
a theory by means of which the Court could at least muse
upon the legislature’s rational basis for the allegedly
unconstitutional statutes. There is no doubt in the Court’s
mind that his claims were frivolous and, thus, warrant an
award of attorneys’ fees for the prevailing Defendants in
this matter.

2. ATTORNEYS’ FEES CLAIMED BY
DEFENDANTS MUST BE REASONABLE

C-5

A reasonable attorney’s fee under sec. 1988 is determined
by the reasonable hourly market rate in the relevant
community for similar work multiplied by the amount of
hours reasonably expended. Blum v. Stenson, 465 U.S.
886, 893 (1984); Hadix v. Johnson, 65 F.3d 532, 535-36
(6™ Cir. 1995). Plaintiff has not objected to the hourly fees
proposed by counsel for Defendants, and the Court finds
that the fees suggested are, indeed reasonable.

Plaintiff does, however, object to the 3.5 hours reported by
Hon. Dawahare for her defense of Defendants Brian and
Cindy Hedges as unreasonable, pointing out that the
dispositive and procedural motions and the motion for
attorney’s fees submitted on their behalf were identical to
those submitted by Defendant Monk. He theorizes that she
has not generated one single word of original research or
writing on their behalf, choosing instead to submit a
carbon-copy of those pleadings produced by counsel for
Defendant Monk. Even if this is the case, the Court is of
the opinion that 3.5 hours is not an unreasonable amount of
time to contemplate and decide to adopt the rationale
articulated in the motions submitted by Defendant Monk’s
counsel, particularly considering the length of the
memoranda submitted in support of those motions and the
depth of analysis contained therein. Finding that the hourly
fee and the amount of time expended by all counsel on
those motions was not unreasonable under the
circumstances, the Court shall grant their requests.

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3. CONCLUSION
For the reasons stated above, Defendants’ motions for
attorneys’ fees shall be granted.

Accordingly, IT IS ORDERED:

(1) that Defendants’ motions for an award of attorney's
fees [Record Nos. 40 and 41] be, and the same hereby are,
GRANTED.

(2) that Plaintiff PAY the sum of $6,150.00 to Defendant
Monk; and

(3) that Plaintiff PAY the sum of $1,253.99 to Defendants
Cindy and Brian Hedges.

This the 16" day of January 2004.

Signed by: Joseph M. Hood, United States District Judge

D-1

Eastern District of Kentucky
FILED

DEC 05 2003

AT FRANKFORT

LESLIE G. WHITMER

CLERK U.S. DISTRICT COURT

United States District Court
Eastern District of Kentucky
Frankfort

CIVIL ACTION No. 03-20-JMH

N.E., as biological father of E.D.L., a minor,
Plaintiff,
vs.
CINDY J. HEDGES, et al,
Defendants.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the motions of Defendant
James C. Monk and Defendant Brian and Cindy Hedges to
dismiss or for summary judgment [Record Nos. 7 & 12].
Plaintiff has responded [Record no. 28], and Defendants

D-2

have replied [Record Nos. 34 & 36].' This matter is ripe
for a decision.

I. BACKGROUND
Plaintiff is the biological father of a child, E.D.L.
Defendant Cindy Hedges is the biological mother of E.D.L.
The Court understands that Defendant Brian Hedges is
E.D.L.’s stepfather, by virtue of his marriage to Cindy
Hedges. Plaintiff describes him as the “de facto father,
guardian, and custodian of E.D.L...since 1994.”
[Complaint at 6.] Defendant James C. Monk serves as
county attorney for Carroll County,Kentucky, and on June
27, 2001, he initiated paternity proceedings against Plaintiff
under applicable Commonwealth statutes for the purposes
of establishing paternity of E.D.L. and obtaining a child
support order against Plaintiff. Plaintiff's paternity of
E.D.L. was established in that proceeding, Carroll County
District Court Case No. 01-J-00060, and arrearages and
garnishment were imposed by virtue of the same.

In his complaint, Plaintiff alleges that the automatic
attachment of financial liability on a putative father upon a
finding of paternity under Ky. Rev. Stat. 405.00 ef seq., and

' Plaintiff has also filed a motion for leave to file a surreply [Record
No. 35]. Noting that neither the applicable Federal Rules of Civil
Procedure nor the Local Rules make provision for surreply and that
Plaintiff had the opportunity to address the issues he seeks to discuss in
a surreply, an opportunity that he chose to forego, the Court shall deny
his motion.

D-3

406, et seq., violates his right to equal protection pursuant
to the Fourteenth Amendment of the United States
Constitution and his due process rights under the Fifth and
Fourteenth Amendments, all as applied in the instant
matter.” He further alleges the violation of the same equal
protection and due process rights through the application of
Ky. Rev. Stat. 199.00 ef seq., leaving the decision of
whether or not to formally adopt a child to the non-parent
spouse of a custodial parent and affording no power or
authority to compel adoption by the spouse of the custodial
parent to the non-custodial parent. He seeks injunctive
relief, damages, and other relief as follows: (1) an order
declaring the automatic attachment of financial liability
and/or mandatory imposition of a support order upon a
finding of paternity under Ky. Rev. Stat. 405.00, ef seq.,
and 406.00, ef seq., to be unconstitutional as applied; (2) an

? Plaintiff has also filed a motion for leave to amend his complaint aru
to join an additional defendant, the Kentucky Cabinet for Families and
Children [Record No. 23]. The Kentucky Cabinet for Families and
Children is ‘an agency of the Commor’vealth of Kentucky and is
protected from his claims wader 42 U.5.C. 1983 by the cloak of the
Eleventh Amendment severeign immunity discussed in this
memorandum opinion and order. See sec. ITA, infra. Accordingly,
such an amendment would be futile. 7hiokol Corp v. Department of
Treasury, State of Mich, Revenwe Div., 987 F.2d 376, 382 (6" Cir.
1993). Noting that dis Court need not permit the amendment of a
compiaint where it would not survive a motion to dismiss, the Court
shall deny Plaintiff s motion Neighborhood Development Corp v
Advisory Council on Historic Preservation, 632 F 24 21, 23 (6” Cir.
1980).

D4

Kentucky from enforcing any and all support and arrearage
orders issued by the Carroll County District Court; (3) an
order compelling the adoption of his son by Defendant
Brian Hedges, (4) an order of damages in the amount of
$1,000,000.00 against Defendants, and (5) an award of
attorney's fees and costs. In the motion to dismiss of for
summary judgment, Defendant Monk argues that (1)
Plaintiff s claims against the county attorney should be
dismisses as barred by the Eleventh Amendment to the
Constitution of the United States, (2) that this Court should
abstain from accepting jurisdiction over the remaining
claims for prospective injunctive relief under the Younger
abstention doctrine, the Rooker-Feldman doctrine, the
domestic relations doctrine, or by virtue of the doctrines of
res judicata and collateral estoppel. Next, Defendant Monk
argues that (3) the complaint fails to state a claim upon
which relief can be granted and (4) that the complaint is
barred in part by the applicable one year statute of
limitations.

Il. STANDARD OF REVIEW

With regard to Defendants’ motions to dismiss this matter
under Fed. R. Civ. P. 12(6)(6) for failure to state a claim,
this Court must accept all factual allegations in Plaintiffs’
amended complaint as true. Broyde v. Gotham Tower, Inc.,
13 F.3d 994, 996 (6" Cir. 1994). The complaint may be
dismissed only if it is clear that no relief could be granted
on any set of facts that could be proven consistent with the

D-5

allegations, and this Court’s review amounts to a
determination of whether it is possible for the plaintiff to
prove any set of facts in support of its claims that would
entitle it to relief. Sistrunk v. City of Strongsville, 99 F.3d
194, 197 (6" Cir. 1996); Miller v. Currie, 50 F.3d 373, 377
(6™ Cir. 1995). Generally, this Court must ignore all
outside evidence submitted by the parties in ruling on the
pending motions to dismiss. However, a court may
consider public records, those matters of which the Court
may take judicial notice, and letter decisions of
governmental agencies.’ Jackson v. City of Columbus, 194
F.3d 737, 745 (6" Cir. 1999), overruled on other grounds
Swierkiewicz v. Sorema, 534 U.S. 506 (2002).

It. DISCUSSION

A. SUIT FOR DAMAGES AGAINST
DEFENDANT MONK IS BARRED BY SOVEREIGN
IMMUNITY UNDER THE ELEVENTH
AMENDMENT AS DEFENDANT MONK WAS
ACTING AS AN ARM OF THE STATE

Suits against an individual in his/her official capacity
“generally represent only another way of pleading an action
against an entity of which an officer is an agent.” Monell v.
New York Dept. of Social Services, 436 U.S. 658, 690, n. 55
(1978). “An official capacity suit is, in all respects other

> Thus, the Court will consider the pleadings and orders entered in
Carroll County District Court Case No. 01-J-00060, and alll appeals
taken therefrom, as they are matters of public record.

D-6

than name, to be treated as a suit against the entity.”
Kentucky v. Graham, 473 U.S. 159, 166 (1985) (citing
Brandon v. Holt, 469 U.S. 464, 471-72 (1985)). Therefore,
an official of the state is cloaked with the same immunity
as the state under the Eleventh Amendment. Suits brought
pursuant to sec. 1983 against st-*e governments or state
officers in their official capacity are barred. Will v.
Michigan Dept. of State Police, 491 U.S. 58 (1989).
However, municipalities and other local government units
are considered “persons” subject to suit under the
provisions of sec. 1983. Monell v. Department of Social
Services of City of New York, 436 U.S. 658, 690 (1978).
Thus, if an official suit is barred by the Eleventh
Amendment if the named official was acting as an arm of
the state but the suit will be allowed if the named official

was acting as an arm of the municipality.

In the present case, Defendant Monk has argued that he is
an arm of the state because he was enforcing the official
policy of the state through Kentucky statutes. Since
Defendant Monk is employed by the county, the Plaintiff
has argued that Defendant Monk is not immune from suit
pursuant to Monell. Accordingly, the Court must first
determine whether a county attorney enforcing state
statutes may ever fit within the Monell exception.

i. UNCONSTITUTIONAL ACTION
MUST BE EXECTUED BY THE FINAL

D-7

POLICYMAKER AND MUST REPRESENT
OFFICIAL MUNICIPAL POLICY
As noted above, municipalities and other local governments
are subject to suit for damages brought pursuant to § 1983.
However, there are limitations to the types of actions and
officers that can subject a municipality to the perils of suit.
“Congress did not intend municipalities to be held liable
unless action pursuant to official municipal policy of some
nature caused a constitutional tort.” Monell, 436 U.S. at
691 (emphasis added). Therefore, municipalities may be
directly sued for “monetary, declaratory or injunctive
peralhenerrncabtncates enn oe on ay
action “implements or executes a policy statement,
ordinance, regulation or decision officially adopted or
promulgated by that body's officers.” Jd. at 690.

The named officer of the municipality must be the final
policymaker for the alleged unconstitutional act or policy
and that policy must actually be municipal policy. Thus,
liability must be premised on a stronger basis than that of
respondent superior. /d at 692-93. “It is when execution
of a government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury that the
government as an entity is responsible under 1983.”
Monell, 436 U.S. at 694. In other words, the official must
be the final policymaker for the municipality, or in this
case, the county. In addition, the court must “ask whether
governmental officials are final policymakers for the local

D-8

government in a particular area, ot on a particular issue.”
McMillan v. Monroe County, 520 U.S. 781, 785 (1997) -
(emphasis added). Therefore, an individual, in this case,
the county attorney, is not categorically the agent of the
state or of the county. Instead, the official may be an agent
of the state when acting in one role and the agent of the
by each policymaker must be analyzed separately. The
court’s determination “of the actual function of a
government official, in a particular area, will necessarily be
dependent on the definition of the official’s function under
relevant state law.” /d. at 786.

In addition to showing that the agent is the final
policymaker, the Monell test, as clarified by the Sixth
Circuit, requires that “the plaintiff must ‘{i] identify the
policy, [2] connect the policy to the city itself and [3] show
that the particular injury was incurred because of the
execution of that policy’” in order to proceed in a suit
against an official. Garner v. Memphis Police Dept., 8
F.3d 358, 363-64 (6th Cir. 1993) (quoting Coogan v. City
of Wixom, 820 F.2d 170, 176 (6" Cir. 1987). Both parties
concede that the county attorney is the final policymaker in
the enforcement of Kentucky’s allegedly unconstitutional
child support laws. However, Plaintiff insists that the
question of liability ceases upon this determination. The
Plaintiff glosses over the second prong of the test as stated
Garner, to “connect the policy to the city [or the county]
itself.” Garner, 8 F.3d at 364. This component may not be

D-9

satisfied, as Plaintiff argues, by showing that the county
attorney is the final policymaker. (PI.’s Opposing Mem. At
8-11). Plaintiff must also demonstrate that the policy is the
official policy of the municipality. This analysis focuses
upon whether the policy implemented is that of the state of
Kentucky or of the municipality. As noted above, if the
county attorney is implementing state policy rather than
local or municipal policy, then he is an arm of the state in
regard to those duties. McMillan, 520 U.S. at 785, n. 2.

2. DEFENDANT MONK IS THE FINAL
POLICYMAKER FOR THE STATE, NOT THE
COUNTY, BECAUSE HE IS ENFORCING STATE
STATUTES
Relevant case law supports the Defendant’s assertion that
the county attorney, under the facts of this case, is an arm
of the state and, therefore, is immune from suit. In Pusey v.
Youngstown, the Sixth Circuit Court of Appeals held that a
county attorney was acting as a state agent when enforcing
Ohio criminal statutes. Pusey v. Youngstown, 11 F.3d 652
(6™ Cir. 1993); see also, Scott v. O'Grady, 975 F. 2d 366
(7 Cir. 1992), Echols v. Parker, 909 F.2d 795 (5™ Cir.
1990). In Pusey, the mother of a homicide victim sued the
county attorney in his individual and official capacity under
§ 1983 for failure to comply with Ohio’s victim impact
laws. Pusey, 11 F.3d at 654. Concluding that state
criminal laws and state victim impact laws are clearly the
policy of the state, the court concluded that the county
attorney, although employed by the city of Youngstown,

D-10

was acting “on behalf of the state when... prosecuting state
criminal charges” and reducing those charges. Pusey, 11
F.3d at 657. Since the county attorney was acting as a state
agent, the suit was treated as a suit against the state, and it
was barred by sovereign immunity. /d.

Plaintiff, who does not try to distinguish this matter from
Pusey, directs the Court's attention to Pembaur v.
Cincinnati. Pembaur v. Cincinnati, 475 U.S. 469 (1986).
In this case the Supreme Court found that the county
attorney was not protected from suit under § 1983.
Pembaur, 475 U.S. at 479. However, Pembaur is .
distinguishable from the present case and from Pusey by
separating the type of policy at issue in each case. In
Pembaur, several deputy sheriffs, although armed with
valid capiases to procure witnesses needed for trial, were
unable to gain entry to a physician's clinic. Pembaur, 475
U.S. at 472. Unsure of how to proceed, the deputy sheriffs
contacted their superior officer, who told tem to call the
assistant prosecutor. Jd After conferring with the county
prosecutor, the assistant prosecutor instructed the deputy
sheriffs to “go in and get” the witnesses. Jd The county
attorney was not acting under state policy when he directed
the police officers. Pembaur, 475 U S. at 473. The county
attorney was the final policymaker for the municipality
according to state law. Pembaur, 475 U.S. at 484-85. The
Supreme Court noted that the county prosecutor was not
rendering “legal advice,” but, rather, exercising his
authority, granted through state statute, to establish county

D-11

policy in these matters. Id. (“Ohio Rev. Code Ann. §
309.09 (A) (1979) provides that county officers may
‘require. ..instructions from [the County Prosecutor] in
matters connected with their official duties."”) Therefore,
the Court finds that Pembaur is distinguishable from Pusey,
as well as the case at bar, because the county attomey was
not enforcing statutes promulgated by the state legislature,
as in Pusey, but setting forth municipal policy expressly
delegated by the legislature.

The Sixth Circuit Court of Appeals clarified the above
distinction in Brotherton v. Cleveland, 173 F.3d 552 (6"
Cir. 1999). The Brotherton court stated that “[t}he essential
question asks whether [the defendant] could have chosen
not to use his authority under the state statute and how he
would use such authority; if he could have opted to act
differently, or not to act, he did not act as an arm of [the
state] when he formulated and implemented the contested
policy.” /d. at 556. The court also noted that “[t}his
distinction reconciles Garner and Pusey.” Id. at 556. This
line of reasoning further illustrates the distinction between
Pusey and Pembaur. The county attorney had the ability to
use his discretion in choosing if and how to act with regard
to the enforcement of the capiases in Pembaur. However,
the county attorney does not have the same degree of
decision-making power when enforcing a state statute as in
Pusey and the present case. As a result, the current
circumstances do not fall within the Monell exception to

the general rule that a suit for damages may not proceed

D-12

against an individual in his or her official capacity. Thus,
the current case is controlled by the Sixth Circuit's ruling in
Pusey.

In both the case at bar and Pusey, a county attorney was
enforcing state statutes. Although a county attorney is an
employee of the county, the Court agrees with Defendant
that a county attorney is acting as an arm of the state when
enforcing state policy represented by statutes. Thus,
Defendant Monk was acting as an arm of the state, just as
the county attorney in Pusey was an arm of the state, while
enforcing state statutes and the suit for damages may not
proceed against him.

B. SUIT FOR PROSPECTIVE INJUNCTIVE
RELIEF MAY PROCEED AGAINST DEFENDANT
MONK IN ACCORDANCE WITH EX PARTE
YOUNG

The law has long been settled that the Eleventh
Amendment allows suit for prospective injunctive relief
against a state official in his/her official capacity for
ongoing constitutional violations. Ex parte Young, 209
U.S. 123 (1908). By performing an unconstitutional act the
state official is stripped of his/her official or representative
character. /d. at 159-60. Both parties recognize the
validity of Ex parte Young doctrine. Defendant, however,
alleges that the case at bar falls within the special
sovereignty interest exception to this doctrine. See /daho v.
Coeur d’ Alene Tribe of Idaho, 521 U.S. 261 (1997).

D-13

Defendant contends that the Commonwealth of Kentucky
has a special sovereignty interest in “seeing that absentee
parents pay child support rather than make the state
taxpayers pick up that burden.”. [Reply at 9.]
Undoubtedly, the Commonwealth interests are served by
enforcing child support provisions. The Coeur d’ Alene
exception, however, is far too narrow to encompass the
present case.

1. NARROW COEUR D’ALENE
EXCEPTION DOES NOT ENCOMPASS
ENFORCEMENT OF CHILD SUPPORT LAWS AS A
SPECIAL SOVEREIGNTY INTEREST
In the first case applying the special sovereignty interest
exception, the Supreme Court found that a Native
American tribe was barred from bringing suit against the
state of Idaho seeking enjoyment over the submerged lands
of Lake Coeur D’ Alene and injunctive relief against Idaho
officials from exercising their regulatory power over the
same submerged lands. Coeur d’ Alene, 521 U.S. 261. The
Court, in a highly divided decision, found that the relief
sought infringed upon the sovereign interest in the
ownership of the submerged lands. /d. at 280. The state’s
interest in these submerged lands was “an essential attribute
of sovereignty.” Jd. at 283 (quoting Utah Div. of State
Lands v. U.S., 482 U.S. 193, 195 (1987). Furthermore, this
relief was the “functional equivalent to a quiet title action”
in that it sought to divest all benefits and control of the
lands from the State of Idaho. /d at 282. Therefore, the

D-14

actual relief sought, which was, in essence, a quiet title
action, was barred by the Eleventh Amendment. /d

Courts have interpreted Coeur d’ Alene very narrowly.
Martin v. Taft, 222 F. Supp.2d 940, 961 (S.D. Ohio 2002).
In accordance with Coeur d’ Alene, the 6" Circuit has
required a two part analysis. Jd; MacDonald v. Village of
Northport, Mich., 164 F.3d 964, 972 (6" Cir. 1999). The
court must first determine if a core sovereign interest is
implicated. Martin, 222 F. Supp.2d at 961. -If so, the court
must then examine “whether the relief sought is so
intrusive on the state’s sovereignty that it constitutes the
functional equivalent of relief the Eleventh Amendment
bars.” /d. at 961; MacDonald 164 F 3d at 973.

An analysis of relevant case law reveals that the
circumstances of the current case do not represent a core
sovereign interest. Courts have recognized few limited
categories of special interests for the states: (1) the
sovereign’s interest in land, (2) the power to tax, (3) the
emergency power of the governor to take private property,
and (4) the power, directly granted to the state by Congress,
to allocate tobacco settlement funds. See Martin v. Taft, 22
F. Supp.2d 940, 962-63 (S.D. Ohio 2002) (citing Coeur d’
Alene at 283, ANR Pipeline Co. at 1193, Barton v.
Summers, 293 F.3d 944, 955 (6" Cir. 2002); Duke Energy
Trading and Miig., L.L.C. v. Davis, 267 F 3d 1042, 1053-
$4 (9" Cir. 2001); ANR Pipeline Co. v.

Lafaver, 150 F.3d 1178, 1193-94 (10 Cir. 1998)).

D-15

Thus, the state’s special sovereignty interest in enforcing
child support statutes has not heretofore been established.
Although the State does have an interest in the enforcement
of its judgments, there is no evidence that this interest is
“an essential attribute of sovereignty.” Coeur d’ Alene, 521
U.S. at 281. Due to the very limited nature of these core
interests, the Court is unwilling to extend this exception to
the facts of this case. Thus the first factor of the Coeur d’
Alene exception has not been met.

Even assuming that this is a core sovereign interest, the
relief sought does not satisfy the second prong of the Coeur
d’ Alene test — whether the relief sought is the functional
equivalent of the type that the Eleventh Amendment bars.
Defendant contends that the Eleventh Amendment bars this
suit because a suit attacking existing child support orders is
actually retrospective in nature. However, there is no
indication that the type of relief sought is anything other
than prospecuve relief that is allowed under the Young
doctrine. Therefore, this suit, insofar as it seeks
prospective injunctive relief, may proceed against
Defendant Monk.

Cc. ABSTENTION AND RES JUDICATA
DOCTRINES

Defendants next argue that the plaintiffs remaining claims
are barred by the application of doctrine of Younger
abstention, Rooker-Feldman doctrine, and domestic

D-16

relations doctrine, and that this matter is res judicata. For
the reasons which follow, the Court disagrees.

1. YOUNGER ABSTENTION
Principles of comity and federalism underlie the doctrine
that a federal court should not interfere with an ongoing
state criminal proceeding by granting injunctive or
declaratory relief absent extraordinary circumstances.
Younger v. Harris, 401 U.S. 37, 43-54 (1971); Samuels v.
Macikell, 401 U.S. 66, 68-74 (1971). The same counsel
applies to non-criminal proceedings when important state
interests are involved. Middlesex County Ethics Comm. V.
Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). Thus,
through the teaching of Younger, abstention would be
required when: (1) state proceedings, judicial in nature, are
pending; (2) the state proceedings involve important state
interests, and (3) the state proceedings afford adequate
opportunity to raise the constitutional issue. /d.

In the instant matter, the Court does not believe that
Younger abstention is appropriate. Specifically,
Defendants have not identified any relevant pending state
proceedings. While Kentucky courts continue to exercise
jurisdiction over plaintiff's support obligations, it does not
appear that there is any matter pending before any court of
Kentucky which would afford adequate opportunity to raise

D-17

the constitutional issue.‘ Further and notwithstanding the
jurisdiction of the state courts over the continuing support
obligations, the Carroll Circuit Court remarked in its
opinion on the appeal of the Carroll District Court's
decision that it appears that the counterclaim, in which
Plaintiff attempted to raise a challenge identical to that
contained in the present complaint, was outside of the
limited jurisdiction of the Carroll District Court as stated in
KY. REV. STAT. 24A.110-130. This Court agrees.
Accordingly, the Younger doctrine may not be properly
invoked.

2. ROOKER-FELDMAN DOCTRINE
Federal district courts may not review the determinations of
a State court or interfere with a final state court judgment.
See District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 482-86 (1983); Rooker v. Fidelity Trust Co., 263
U.S. 413, 415-16 (1923). The Sixth Circuit Court of
Appeals has described the Rooker-Feldman doctrine as
follows:

“While defendants have argued that federal courts must abstain from
interfering with enforcement of state court judgments, retying on
Pennzoil Co. v. Texaco, Inc., the Court believes that this matter is
simply inapposite to that in Pennzoi! where not only had a state court
judgment been obtained, there was also a challenge to the vahdity of
the disputed statute actually pending i the state courts. Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1, 13-14 (1987)

D-18

[a] combination of abstention and res judicata
doctrines, [which] stands for the proposition that
federal district court may not hear an appeal of a
case already litigated in state court. A party raising
a federal question must appeal a state court decision
through the state system and then directly to the
Supreme Court of the United States.

United States v. Owns, 54 F 3d 271, 274 (6" Circ. 1995).
Plaintiff urges this Court to adopt the reasoning of the
Eighth Circuit Court of Appeals in Ballinger v. Culotia, a
matter in which the plaintiff sought relief under 42 U.S.C. §
1983 from a child custody judgment of state court and in
which the Court of Appeals determined that, under the
Rooker-F eldman doctrine, abstention would be proper.
Ballinger v. Culotta 322 F 34 546 (8* Cir. 2003). The
Court declines to do so, noting that there is no indication
that the plaintiff in Ballinger could not have raised his
federal question in the underlying state proceeding. Again,
this Court notes that the federal question raised by Plaintiff
has not been and could not have been litigated nor any final
judgment entered on the issue of the constitutionality of the
challenged statutes in the earlier state court proceedings.
Accordingly, the doctrine of Rooker-F eldman does not
apply to the circumstances at hand.

3. DOMESTIC RELATIONS DOCTRINE
As Defendants remind the Court, “[t]he whole subject of
domestic relations of a husband and wife, parent and child,

D-19

belongs to the laws of the States and not to the laws of the
United States.” /n re Burrus, 136 U.S. 586, 593-94 (1890).
No doubt, abstention from matters involving domestic
relations is an accepted exception to federal court diversity
jurisdiction, specifically “as it pertains to divorce and
alimony decrees and child custody orders.” See
Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992),
McCarty v. McCarty, 453 U.S. 210 (1981), McLaughiin v.
Cotner, 193 F.3d 410, 412-13 (6" Cir. 1999). Nonetheless,
Plaintiff has identified a federal question and seeks
damages in tort under § 1983, suitable for decision before a
federal district court. See Ankenbrandt, 504 U.S. at 703 &
706. Simply because Plaintiff s challenge touches on a
maters of domestic concern, the establishment of paternity,
child support obligations, and adoption, the Court will not
be making any assessment of support, any decisions
regarding Plaintiff's status as the father of his child, or
acting upon an adoption in this matter. See Boddie v.
Connecticut, 401 U.S. 371 (1971), Fernos-Lopez v. Lopez,
929 F.2d 20, 22-23 (1* Cir. 1991); Agg v. Flanagan, 855
F.2d 336, 339 (6" Cir. 1988). Accordingly, this Court is not
required to abstain and shall not do so in this matter.

a RES JUDICATA
“(28 U.S.C. §] 1738 requires federal courts to give the
same preclusive effect to state court judgments that those
judgments would be given in the courts of the State from
which the judgments would be given in the courts of the
State from which the judgments emerged.” Kremer v.

D-20

Chemical Const. Corp. 456 U.S. 461, 466 (1982). The
Kentucky law of res judicata or claim preclusion “may be
used to preclude entire claims that were brought or should
have been brought in a prior action, while the doctrine of
collateral estoppel [or issue preclusion] only applies to
issues actually litigated.” City of Covington v. Board of
Trustees of Policemen's and Firefighters’ Retirement Fund,
903 S.W.2d 517, 521 (Ky. 1995). In the instant matter, as
discussed above, it is quite clear that while Plaintiff
attempted to bring his 42 U.S.C. § 1983 claims as a
counterclaim to the underlying paternity case, the district
court did not have jurisdiction to hear his claims.
Accordingly, the merits of his constitutional attacks have
not been litigated nor could they have been. The claims at
hand are not res judicata.

Cc. FAILURE TO STATE A CLAIM

The Court now turns to a determination of whether or not
Plaintiff can state his remaining claims if the Court accepts
all factual allegations in Plaintiffs’ amended complaint as
true. In his complaint, pursuant to 42 U.S.C. sec. 1983,
Plaintiff alleges that the automatic attachment of financial
liability on a “putative” father upon a finding of paternity
under Ky. Rev. Stat. 405.00, et seq., and 406, et seq.,
violates his right to equal protectior pursuant to the
Fourteenth Amendment of the United States Constitution
and his due process rights under the Fifth and Fourteenth
Amendments, all as applied in the instant matter. He

D-21

further alleges the violation of the same equal protection
and due process rights through the application of Ky. Rev.
Stat. 199.00, et seq., leaving the decision of whether or not
to formally adopt a child to the non-parent spouse of a
custodial parent and affording no power or authority to
compel adoption by the spouse of the custodial parent to
the non-custodial parent.

“To state a claim under sec. 1983, a plaintiff must allege
the violation of a right secured by the Constitution and laws
of the United States, and must show that the alleged
deprivation was committed by a person acting under color
of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Accordingly and without needing to reach the issue of
whether Defendants Cindy J. Hedges or Brian Hedges were
state actors for purposes of sec. 1983 jurisprudence, this
Court must dismiss Plaintiff's sec. 1983 claims for the
reasons stated below

i. PLAINTIFF HAS FAILED TO STATE A
CLAIM UNDER THE FIFTH AMENDMENT
Plaintiff’ s claims under the Fifth Amendment shall be
dismissed as the due process protections afforded by the
Fifth Amendment pertain only to actions taken by the
federal government, not state or local governments as
alleged in this matter. See Bartkus v. Illinois, 359 U.S. 121,
124 (1959), Newsom v. Vanderbilt University, 653 F.2d
1100, 1113 (6" Cir. 1981)

D-22

2. PLAINTIFF CANNOT STATE A
CLAIM FOR VIOLATION OF HIS SUBSTANTIVE
DUE PROCESS RIGHTS UNDER THE
FOURTEENTH AMENDMENT
The Fourteenth Amendment provides that state and local
governments shall not deprive any person of “life, liberty,
or property without due process of law.” U.S. Const.
Amend. XIV. There has been some debate between the
parties as to whether or not Plaintiff complains of
violations of his procedural due process rights or his
substantive due process rights under the Fourteenth
Amendment. In his response, however, Plaintiff has
categorically stated that he does not allege any procedural
deficiency with regard to the proceedings in the earlier state
action. Rather, he states that his allegations concern a
violation of substantive due process. Accordingly, the
Court shall examine only that claim.

In a substantive due process analysis, the Court inquires
into whether or not the government has a sufficient
justification for taking away a person’s life, liberty or
property.” The Court must first ascertain which aspect of

* Plauntiff could also state a claim by identifying a state act so
outrageous that m shocks the conscience and is an official act which
“may not take place no matter what procedural protections accompany
them.’ G.M. Engineers v. West Bloomfield, 92 F.2d 328, 332 (6* Cis.
1990) (quoting Hayes v. Vessey, 777 F.2d 1149, 1152 (6" Cir. 1985)),
Pearson v. City of Grand Blanc, 756 F Supp. 314, 318-19 (E.D. Mich
1991). The Court does not find anything in the complaint or the

D-23

Plaintiff s life, liberty, or property has been impacted by a
state action in order to ascertain which level of scrutiny to
apply to the state actor’s reasons for acting. Ifa

will apply. If not, generally a rational basis test is applied.

With regard to what aspect of his “life, liberty, or property”
is at stake, Plaintiff first argues that the application of the
laws of Kentucky for establishing paternity and imposing
and enforcing child support obligations touches sufficiently
on his fundarnental rights with regard to procreation, i.e.,
the “decision whether to be a father,” so as to violate his
Fourteenth Amendment rights to due process. [Response at
30]. The same fundamental right, he asserts, empowers
him to compel an adoption of his son by the child’s
stepfather

Even though a fundamental right to procreate or not
procreate has been identified in American jurisprudence,
the Court is not convinced that Plaintiff can identify an
infringement of that right by the state in the instant matter °

records of the state proceedings that suggests behavior so outrageous as
to shock anyone's conscience in this way.

* Having ascertained that there exists a fundamental right regarding
the choice to beget a child, a right which takes various forms, the Court
1S not Convinced that there cxists within that fundamental right a subset
of liberty including the choice of whether or not to be charged with
paternity or whether or not to provide support to one’s child once that
child is conceived, at least not as it is understood by Plainsiff.

D-24

See Planned Parenthood v. Casey, 50S U.S. 833 (1992)
(unconstitutional to ban abortions prior to viability
although state may regulate abortions before viability so
long as it does not place an “undue burden” on access to
abortions); Carey v. Population Services International, 431
U.S. 678 (1977) (state law criminalizing sale or distribution
of contraceptives to minors, limiting distribution to
pharmacists, and forbidding advertisement or display of
contraceptives was unconstitutional), Roe v. Wade, 410
U.S. 113 (1973) (unconstitutional for state to prohibit
abortions prior to viability); Eisenstadt v. Baird, 405 U.S.

The Court remarks that there are two understandings of the
word “father.” The first involves anyone who provides sperm to
fertilize an egg There is nothing “putative” about Plaintiff's status in
this regard. As to the second type of “fatherhood,” the type of
involvement in the raising and nurturing of a child conceived in the
first sense, the Court does not understand Plaintiff s complaint to speak
to this type of fatherhood. Even if it had, the Court is not comvinced
that the challenged statutes interfere with any sori of privacy or
associational right that might be asserted by Plaintiff so as to be
unconsttutional Clearly, a biological parent has a fundamental liberty
interest in the custody of his or her child. See Santoaty v Kramer, 455
U.S. 745, 753-54 (1982). Even if the Court assumed in the face of its
sincere doubts that he could establish, as a corollary to an interest in
custody, a fundamental right regarding the right to choose whether or
not to be a father in the second, more social sense of the word, the
Court is convinced that the laws could survive the strict scrutiny
prescribed, for the state could present a compelling interest im the
welfare of chikdven tarough making sure that parents provide for thear
children's needs.

D-25

438 (1972) (state law prohibiting distribution of
contraceptives to unmarried individuals held
unconstitutional), Griswold vy. Connecticut, 381 U.S. 479
(1965) (state statute prohibiting use and distribution of
contraceptives held unconstitutional on basis of right to
privacy), Skinner v. Oklahoma, 316 U.S. 535 (1942) (state
statute allowing court-ordered sterilization of repeat
criminal offenders was unconstitutional).

Plaintiff has identified no action taken by a state actor that
impacted in any way his choice to father a child. As he
complains of actions taken under the Commonwealth’ s
statutes that permit the establishment of paternity and the
imposition and enforcement of child support obligations,
the Court sees no evidence that the state required him to
engage in the sexual activity that resulted in the conception
of his son. Further he has identified no action taken by a
state actor that interfered in any way with his choice to use
Of not to use contraceptive methods — or additional
contraceptive methods, as the case may be — during that
sexual activity to avoid his sexual partner’s resulting
pregnancy. Accordingly, he cannot state a claivn for a
violation of his substantive due process nghts under the
Fourteenth Amendment by the application of the laws of
Kentucky for establishing paternity and imposing and
enforcing child support obligations.

Next, the Court must admit that is is absolutely
flabbergasted by the suggestion that Plaintiff should be able

D-26

to force his child’s step-father to adopt Plaintiff s son.
Again, it is well accepted that the “freedom of personal
choice in matters of family life is a fundamental liberty
interest protected by the Fourteenth Amendment.”
Santosky v. Kramer, 455 u.S. 745 (1982), Zablocki v.
Redhail, 434 U.S. 374 (1978), Smith v. Organization of
Faster Families for Equality and Reform, 431 U.S. 816
(1977). As the decision to adopt or not to adopt a child is
no doubt an extremely personal decision, the Court doubts
the wisdom of any sort of legal system purporting to foist
the adoption of someone else’s child upon an individual.
Of course, that is not the matter before the Court today, and
the Court can safely confine its opinion to the fact that
Plaimtiff clearly does not have a constitutionally protected
right to force someone else to adopt his child. In any event,
whether or not Commonwealth law provides him that
option, it would not touch on his decision to become or not
to become a father in the first place. Accordingly, he can
state no claim on these grounds.

3. EQUAL PROTECTION
The Equal Protection Clause of the 14”
Amendment commands that no State shall “deny
to any person within its jurisdiction the equal
protection of the laws,” which is essentially a
direction that all persons similarly situated should
be treated alike.

D-27

City of Cleburne, Texas v. Cleburne Living Center, 473
U.S. 432, 439 (1995) (quoting Piyler v. Doe, 457 U.S. 202,
216 (1982)). Unless a suspect class (classification by race,
alienage, or national origin), quasi-suspect classification
(gender or legitimacy), or a fundamental right is at stake,
equa! protection claims are analyzed using a deferential
rational basis test.’ Heller v. Doe, 509 U.S. 312, 320
(1993). Generally, legislation is presumed to be valid and
sustained if the classification drawn by the statute is
rationally related to a legitimate state interest. City of
Cleburne, 473 U.S. at 440. Thus, it is taught that:

[w]hen social or economic legislation is at issue,
the Equal Protection Clause allows the States
wide latitude, and the Constitution presumes that
even improvident decisions will eventually be
rectified by the democratic processes.

Id. at 440.

” Where suspect classification occurs:
...Such discrimination is unlikely to be soon rectified by
legislative means, [and] these laws are subjected to strict
scrutiny and will be sustained only if they are suitably
tailored to serve a compelling state interest. Similar
oversight by the courts is due when state laws impinge on
personal rights protected by the Constitution.

City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 440

(1985) (internal citations omitted). As quasi-suspect classifications,

those based on gender or legitimacy fail unless they are substantially

related to a sufficiently important governmental interest. /d at 441.

D-28

Defendants argue that Plaintiff s equal protection claims
are subject only to an analysis under the rational basis test."
The Court agrees as it is hard-pressed to determine to
which class Plaintiff purports to belong and certainly
cannot identify a suspect class, quasi-suspect classification,

* Plaintiff has responded only that such an attack on the merits is
untimely since he argues that the legyslation of which he complains 1s
unconstitutional “as applied™ to specific factual situations (including
motivations of the partes, acuons of the partes in manipulating state
court procedures, circumstances surrounding |e conception and
pregnancy of the child, and whether best interests of children Irving in
specific types of famaly environments are sacrificed by constitutionally-
deficient adoption statutes)” and wil) require “extensive discovery” to
establish the factual situavons for purposes of summary judgment.
[Response at 27 |

On a motion to dismiss under Fed. R. Civ. P. 12(6)(6), this Court must
accept all factual allegations in Plaintiffs’ amended cotaplamt as true,
which is to say that further discovery is simply not necessary. As noted

above, it is clear from the complaint that Plaintiff alleges no state

actions which have impacted the fundamental nghts he alleges to have

been violated in this matter. Further, some of the rights that he alleges

to have been impacted by the state action simply do not have the

constitutional umport he assigns to them nor has he identified the type

of irrational lationship between the interests served by the challenged

legislation a4 the legislavon or unequal applcation of those laws that

would otherwise permut this matter to survive a movion to dismiss.

Finally, imsofar as he wishes to take discovery un order to demonstrate

“manipulations of state court proceedings,” he has not pled any

procedural inconsistencies of this nature in his complaint, even denying

that he would or could state a procedural due process claim im his

response. Accordingly, his motion shall be demed.

D-29

or, as stated earlier in this opinion, a fundamental right that
is at stake. Assuming that Plaintiff purports to be a
member of a class of “individuals obligated to pay child
support,” “men who have fathered children out of
wedlock,” “men who do not wish to be fathers but who
have, nonetheless, fathered children,” or “men who have
fathered children now living with their mothers in a home
with a step-father that has not adopted them,” the Court is
still unclear on what, if any, unequal treatment at the hands
of the law is alleged. In any event, there is no doubt for
this Court that the statutes of which Plaintiff complains are
rationally related to a legitimate state interest, providing for
the material needs of children.” Beyond recognizing this
rational relationship, the Court cannot and will not second
guess the wisdom of the Commonwealth's legislature’s
decision to enact statutes requiring individuals taking part
in sexual activity that results in the birth of a child to
shoulder the responsibility of providing for the needs of
that child in order to satisfy this state interest. His claim
for violation of his right to equal protection of the laws
under the Fourteenth Amendment shall be dismissed.

IV. CONCLUSION

* Further, Plaintiff s assertion that Defendants’ ability to engage im a
rational basis analysis of his equal protection claim proves that he has
state a claim upon which relief may be granted is ridiculous. Rather
than identify which class he purports to be a member of, Plauntiff has
ignored Defendant's invitation to explore his claim in cven the most
esoteric terms.

D-30

For all of the reasons stated above, it is clear to this Court
that Plaintiff's claims cannot survive a motion to dismiss
for failure to state a claim under Fed. R. Civ. P. 12(b)6),
and Defendant's motions to dismiss shall be granted.
Further, for the reasons stated in this opinion, it is clear that
Plaintiff s pending motions as discussed above should be
denied.

Accordingly, IT IS ORDERED:

(1) that Plaintiff's motion for leave to file a surreply
[Record no. 35] be, and the same hereby is DENIED,
(2) __ that Plaintiff's motion to reopen discovery and for
an indefinite extension of time in which to respond to
Defendants’ motions for summary judgment [Record No.
27] be, and the same hereby is, DENIED;

(3) that Plaintiff's motion for leave to amend his
complaint and to join an additional defendant, the
Kentucky Cabinet for Families and Children [Record no.
23}, be, and the same hereby is, DENIED,

(4) that Defendant's motions to dismiss or for summary
iudgment [Record Nos. 7 & 12] be, and the same hereby
are, GRANTED IN PART and DENIED AS MOOT IN
PART.

(5) that all Plaintiff's claims be, and the same hereby
are, DISMISSED WITH PREJUDICE.

This the 5” Day of December, 2003.
Signed by: Joseph M. Hood, United States District Judge

E-1

TEXT OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION

All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States, nor shall any
State deprive any person of life, liberty, or property,
without due process of law, nor deny to any person within
its jurisdiction the equal protection of the laws.

F-]

199.480 Parties defendant in an adoption proceeding —
Process — Guardian ad litem.

(1) The following persons shall be made parties defendant
im an action for leave to adopt a child:

(a) The child to be adopted,

(b) The biological living parents of a child under
eighteen (18), if the child is born in lawful wedlock. If the
child is born out of wedlock, its mother, and its father, if
one (1) of the following requirements is met.

1. He is known and voluntarily identified by
the mother by affidavit,

2. Prior to the entry of a final order in a
termination proceeding, he has acknowledged the child as
his own by affirmatively asserting paternity in the action or
to the custodial agency or the party bringing the action
within sixty (60) days after the birth of the child,

3. He has caused his name to be affixed to
the birth certificate of the child, '

4 He has commenced a judicial proceeding
claiming parental nght,

5. He has contributed financially to the
support of the child, either by paying the medical or
hospital bills associated with the birth of the child or
financially contributed to the child's support, or

6. He has married the mother of the child or
has lived openly or is living openly with the child or the
person designated on the birth certificate as the biological
mother of the chiid

F-2

A putative father shall not be made a party defendant if
rone of the requirements set forth above have been met,
and a biological parent shal! not be made a party defendant
if the parental rights of that parent have been terminated
under KRS Chapter 625, or under a comparable statute of

(c) The child’s guardian, if it has one.

(d) If the care, custody, and control of the child has
been transferred to the cabinet, or any other individual or
individuals, institution, or agency, then the cabinet, the
other individual or individuals, institution, or agency shall
be named a party defendant, unless the individual or
individuals, or the institution or agency 1s also the
petitioner

(2) Each party defendant shall be brought before the court
in the same manner as provided in other civil cases except
that if the child to be adopted is under fourteen (14) years
of age and the cabinet, individual, institution, or agency has
custody of the child, the service of process upon the child
shall be had by serving a copy of the summons in the action
upon the cabinet, individual, institution or agency, any
provision of CR 4.04(3) to the contrary notwithstanding.

(3) If the child's biological living parents, if the child is
born in lawful wedlock, or if the child is born out of
wedlock, its mother, and if paternity is established in legal
action or if an affidavit is filed stating that the affiant is

F-3

father of the child, its father, are parti¢s defendant, no
guardian ad litem need be appointed to represent the child
to be adopted.

G-1

405.020 Custody, surture, and education of minor child
— Physically and mentally disabled children — De facto
custodian.

(1) The father and mother shall have the joint custody,
nurture, and education of their children who are under the
age of eighteen (18). If either of the parents dies, the
survivor, if suited to the trust, shall have the custody,
nurture, and education of the children who are under the
age of eighteen (18). The father shall be primarily liable for
the nurture and education of his children who are under the
age of eighteen (18) and for any unmarried child over the
age of eighteen (18) when the child is a fulltime high
school student, but not beyond completion of the school
year during which the child reaches the age of nineteen (19)
years.

(2) The father and mother shall have the joint custody, care,
and support of their children who have reached the age of
eighteen (18) and who are wholly dependent because of
permanent physical or mental disability. If either of the
parents dies, the survivor, if suited to the trust, shall have
the custody, care, and support of such children.

(3) Notwithstanding the provisions of subsections (1) and
(2) of this section, a person claiming to be a de facto
custodian, as defined in KRS 403.270, may petition a court
for legal custody of a child. The court shall grant legal
custody to the person if the court determines that the person

G-2

meets the definition of de facto custodian and that the best
interests of the child will be served by awarding custody to
the de facto custodian.

(4) Notwithstanding the provisions of subsections (1) and
(2) of this section, if either yarent dies and at the time of

death a child is in the custody of a de facto custodian, as

defined in KRS 403.270, the court sha!l award custody to
the de facto custodian if the court determines that the best
interests of the child will be served by that award of

custody.

H-1

405.430 Genetic testing to establish paternity — Cabinet
may determine child support or child care obligation —
Adjustment of child support or child support obligation
— Order requiring parent to work or continue
educational or training activities — Disclosure of
financial records — Voluntary acknowledgment of
paternity as basis — Administrative subpoenas to
enforce child support obligation — Prohibition —
Employment assistance.

(1) When a parent presents himself to the cabinet for the
voluntary establishment of paternity and clear evidence of
parentage is not present, the cabinet shall pay when.
administratively ordered the cost of genetic testing to
establish paternity, subject to recoupment from the alleged
father when paternity is established.

(2) The cabinet shall obtain additional testing in any case if
an original test is contested, upon request and advance
payment by the contestant.

(3) In a contested paternity case, the child, the mother, and
the putative father shall submit to genetic testing upon a
request of any of the parties, unless the person or guardian
of the person who is requested to submit to genetic testing
shows good cause, taking into account the best interests of
the child, why the genetic tests cannot be performed. The
request shail be supported by a sworn statement of the
party, requesting that the test be performed, which shall

H-2

include the information required by 42 U.S.C. sec.
666(a)(5 (BX!) or (ii).

(4) When a parent who fails to support a child is not
obligated to provide child support by court order, the
cabinet may administratively establish a child support
obligation based upon a voluntary acknowledgment of
paternity as set forth in KRS Chapter 406, the parent's
minimum monthly child support obligation and
proportionate share of child care costs incurred due to
employment or job search of either parent, or incurred
while receiving elementary or secondary education, or
higher education or vocational training which will lead to
empioyment. The monthly child support obligation shall be
determined pursuant to the Kentucky child support
guidelines set forth in KRS 403.212. The actual cost of
child care shall be reasonable and shall be allocated
between the parents in the same proportion as each parent's
gross income, as determined under the guidelines, bears to
the total family gross income.

(5) The cabinet shall recognize a voluntary
acknowledgment of paternity as a basis for seeking a
support order, irrespective of the alleged father's
willingness to consent to a support order.

(6) When in the best interest of the child, the cabinet may
review and adjust a parent's child support obligation or
child care obligation as established by the cabinet, upon a

H-3

request of the cabinet when an assignment has been made,
or upon either parent's petition if the amount of the child
support awarded under the order differs from the amount
that would be awarded in accordance with KRS 403.212.
The cabinet shal! notify parents at least once every three (3)
years of the right to a review.

(7) in establishing or modifying a parent's monthly child
to identify orders eligible for review, conduct the review,
identify orders eligible for adjustment, and apply the
adjustment to eligible orders in accordance with KRS
403.212. The cabinet shall utilize information, including
financial records, about the parent and child which it has
good reason to believe is reliable and may require the
parents to provide income verification.

(8) In cases in which past-due support is owed for a child
receiving public assistance under Title IV-A of the Federal
Social Security Act, the cabinet shall issue an
administrative order, or seek a judicial order, requiring the
obligated parent to participate in work activities, or
educational or vocational training activities for at least
twenty (20) hours per week, unless the parent is
incapacitated as defined by 42 U.S.C. sec. 607.

(9) The cabinet may disclose financial records only for the
purpose of establishing, modifying, cr enforcing a child
obligation of an individual. A fi sal instituti

H-4

shall not be liable to any individual for disclosing any
financial record of the individual to the cabinet attempting
to establish, modify, or enforce a child support obligation.

(10) The cabinet may issue both intrastate and interstate
administrative subpoenas to any individual or entity for
financial or other information or documents which are
needed to establish, modify, or enforce a child support
obligation pursuant to Title IV-D of the Social Security
Act, 42 U.S.C. secs. 651 et seq. An administrative
subpoena lawfully issued in another state to an individual
or entity residing in this state shall be honored and enforced
in the Circuit Court of the county in which the individual or
entity resides.

(11) In any case where a person or entity fails to respond to
a subpoena within the specified time frame, the cabinet

shall impose a penalty.

(12) No person shall knowingly make, present, or cause to
be made or presented to an employee or officer of the
cabinet any false, fictitious, or fraudulent statement,
representation, or entry in any application, report,
document, or financial record used in ésiermining child
support or child care obligations.

(13) If a person knowingly or by reason of negligence
discloses a financial record of an individual, that individual
may pursue civil action for damages in a federal District

H-5

Court or appropriate state court. No liability shall arise with
respect to any disclosure which results from a good faith,
but erroneous, interpretation. In any civil action brought for
reason of negligence of disclosure of financial records,
upon finding of liability on the part of the defendant, the
defendant shall be liable to the plaintiff in an amount equal
to:

(a) The sum of the greater of one thousand dollars
($1,000) for each act of unauthorized disclosure of
financial records; or

(b) The sum of the actual dainages sustained by the
plaintiff resulting from the unauthorized disclosure, plus

(c) If willful disclosure or disclosure was a result of
gross negligence, punitive damages, plus the costs,
including attorney fees, of the action.

(14) The cabinet shail issue an administrative order or seek
a judicial order requiring a parent with a delinquent child
support obligation, as defined by administrative regulation
promulgated under KRS 15.055, to participate in the
program described in KRS 205.732 to help low-income,
noncustodial parents find and keep employment unless the
parent is incapacitated as defined by 42 U.S.C. sec. 607.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0092%3A1. Public record. Not legal advice.