With the passing of HB 1, Kentucky lawmakers are making a strong statement in the area of child protective services/child custody. While this is not necessarily a surprise after the landmark “equal parenting” law that also passed earlier in 2018, this particular new law makes some MAJOR changes to existing law that readers need to know about.
As a family law attorney in Kentucky, here’s what my major takeaways are from this new law. The vast majority of these changes are good. I’m not sure that I can agree with the termination of parental rights if a mother has a child born addicted. Removal from custody, if necessary, but not termination of parental rights.
There have been lawsuits filed claiming that the Kentucky Cabinet for Health and Human Services wrongfully withheld children from their parents in order to receive an excess of federal funds. Cameron Knight, a journalist for cincinnatti.com, published an article on the website on July 5, 2017. This article tells the story of a mother, who is a veteran, who had a false positive test for heroin at the time that her child was born. She proved that she was not on heroin before she even left the hospital, but she was still forced to endure two months of being watched by social services before they finally closed the investigation. Read the article here.
In addition, the Courier Journal published an article on February 23, 2017 entitled “Feds Rip Kentucky Child Protection System”.
Basically, it was time for the Kentucky government to stand up and do something about all of these complaints. Perhaps HB 1 is the answer. It provides for oversights and basically revamps all of the procedures that DCBS has to follow -and, it also opens up basic details of the proceedings to the public. As is mentioned in Cameron Knight’s article, the CPS system has been operating with “little to no accountability” for years. Transparency is the last hope for cleaning up any failing government agency.
Now, working in Dependency, Neglect, and Abuse Court as a court-appointed lawyer, I have had the chance to work with several wonderful DCBS workers, especially two particular women in Christian County that I have the utmost confidence in. However, I have worked with some who leave much to be desired when it comes to protecting children. These particular workers seem to have forgotten about protecting children and are more concerned with protecting themselves. It’s easy to make mistakes, and we make them. However, it’s the refusal to own up to mistakes that causes major issues in an agency.
Putative Father Registry
A putative father registry is something that I have often wondered why KY did not have (until now). 33 states have one, and now Kentucky makes 34.
A putative father is defined as :
A putative father, with some variations in specific language, generally means a man whose legal relationship to a child has not been established but who is alleged to be or claims that he may be the biological father of a child who is born to a woman to whom he is not married at the time of the child’s birth. (Wikipedia)
What a putative father registry does is allow unmarried males who believe that they may be the biological father of a child to register with the state for a certain time after the child’s birth. This is a safeguard for possible fathers, as it guarantees that they will receive notice before the child is adopted or before a custody hearing is held to determine the child’s best interests. It basically preserves a man’s claim to exercise his parental rights independent of the decisions of the mother. She may not want him to be on the birth certificate, or she may go off and have a child where the father cannot find her. By registering with the putative father registry, the father should be able to avoid having any claims to paternity ignored by the government.
Kentucky law regarding paternity is as follows:
Kentucky Legal Definition of ‘Father’ (KRS § 205.710):
A ‘parent’ is a biological or adoptive mother, a father of a child born in wedlock, or a father of a child born out of wedlock if paternity has been established in a judicial proceeding or in any manner consistent with the laws of this or any other State.
Paternity provisions in Kentucky (KRS §§ 213.046; 406.025):
When a birth occurs in a hospital to a woman who is unmarried, the person in charge of the hospital or that person’s designated representative shall immediately before or after the birth of a child, except when the mother or the alleged father is a minor:
• Provide written materials and information concerning genetic paternity testing
• Require that a voluntary acknowledgment of paternity, obtained through the hospital-based program, be signed by both parents and be authenticated by a notary public if the parents wish to acknowledge paternity.
If the mother or the alleged father is a minor, the paternity determination shall be conducted pursuant to Chapter 406. The voluntary acknowledgment-of-paternity forms designated by the Vital Statistics Branch shall be the only documents having the same weight and authority as a judgment of paternity. When a birth occurs outside an institution, the certificate shall be prepared and filed by one of the following in the indicated order of priority:
• The physician in attendance at or immediately after the birth
• Any other person in attendance at or immediately after the birth
• The father or mother
• The person in charge of the premises where the birth occurred or of the institution to which the child was admitted following the birth
Upon completion of a signed, notarized, voluntary acknowledgment-of-paternity affidavit by the mother and alleged father that has been submitted to the State Registrar of Vital Statistics, paternity shall be rebuttably presumed for the earlier of 60 days, or the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a child support order.
Source : Child Welfare Information Gateway
*I would recommend visiting the link above, as it gives a state by state breakdown on paternity laws and related information in a neat little booklet*
Basically, in Kentucky, without a putative registry, a woman could, theoretically, disappear, have your child, and then claim that she has no idea who the biological father was or is. This usually happens in the context of stepparent adoptions. In order to have a child adopted by a new spouse, it is necessary to get the consent of the biological father, unless his rights have been terminated. If there’s no way to connect the father to the child, or the mother’s whereabouts are unknown, then it would be entirely possible for a mother to claim that she did not know who the father was, and the child would then be adopted without the consent or knowledge of any unknown father.
In Kentucky, here’s how it goes. An unwed mother goes down to the Child Support Enforcement Office to sign up for child support. She puts the name of the child’s alleged father down, and the Commonwealth then proceeds to file a child support suit on her behalf with no DNA test required. If a father does not get served with the Child Support Petition, or if he does not understand it, then he doesn’t realize that he has to petition the Court for a court date in order to even request a DNA test. After 20 days, if he has not answered the petition and has not sought legal advice, he will be declared the biological father by DEFAULT JUDGMENT. This means that many, many men are determined to be the legal fathers with no chance to go back to take a DNA test to determine if they are, in fact, the biological fathers.
Neonatal Abstinence Syndrome at Birth = Terminated Parental Rights
I’ll leave this topic for another blog post. However, I am not so sure that it is a great idea to fast track terminating the parental rights of mothers who are addicted when they give birth to babies. Yes, the babies may need to be removed from their mother’s custody for a time, but losing custody while the mother has at least a chance to go to rehab is completely different than losing all parental rights FOREVER. That is a punishment for a parent instead of an action taken in the child’s best interest. At least give rehabilitation a chance before yanking kids away permanently from their bio family.
More about these changes to the law to follow. It’s Friday, and I’m ready to spend time with my own family instead of writing about family law.
Have a great weekend, all!!