Request By:
Ms. Jean P. Wilhite
Office of Simpson County Attorney
P.O. Box 524
208 S. Main Street
Franklin, Kentucky 42134
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
On behalf of the County Attorney, Mr. Sam McCracken, you request our opinion on a question relating to child support in a paternity situation and an interpretation of OAG 67-116, published, Banks-Baldwin.
Your specific question reads:
"If the petitioner-mother in the paternity action is receiving AFDC from the Commonwealth of Kentucky, and the action is brought by the Commonwealth on behalf of the mother against the alleged father in order to establish legal paternity for the present and future protection and benefit of the minor child, does the mother have the right to enter into such an agreement when actually the Commonwealth of Kentucky, Cabinet for Human Resources is the petitioner?"
We ruled in OAG 67-116, published, Banks-Baldwin, that a court may approve a settlement of a bastardy claim under KRS 406.141 within the court's discretion, even though the putative or reputed father may deny paternity and even though the case has not proceeded to a finding or judgment of paternity. In the factual situation underlying the 1967 opinion, the defendant in the action denied paternity and did not admit paternity in the settlement. In 10 Am.Jur.2d, Bastards, § 98, p. 917, it was stated that it is generally recognized that a settlement or release of a bastardy claim entered into by the mother and the putative father is a defense against later proceedings by the mother under a bastardy statute, in the absence of a statute to the contrary.
In your factual situation, the county attorney is the representative of the Cabinet for Human Resources in bringing the paternity action on behalf of the mother, the child, and the taxpayers, pursuant to KRS Chapter 406 and KRS 205.710 to 205.800, in the district court (KRS 406.051). The petitioner-mother is receiving money support by way of AFDC (Aid to Families with Dependent Children) . See 42 U.S.C. § 602 et seq. The mother has executed an assignment to CHR (for the benefit of the Federal Government and State of Kentucky to the extent of their percentage of joint contribution in the aid program) , of her right to child support owed for the child pursuant to 42 U.S.C. § 602 and KRS 205.720. In this situation the paternity action does not proceed to a finding or judgment of paternity. A complaint and answer are filed; and the defendant denies paternity.
Your question is whether the mother can legally enter into an agreement for child support with the alleged father.
The court, in
Smith v. Huecker, (U.S.C.A. -6, 1976) 531 F.2d 1355, observed that the paramount goal of AFDC is protection of dependent children. See
King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L.E.2d 1118 (1968). In that case the court wrote that Congress has determined that immorality and illegitimacy should be dealt with through rehabilitative measures rather than measures that punish dependent children, and the protection of such children is the paramount goal of AFDC. In addition, other parties in practical or ultimate interest in the subject type of paternity action are the federal and Kentucky taxpayers, since this AFDC is borne by the federal government and the state of Kentucky jointly in a ratio of 67% and 33% respectively. Thus the state program must conform to the federal law and regulations. See 42 U.S.C. § 602 et seq., and 45 CFR, Part 301 et seq. Also see
McCoog By and Through Ferguson v. Hegstrom, (U.S.C.A. - 9, 1982) 690 F.2d 1280. The aid program is designed to encourage the care of dependent children in their own homes or in the homes of relatives by providing funds to help maintain and strengthen family life and to help such parents or relatives to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection. The AFDC program is based on financial need.
In
Garcia v. Swoap, App., 134 Cal. Rptr. 137, 63 Cal.App.3d 903 (1977), the court wrote that the federal AFDC program was designed to provide welfare for families without a "breadwinner", "wage earner" or "father", a need unfulfilled by other welfare programs.
It is well recognized that once a valid assignment has been made under this federal-state legislation, the assignor cannot cancel or modify the completed assignment by unilateral action without the assent of the assignee, nor may the assignor defeat or impair the rights of the assignee in any other way. In Re Marriage of Shore, App., 139 Cal. Rptr. 349, 353, 71 Cal.App.3d 290 (1977). KRS 205.720 provides that the CHR shall be subrogated to the right of the child or the person having custody to collect and receive all child support payments and to initiate any support action existing under the laws of
Kentucky. The Supreme Court of Appeals of West Virginia, in State Ex Rel. State Dept. of Welfare v. Smith, W.Va., 275 S.E.2d 918 (1981) 920, held that the use of the word "subrogated" in a West Virginia statute means that the state may stand in the place and stead of the assignor and use equitable as well as legal means to enforce judgments. See also
Essex Cty. Welfare Div. v. Simon, N.J. Super. A.D., 429 A.2d 609 (1981), relating to the legal effect of an assignment made by the mother of an illegitimate child to the county division of welfare. The Superior Court of New Jersey held that the assignment by the recipient of such child assistance was a proper procedure for the recoupment of such grants (state and federal).
The Court of Appeals of Oregon, Gibson v. Johnson, Or.App., 582 P.2d 452 (1978), held that the statutory duty of the recipient of such aid to cooperate with the state in the enforcement of the assigned support rights against the obligor is conditioned upon the best interests of the child.
CONCLUSION
It is our opinion, under this factual situation, and pursuant to the above mentioned and analyzed federal and state law, that the mother may enter into an agreement with the alleged father providing for his support of the child under the following conditions: (1) The agreement must be approved by the Cabinet for Human Resources, through its representative, the county attorney. (2) The agreement must be one that is deemed to be in the best interest of the child. (3) The agreement must be one deemed to serve the best interests of the taxpayers, federal and Kentucky. (4) The agreement must be reasonable and conscionable. (5) The agreement must be approved by the district court of jurisdiction, if it is to be valid. The court may approve of such agreement within its reasonable discretion. See KRS 406.141.