Request By:
Morgan T. Elkins
Commissioner
Kentucky State Police
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Martin Glazer, Assistant Attorney General
You seek an opinion concerning the meaning of the words, "any other person related by consanguinity or affinity within the second degree" in Senate Bill 17 enacted in the 1984 General Assembly and codified as KRS 403.715 to 403.785, dealing with domestic violence and abuse.
KRS 403.720(2) defines "family member" as "a spouse, parent, child, stepchild, or any other person related by consanguinity or affinity within the second degree. " (Emphasis supplied.)
In a 1925 case styled Sizemore v. Commonwealth, 216 Ky. 637, 276 S.W. 524, the Kentucky Court of Appeals stated:
By Bouvier's Law Dictionary, Vol. 1, p. 97 consanguinity is thus defined, "Relationship by 'blood' and affinity as 'the connection existing in consequence of marriage between each of the married persons and the kindred of the other.'" 276 S.W. at 525.
The degrees of relationship depend upon whether one is using canon, civil (Roman), or common law. Where the parties are related by lineal (direct line descent) consanguinity, the type of law used reaches the same conclusion.
In computing the degree of lineal consanguinity existing between two persons, every generation in the direct course of relationship between the two parties makes a degree; and the rule is the same by the canon, civil, and common law.
The mode of computing degrees of collateral consanguinity at the common and by the canon law is to discover the common ancestor, to begin with him to reckon downwards, and the degree the two persons, or the more remote of them, is distant from the ancestor, is the degree of kindred subsisting between them. For instance, two brothers are related to each other in the first degree, because from the father to each of them is one degree. An uncle and a nephew are related to each other in the second degree, because the nephew is two degrees distant from the common ancestor; and the rule of computation is extended to the remotest degrees of collateral relationship.
The method of computing by the civil law is to begin at either of the persons in question, and count up to the common ancestor, and then downwards to the other person, calling it a degree for each person, both ascending and descending, and the degrees they stand from each other is the degree in which they stand related. Thus, from a nephew to his father is one degree; to the grandfather, two degrees; and then to the uncle three, which points out the relationship. Bouvier's Law Dictionary 1934, page 211.
Those related by affinity would use the same method in determining the degree. Bouvier, Id. p. 55. A man's wife's sister is related to the man one degree by affinity. A man's wife's sister's child is two degrees related by affinity.
A Court will need to interpret this statute in a particular fact situation where the relationship is not clearly stated as it is related in the statute of "spouse, parent, child, or stepchild. "
Since Kentucky has adopted the common law in force prior to the fourth year of the reign of James I (March 24, 1607), Ray v. Sweeney, 140 Ky. 684, 131 S.W. 1024 (1910) as amended by statute and which was in force in Virginia prior to June 1, 1792 (Kentucky Constitution, Section 233), a Court would likely use the common law method of determining the degrees of collateral relationship.