Request By:
Mr. Wm. Murphy Howard
Harlan County Attorney
Courthouse Building, Room 14
Drawer 980
Harlan, Kentucky 40831
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A paternity action filed in Tennessee was transmitted to the district court in your county. The mother is a resident of Tennessee. The child was conceived and born in Illinois. The father is a citizen and resident of Harlan County, Kentucky.
Your question reads:
"Where should the paternity action be filed? Since there is no tort against the Commonwealth of Kentucky, should the paternity action be initiated in the State of Tennessee, the present residence of mother and child, or in Illinois where the child was conceived and born?"
The Uniform Act on Paternity is collected in KRS Chapter 406. When paternity may be properly determined in Kentucky, it may be determined upon the complaint of the mother, among others. Such action shall be brought by the county attorney, upon the request of the proper complainant, in the district court. See KRS 406.051 and 406.021. We assume that the mother is the complainant. See KRS 406.021. However, the critical question here is whether or not such action may be brought in Kentucky, under the factual circumstances.
KRS 406.180 reads:
"This chapter applies to all cases of birth out of wedlock: (1) where birth occurs within this state, (2) when birth occurs out of this state at the time the mother is a resident of this state after June 18, 1964, or (3) when birth occurs out of this state and at some time following the birth the mother becomes a resident of this state after June 18, 1964."
Subsection (1) of KRS 406.180 does not apply, since the child was born in Illinois. If the mother, at the time of the birth of the child, which birth occurred after June 18, 1964, was a resident of Kentucky, then she may have her complaint determined in a Kentucky district court, pursuant to KRS 406.180(2). If the mother was not a resident of Kentucky at the time of the birth of her child, which birth occurred after June 18, 1964, then subsection (2) is not applicable. Under subsection (3) of that statute if some time following the birth of the child, which birth occurred after June 18, 1964, the mother became a resident of Kentucky, that subsection would apply and she could file her complaint in the Kentucky district court. However, that subsection strongly implies that such Kentucky residence has continued to the time of filing the complaint in Kentucky.
Thus, since the baby was born in Illinois, and we assume the birth occurred after June 18, 1964, and if the mother was not at the time of such birth a resident of Kentucky and has since never been a resident of Kentucky, the mother cannot, under KRS 406.180, bring the paternity action in Kentucky. This is true, even though the alleged father lives in Harlan County, Kentucky. KRS 406.180 is controlling. See Department of Economic Security v. Shanklin, Ky., 514 S.W.2d 682 (1974).
In connection with the right of a nonresident mother to maintain bastardy proceedings, the annotation in 57 ALR2d 689, 690 reads in part:
"In Restatement, Conflict of Laws § 455, it is said that a statute of the state of domicil of the father of a minor bastard child will be there applied to compel him to contribute to the support of the child, irrespective of where the mother is domiciled, unless the statute provides otherwise. In the comment on this section it is stated that regardless of whether a bastardy statute is criminal or civil in nature, it represents an exercise of the state's police power either to punish misconduct or to impose the onus of supporting the child upon its natural parent, to prevent its becoming a dependent upon society, and that therefore the state of domicil of the father of a minor bastard child has legislative jurisdiction to provide for the imposition upon him of the duty to support the child or contribute to its support, whether the child was born within the state or whether the mother or the child, or neither, is domiciled there."
Notwithstanding the legislative jurisdiction of Kentucky as relates to the father domiciled here, Kentucky has imposed a basic condition of residency upon the mother in KRS 406.180.
In Yuin v. Hilton, 165 Ohio St. 164, 134 N.E.2d 719 (1956), the Ohio Supreme Court held that Ohio law permitted the mother of a bastard child to bring a bastardy action in Ohio, although the mother was a resident of and the child was born in another state, against the alleged father who was a resident of Ohio. The court simply noted that the Ohio statutes did not establish such nonresidency of the mother and the foreign birth of the child as a basis of non-jurisdiction in the Ohio Courts. In the similar case of Pelak v. Karpa, 146 Conn. 370, 151 A.2d 333 (1959), the Connecticut statutes contained no express requirement that the mother or child be a resident of Connecticut. Thus the mother, a resident of New Jersey, as was her child, could bring a bastardy proceeding against the alleged father, who was a resident of Connecticut. See also, in this same vein, the Rhode Island case of Surber v. Pearce, R.I., 195 A.2d 541 (1963).
However, here, as we noted above, KRS 406.180 imposes explicit jurisdictional conditions relating to the place of birth (state) and the residency of the mother.