Request By:
Mr. John W. Combs II
Attorney at Law
612 1/2 South Main Street
P.O. Box 1007
Hopkinsville, Kentucky 42240
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In OAG 76-47, published, Banks Baldwin, we were of the opinion that KRS 406.051 permitted the county judge to adjudicate the issue of visitation rights of the putative father in paternity actions.
The General Assembly in 1974 proposed the repeal of sections 109 to 139, 141 and 143 of the Kentucky Constitution, and the substitution of new sections 109-124, relating to the judicial department. The amendment was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976. Section 140 of the Constitution established the "county court", to consist of a judge, who was really the county judge. The county judge's jurisdiction as the county court and related matters were contained in KRS 25.110 through 25.330. However, those sections have been repealed, in view of the fact that the county judge has been stripped of his judicial function. The Constitution, by way of § 124, recognizes that the county judge (see § 99, Constitution) has only nonjudicial functions.
Under the present Constitution, as amended, the judicial officers in the counties consist of circuit judges (§ 112) and the district judges (§ 113).
By KRS 406.021, the determination of paternity is made a function of the district court. The basic purpose of the Uniform Paternity Act was designed to give the mother a remedy to compel the putative father to contribute to the support of his illegitimate child.
Sweat v. Turner, Ky., 547 S.W.2d 435 (1977).
Later, in Locke v. Zollicoffer, Ky., 608 S.W.2d 54 (1980), the Supreme Court said that KRS Chapter 406 is primarily concerned with the establishment of a parent-child relationship. As an aside, the court in that case observed that the county court had exclusive jurisdiction of paternity actions, when, as a matter of fact, under the above mentioned constitutional amendment and the implementing amendment of KRS 406.021 of the Extraordinary Session of 1976 (Ch. 14, § 410), the "district court" was substituted for the "county court."
KRS 406.011 provides that the father of a child born out of wedlock is liable to the same extent as the father of a child born in wedlock for the reasonable expense of the mother's pregnancy and confinement and for the education, necessary support and funeral expenses of the child.
Mayfield v. Commonwealth Ex Rel Phelps, Ky., 546 S.W.2d 433 (1977) 434.
KRS 406.051, a remedial statute, reads:
"The district court has jurisdiction of an action brought under this chapter and all remedies for the enforcement of judgments for expenses of pregnancy and confinement for a wife or for education, necessary support or funeral expenses for children born out of wedlock. An appeal may be had to the circuit court if prosecuted within sixty days from the date of judgment. The court has continuing jurisdiction to modify or revoke a judgment for future education. All remedies under the uniform reciprocal enforcement of support act are available for enforcement of duties of support under this chapter."
The Supreme Court, in Locke v. zollicoffer, cited above, suggests that Chapter 406 (paternity) and Chapter 407 (uniform support act) are not incompatible. The court said that Chapter 406 provides a means for identifying the biological parents, while Chapter 407 provides the locomotion operandi for enforcing an award of child support. This is another way of saying that the district court, where circumstances warrant, may utilize the remedial support features of KRS Chapter 407, pursuant to KRS 406.051.
Thus the district court has jurisdiction in connection with determining paternity, and, once paternity is determined, jurisdiction in entering and enforcing a judgment for the expenses and child support mentioned in KRS 406.051. In addition, KRS 406.051 explicitly declares that "All remedies under the Uniform Reciprocal Enforcement of Support Act are available for enforcement of duties of support under this chapter."
There is a need for an illegitimate child to visit with his father, as well as there is need for such father to visit his child. This reciprocal visitation need is an inherent part of the paternity and support action in the district court, especially in terms of the child's welfare. See
State of New Jersey v. Morales, 35 Ohio App.2d 56, 299 N.E.2d 920, 922;
Daly v. Daly, 39 N.J.Super. 117, 120 A.2d 510 (1956).
CONCLUSION
It is our opinion that the district court has jurisdiction to deal with the issue of the putative father's visitation rights and the child's correlative right to see the child's father. If the court is to administer justice fully in such paternity cases, the court's authority to deal with the visitation rights must be viewed as an inevitable part of the judicial function in such cases.
Evans v. Humphrey, 281 Ky. 254, 135 S.W.2d 915 (1940) 918. This is true in view of the remedial range of KRS Chapter 406, which includes identifying the biological parents and providing for the support of the child. See KRS 406.051.
In divorce cases, the matters of child maintenance, child support and child visitation are addressed to the sound discretion of the circuit court.
Leveck v. Leveck, Ky.App., 614 S.W.2d 710 (1981). A circuit court is a court of general jurisdiction. KRS 23A.010(1). See KRS 403.010, vesting in circuit courts only the authority to grant divorce. See KRS Chapter 403, granting circuit courts the authority to deal with maintenance, child support, and visitation rights, as a part of the divorce function. Thus visitation is considered an inevitable part of the problems of custody and support. This analogy logically applies to the district court's authority to deal with visitation under the total relief obtainable under KRS Chapter 406. It is written in 48A C.J.S., Judges, § 59, page 642 that "Generally speaking, it is the function of a judge to see that justice is accomplished, and it is within the powers and duties of a judge to take proper action in order to enforce the law and to promote justice." A judge has the authority to deal with a collateral matter which is necessary in dealing with the principal matter within his jurisdiction. 46 Am.Jur.2d, Judges, § 21, page 109.
"It has been said that a parent to whom custody is not awarded has a right to see his child at convenient times so as to give the child the full benefit of parental protection and care, and to give both parents the comfort of the child's society, although this parental right is not absolute." See Annotation, 88 ALR2d 148. See also the Annotation in 95 ALR2d 118, relating to violation of custody or visitation provision of agreement or decree as affecting child support payment provision, and vice versa.
OAG 76-47 is modified accordingly.