dissenting.
I respectfully dissent.
With our holding in this case, it is now the law in Kentucky that a married woman who has given birth to a child conceived in an extramarital affair need only show a possibility of emotional harm to the child in order to legally estop her husband from denying paternity even though DNA evidence proves conclusively that he cannot be the child’s father. This places Kentucky at the extreme margin of the minority of states which have approved the doctrine of “paternity by estoppel.” We have established this rule in this case even though the potential harm — that the child will discover that she is illegitimate — has been rendered moot by the child having been told that S.R.D. is not her real father. See n. 1 supra.
Until now, Kentucky law has consistently held that a putative father who can show that he is not biologically related to a child has no obligation for its support. In the last seventeen years, in three published cases, we have granted CR 60.02 relief from child support obligations when putative fathers were able to show conclusive scientific proof that they were not biologically related to the child. See Cain v. Cain, 777 S.W.2d 238 (Ky.App.1989); Spears v. Spears, 784 S.W.2d 605 (Ky.App.1990); and Crowder v. Commonwealth ex rel. Gregory, 745 S.W.2d 149 (Ky.App.1988). No Kentucky case holds otherwise. The attitude of our courts on this issue was expressed in Crowder as follows: “Justice is the court’s constant destination, relentlessly pursued. It is not arrived at where a court in a paternity action adjudicates a man to be the father of a child while knowing full well that the biological relationship has been clearly disestablished.” Crowder at 151.
In order to maintain the integrity of the family unit, spare children the legal and social stigma of illegitimacy, and cast the financial burden for child support on individuals rather than society, the common law has for many centuries recognized a presumption that children born during a marriage are children of the marriage.28 In Kentucky this presumption is codified at KRS29 406.011. Although the presumption is “one of the strongest known to law,” it may be overcome but “only by evidence so clear, distinct and convincing as to remove the question from the realm of reasonable doubt.” Bartlett v. Commonwealth ex rel. Calloway, 705 S.W.2d 470, 472 (Ky.1986), citing Simmons v. Simmons, 479 S.W.2d 585, 587 (Ky.1972). In Bartlett, the presumption was overcome by HLA30 testing, which established with a probability of 99.93 percent that a man *512other than the husband was the child’s father. Id. at 472; see also KRS 406.111.
In Bartlett, the child was born during wedlock; but the husband and wife had been divorced for several years. The wife filed a paternity action against the biological father, who raised the KRS 406.011 presumption as a defense. The biological father argued that the husband had never denied paternity of the child. Id. at 473. The court observed that “[f]or centuries, because it was so difficult to determine paternity, the court has always opted for the husband as the father of the child where that possibility existed.” Id. at 472. In holding that the biological father was obligated to support the child instead of the husband, the court continued:
Truth and justice are irrevocably bound. They are Siamese twins sharing a single heart beat. Neither can survive very long without the other. When the advances of science serve to assist in the .discovery of the truth, the law must accommodate them. The law cannot pick and choose when truth will prevail.
Id. at 473.
Many states which have adopted the doctrine of paternity by estoppel have applied the doctrine in lieu of the paternity presumption. While traditional estoppel doctrine requires three elements: (1) conduct or words amounting to representation; (2) reasonable reliance; and (3) resulting prejudice, courts have differed on what type of resulting prejudice is necessary in order to estop a party from disestablishing paternity.31 As applied in Kentucky in other areas of law, the doctrine of equitable estoppel has been used.against an opposing party and has included an element of detrimental reliance by the innocent party. See majority opinion, supra p. 506, citing J. Branham Erecting & Steel Service Company Inc. v. Kentucky Unemployment Insurance Commission, 880 S.W.2d 896, 898 (Ky.App.1994). In addition to the fact that a child is not a party to a divorce action between its parents,32 we also face the difficulty that courts of other states have faced in deciding what kind of prejudice must be shown in order to estop S.R.D. from disestablishing his paternity.
In this case, the family court relied on the report of the parenting coordinator to the effect that if the court should “relieve [S.R.D.] of his responsibility as [H.D.’s] father, then there needs to be some plan set up for both [H.D.] and the parties’ other two children, with the assistance of an approved mental health professional, as all three children will have difficult emotional issues to deal with when informed that the Petitioner is not [H.D.’s] father.” The family court referred several times to the potentially serious detriment to the child if the status quo was interrupted; but no proof was placed in the record regarding the nature or extent of any emotional or psychological damage to the child, nor did the court cite any learned treatises or studies relating to such damage. The nature and extent of the damage was assumed and treated as a matter to be judicially noticed without further discussion. Having made this assumption, it was then easy for the family court to conclude that “[i]n light of the facts of this particular matter, there is no doubt that the best interest of the child is for the father-daughter relationship to continue in the same manner as it has to this point in time.” While it is beyond doubt that it is shocking and traumatic for a child to learn that the person she had known as her *513father is not biologically related to her, it is also inevitable that she will find out the truth, just as ELD. already has in this case. There are also psychological costs connected with lying to a child, and there are sound reasons why our courts should not support or condone deception. When the family court’s decision was rendered, H.D. had not been told that S.R.D. was not her biological father. The family court, in essence, penalized S.R.D. for deceiving H.D. by requiring him to continue to pay child support and then ordered him to continue to deceive her in order to maintain the status quo. Legal reasoning aside, such a ruling strains common sense. How a family decides to deal internally with the mess created when one of the parents has an affair which produces a child, it seems to me, is very much their business and very little of this Court’s. This Court’s business in this case is primarily to determine whether, and if so upon what legal basis, we will order S.R.D. to continue to pay child support. In the final analysis that is all we are able to do. We may grant S.R..D. rights relating to H.D., but we cannot reasonably require him to avail himself of those rights if he turns against her. An order of any court directing a man to continue to “be a father” to a child, once he has learned that the child resulted from an act of infidelity by his wife, is impractical, unenforceable, and unjust.
In this connection, the Alaska Supreme Court wondered in B.E.B. v. R.L.B., 979 P.2d 514 (Alaska 1999), whether compelling the husband to continue to pay support might result in more harm than good. In that case, after thoroughly examining the “prejudice” element of paternity by estoppel in those states which follow the doctrine, the court overruled an earlier case33 which had approved “emotional harm” as sufficient to establish the element of prejudice and ruled that thereafter it would require a finding of “financial harm.” Id. at 520. To arrive at this result, the Alaska Supreme Court rejected the reasoning of Clevenger v. Clevenger, 189 Cal.App.2d 658, 11 Cal.Rptr. 707 (1961). That case approved emotional harm, without more, as sufficient to establish the prejudice element of estoppel. Clevenger’s reasoning is followed by a minority of the states which have approved the doctrine of paternity by estoppel. The Alaska Supreme Court chose instead to follow the reasoning of Knill v. Knill, 306 Md. 527, 510 A.2d 546 (1986), and Miller v. Miller, 97 N.J. 154, 478 A.2d 351 (1984). In those cases, the courts of Maryland and New Jersey, respectively, rejected the Cle-venger court’s emotional harm standard in favor of a financial harm standard of prejudice. In discussing why emotional harm is not sufficient to invoke the doctrine of paternity by estoppel, the Miller court said:
[T]o hold otherwise would create enormous policy difficulties. A stepparent who tried to create a warm family atmosphere with his or her stepchildren would be penalized by being forced to pay support for them in the event of a divorce. At the same time, a stepparent who refused to have anything to do with his or her stepchildren beyond supporting them would be rewarded by not having to pay support in the event of a divorce.
Miller v. Miller, 97 N.J. at 168, 478 A.2d at 358.
The Alaska Supreme Court concluded that the emotional harm rule of Clevenger:
centering as it does on a child’s emotional well-being after the break-up of a marriage, tacitly assumes that requiring a non-biological parent to pay post-di*514vorce support will encourage a lasting emotional bond. This assumption is highly questionable.
It is far from obvious that precluding a non-biological father from challenging paternity can effectively protect his child’s emotional well-being. An order requiring the father to pay support or barring him from challenging paternity will hardly prevent him from publicly claiming that he is not actually the child’s father. Of course, it is arguable that if the father knows that he will not be able to shirk his support obligation by challenging paternity, he might be deterred from attempting the challenge. But any such deterrence would be more than offset by the risk that a court order requiring the non-biological father to pay support might itself destroy an otherwise healthy paternal bond by driving a destructive wedge of bitterness and resentment between the father and his child. In short, the Clevenger rule is not grounded in reality. To encourage ongoing bonds between a non-biological father and son is certainly desirable; but, as a practical matter, Clevenger’s emotional harm standard is not likely to accomplish this commendable goal.
B.E.B. v. R.L.B., 979 P.2d at 519 (emphasis added).
In our case, to make a new rule changing Kentucky law, the majority relies on M.H.B. v. H.T.B., 100 N.J. 567, 498 A.2d 775 (1985), in which an equally divided New Jersey Supreme Court affirmed a trial court’s decision to apply the doctrine of paternity by estoppel. The decision was strongly criticized in the dissent for ignoring the requirement of Miller v. Miller “that when the natural parent can be located and is financially able, he or she remains principally responsible to pay permanent child support.” Id., 100 N.J. at 583-584, 498 A.2d at 783-784 (Pollock, J., concurring in part and dissenting in part), citing Miller, 97 N.J. at 169, 478 A.2d at 351. In J.W.P. v. W.W, 255 N.J.Super. 185, 604 A.2d.695 (1990), a biological father asserted the marital presumption and the doctrine of equitable estoppel in an attempt to avoid his obligation to support a child he had fathered in an extramarital affair. The husband had held himself out to be the child’s father even though he knew he was not. The court declined to extend the holding of M.H.B. v. H.T.B, and, referring to the paternity by estoppel doctrine adopted in Miller said that:
[t]he doctrine was not intended to compromise the natural parent’s obligation. Indeed, the Supreme Court emphasized that the natural parent remained the primary recourse for child support. Rather, equitable estoppel was used to provide a safety net for the child whose stepfather has affirmatively interfered with his right to be supported by his natural father.
Id. at 255 N.J.Super. at 191, 604 A.2d at 698 (Italics in original), citing Miller v. Miller, 97 N.J. at 169-70, 478 A.2d at 351. New Jersey courts hold that paternity by estoppel should be cautiously applied and that the natural parent is primarily obligated for support if he or she can be found and is financially able to support the child. By our holding, we extend New Jersey law further than New Jersey is willing to extend its own law.
In this case, neither the report of the parenting coordinator nor the judgment of the family court makes any mention whatsoever of the natural father of H.D. Who he is, where he is, what he does for a living, whether or not he is willing or able to pay support, whether or not he wishes to be involved in H.D.’s life, or even whether or not he is alive, we cannot tell. Even though it is perfectly plain that along with T.L.B., he is the person most directly responsible for H.D.’s predicament, he ap*515pears in this case only as “The Little Man Who Wasn’t There.”34
The two factors that apparently complicate this case are S.R.D.’s request to be relieved of the obligation for H.D.’s support while continuing to have parental rights and his delay in requesting a DNA test. There is no proof that S.R.D. had any reason to suspect that H.D. was illegitimate until she was already a toddler, two years old.35 One would expect that by that time a strong bond of affection would have already formed between S.R.D. and H.D., making S.R.D.’s dread of learning the truth understandable. Around that time, the couple began having serious marital difficulty; and T.L.B. began to taunt S.R.D. with “intimations” that he might not be the child’s father. Until now, such “intimations” hurled in the heat of marital strife have rarely resulted in DNA testing; but from henceforth, prudent family lawyers will advise husbands to obtain DNA tests as soon as their children are born and have nothing to do with the child if the results are unfavorable. This state of affairs hardly serves to maintain the integrity of family life.36
I can agree with the majority that parental rights and the obligation of support go hand-in-hand. I can admit that a sound argument can be made that S.R.D. did not file his motion for CR 60.02 relief within a “reasonable time” as we have decided that issue in other cases. I cannot agree that S.R.D. deserves to be penalized for trying to maintain the harmony of his family and for supporting H.D. as he has done until now. If the family court was unwilling to grant S.R.D.’s unusual request, it would seem that an analysis of the child’s best interest would have led the court to at least consider the possibility of terminating the support obligation while granting S.R.D. liberal visitation rights, which is within the court’s authority. See Simpson v. Simpson, 586 S.W.2d 83 (Ky.1979).
The prejudice element of the doctrine of paternity by estoppel, as it has been applied in all other states where the doctrine has been adopted, is completely missing in this case. No emotional harm can be shown because H.D. already knows that S.R.D. is not her natural father. No financial harm can be shown because there is no proof that any effort has been made to bring the natural father before the court and determine his ability or willingness to pay support. Even if it was shown that Kentucky law would be improved by the adoption of paternity by estoppel, which I submit is a dubious premise,37 this is not the case by which to do it. I respectfully dissent.
. See Kristen Santillo, Disestablishment of Paternity and the Future of Child Support Obligations, 37 Fam.L.Q. 503, 505 (2003).
. Kentucky Revised Statutes.
. Human Leukocyte Antigen, a type of blood test.
. Santillo, supra n. 28 at 506.
. Commonwealth of Kentucky ex rel. Hansard v. Schackleford, 908 S.W.2d 671, 672 (1995).
. Wright v. Black, 856 P.2d 477 (Alaska 1993).
. Last night I saw upon the stair A little man who wasn’t there He wasn’t there again today Oh, how I wish he’d go away ... (etc.) Hughes Meams (1875-1965)
. The family court, and the majority, charge S.R.D. with having held himself out as H.D.'s father for over nine years. However, H.D. was born in 1995; and the decree of dissolution was entered in 1997. The DNA test results became available in late 2003. The test was requested less than seven years after S.R.D. first had reason to suspect he might not be H.D.’s father. The Motion to Set Aside Child Support was filed six months after S.R.D. received the results, in the midst of ongoing custody, visitation, and support litigation.
. See Santillo, supra n. 28 at 508.
. Another question that bears asking is whether this issue would be better addressed to the legislature than the courts; see, e. g., the Uniform Parentage Act, Art. 6, Part 1, § 608 (2002 Rev.), and Ga.Code Ann. § 19-7-54 (2002).