Jensen v. Runft

The opinion of the court was delivered by

Abbott, J.:

This is a paternity action in which the trial court found it was not in the child’s best interests to order blood tests. The trial court then relied upon the presumption of paternity in determining the child’s biological father. The Court of Appeals reversed the trial court in an unpublished opinion filed March 13, 1992, and we accepted review.

It is easy to be critical of the three adults involved for putting their own desires, including the desire to punish one or more of the others, ahead of what is in the best interests of the minor child, Luke Christopher Runft. Nonetheless, in reading the facts, it is important to focus on the dispositive issue, which is what is in the best interests of Luke. Luke is now six years of age.

*77The plaintiff in this case is Luke’s mother, Anne Christine Jensen (Chris). Chris was married to Bruce Runft. They had two children, ages 1 and 4, when Chris began an affair with Dr. Robert D. Seaton (Bob). Chris is a nurse and worked with Bob. Bob was and is married and has two children by that marriage.

Chris became pregnant with Luke in late September or early October 1985. When she became pregnant, she was having sexual intercourse with Bruce approximately once a month. At the same time, she was having sexual intercourse with Bob two or three times a week. This course of conduct with Bob continued until several months after Luke’s birth.

Bruce did not believe Luke was his son. Nonetheless, in an effort to keep his family together, Bruce agreed to raise Luke as his own son and to place his name as the father on the birth certificate. Bruce was not aware the affair was continuing. The affair did not end until several months after Luke’s birth, when Bob made it clear to Chris he was remaining with his family.

In January or February of 1987, Bruce and Chris separated. A separation agreement was signed in which Bruce acknowledged Luke as his child and agreed to support him. Bruce did not raise an issue concerning Luke’s paternity in the divorce proceeding. Bruce was ordered to pay support and was given visitation rights. He testified it was his hope a reconciliation would occur and reunite the family unit. That did not occur.

Bruce has and continues to pay child support for Luke. He exercised regular visitation with the three children, and it appears from the record, he established a father-son relationship with Luke.

After Chris married Jerry Jensen, Bruce refused to continue a relationship with Luke. Bruce forced Chris to tell Luke that Bruce was not his father and that Luke would no longer be allowed to accompany the other two children when they visited Bruce. Chris was seeing Dr. John A. Sampson, a psychologist, concerning problems relating to the extramarital affair. Dr. Sampson advised and counseled Chris on how to tell Luke. The doctor since has counseled Luke. Luke was told his father lived in Salina.

Chris believed it would be in Luke’s best interests to have his paternity determined. She filed this paternity action, pursuant to K.S.A. 38-1110 et seq., naming Bruce and Bob as defendants. *78Chris alleged that Bob is the biological father of Luke. Bob requested a hearing pursuant to In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989).

In Ross, this court commented that “the Kansas Parentage Act . . . provide[s] that every child has an interest not only in obtaining support, but also in inheritance rights, family bonds, and accurate identification of his parentage.” 245 Kan. at 597. We held: “The Uniform Parentage Act clearly was designed to provide for the equal, beneficial treatment of children. In this regard, it requires courts to act in the best interests of the child when imposing legal obligations or conferring legal rights on the mother/child relationship and the father/child relationship.” 245 Kan. at 597.

In this case, after making extensive and detailed findings, the trial court held it was not in the “best interests of Luke and contrary to public policy to permit Chris and Bruce to attempt to rebut the presumption of paternity.” (Emphasis supplied.)

Chris appealed, contending the trial court erred in not allowing a psychologist to give his opinion it was in Luke’s best interests that blood tests be taken and the paternity action go forward. Chris also claimed the trial court erroneously found it was not in Luke’s best interests that the paternity action proceed and that blood tests be taken.

The Court of Appeals, in an unpublished opinion, focused on the exclusion of Dr. Sampson’s opinion that it would be in Luke’s best interests to know who his biological father is. The court reversed, stating:

“Last, the trial court gave great weight to the ‘ancient presumption of legitimacy of a child bom in wedlock.’ The Kansas Supreme Court, in Ross, requires that a full hearing be held and that ‘the district court must consider the best interests of the child, including physical, mental, and emotional needs.’ 245 Kan. at 602. (Emphasis added.) We agree with the trial court that, in some cases, public policy would permit the presumption of paternity to prevail. However, this is not such a case. The court’s obligation here is to focus on the needs and interests of Luke. All other considerations are subservient to that end.”

A majority of this court agrees with the result reached by the Court of Appeals. The trial court did not allow the expert to testify that it would be in Luke’s best interests to proceed with *79the paternity action and to ascertain the identity of his biological father. Immediately thereafter, however, the trial court did allow the expert to give testimony that clearly indicated the expert was of the opinion it would be in the best interests of any child to have his or her biological father determined. We are of the opinion the excluded testimony was admissible, but the exclusion is harmless error because the evidence basically was admitted in other testimony. See K.S.A. 60-456(d) and State v. Graham, 246 Kan. 78, 80-81, 785 P.2d 983 (1990).

In determining the best interests of Luke, it is important to look at it from the child’s point of view. Luke lives in a rural area. This case was filed and the testimony was taken in his home county. Initials were not used. The full names of all the principals were used. Thus, nearly every member of the community has knowledge of the case and the facts. All of the information is available to Luke, his friends, and the entire world. The facts of this case are, therefore, common knowledge in Luke’s community, leaving Luke to face his peers knowing they are aware of the following: (1) The man Luke bonded with as a father no longer will have anything to do with Luke because he does not believe he is Luke’s father; (2) Luke’s own mother says Bob is Luke’s biological father; (3) Bob concedes he could be Luke’s father; and (4) blood tests can show with virtual certainty which of the two men is Luke’s biological father.

Although many people would regard Bruce’s actions in forcing disclosure and severing his relationship with Luke as calloused, the record gives every indication that Bruce was a good father to the three children, remained in close contact, and exercised meaningful visitation with the three children until he terminated the relationship with Luke. He has maintained that relationship with the other two children, has and still does meet his support obligations, and pays the medical expenses of the three children. There is no reason to believe he would not resume that relationship if he is satisfied Luke is his biological son.

If blood tests prove Bob to be the father, he and his family may take a different view from that taken at trial. The Seaton family appears to be a forgiving family. If Luke is indeed Bob’s son and because the family has forgiven Bob for his past transgressions, then the family members should not reject an innocent *80child who made none of the decisions that led to his birth. It is in Luke’s best interests that he be entitled to that chance.

It would be hard to justify telling Luke that because of the acts of Chris, Bruce, and Bob, he will never know with certainty the identity of his biological father, leaving him to ponder whether his “real” father would have rejected him if the courts had ordered blood tests.

Basically, all of the evidence, including the guardian ad litem’s recommendation, indicates that it would be in Luke’s best interests to know the identity of his father. The district court erred in holding otherwise.

The district court is reversed and the Court of Appeals is affirmed. The case is remanded to the district court for further proceedings, including the ordering of blood tests.