Request By:
Hon. George L. Drury II
District Judge
P.O. Box 51
Morganfield, Kentucky 42437
Opinion
Opinion By: Steven L. Beshear, Attorney General; Charles W. Runyan, Assistant Deputy Attorney General
In your recent letter you request our opinion concerning an application for permission to marry. Your letter reads:
"Application has been made to this office under KRS 402.020(5) by a seventeen year old unmarried mother for permission to marry the eighteen year old father of her child. The child was born July 17, 1981 and paternity has been established in this Court. The mother's parents refuse consent.
While the statute specifically says the mother has to be pregnant when the application is made I am wondering if it could be construed to permit the Court in this instance granting permission to marry.
I am aware of OAG 72-553 which stated the Judge could not give permission in such cases."
KRS 402.020(4) reads:
Marriage is prohibited and void: (4) When at the time of marriage, the person is under eighteen (18) years of age, if the marriage is without the consent of the father, mother, guardian, or other person lawfully having charge of his or her person, provided, however, that in case of pregnancy the male and female, or either of them, under the ages herein specified may apply to a district court judge for permission to marry, which application may be granted, in the discretion of the judge. There shall be a fee of five dollars ($5.00) for hearing each such application.
We assume from your letter that the girl made application for permission to marry in your court quite some time after the actual birth of the child.
We are highly aware, as you undoubtedly are as the court, of the social and legal desirability of the proposed marriage. However, it is our considered opinion that the literal language of KRS 402.020(4), as relates to the language, " in case of pregnancy ", prevents you, unfortunately, from assuming jurisdiction and granting the relief asked for. [Emphasis added]. Thus we feel the courts would consider it a duty to observe the literal words and meaning of that statute.
Department of Revenue v. Greyhound Corp., Ky., 321 S.W.2d 60 (1959).
The practical application of the literal construction of KRS 402.020(4), as to permitting a nonage pregnant girl to marry, would mean that upon the birth of the child, such child would have a father whose parenthood, along with the parenthood of the mother, would be documented on the child's birth certificate. Note that KRS 213.050(1) requires that the birth certificate contain the name and social security number of the mother and father, and the name of the child. That subsection also provides that if the mother of a child informs the physician, midwife, or a person prescribed by subsection (2) of this section, that the child was born out of wedlock, the name of the father shall not be inserted in the birth certificate and the certificate of birth of said child shall be in the surname of the mother.
Since the child in question was born July 17, 1981, you indicate the paternity issue was resolved in your court pursuant to KRS 406.021. Under KRS 213.050(1), the Cabinet for Human Resources is required to insert the full name and social security number of the father and the mother, and change the name of the child to the surname of the father where paternity is established in a legal action, as was the case here.
CONCLUSION
Notwithstanding the fact that the paternity question and the father's responsibilities have been resolved and established in your court, it is our opinion that under KRS 402.020(4), you do not have the authority to permit the couple to marry. The girl is simply not pregnant. She has already had her baby.
Of course, when the girl attains the age of eighteen (18), the disability will be removed; and they can apply to the county clerk for a marriage license, provided he agrees to it.
We hope you find this analysis helpful.