CHARLESTON – A Georgia woman is challenging a Kanawha Family Law judge’s order compelling her child to take a DNA test to prove a Tornado man is the biological father.
Kenneth D. Ballard is named as a respondent in writ of prohibition filed Aug. 31 in Kanawha Circuit Court by Lea Ann Carpenter. In her writ, Carpenter, 44, of Winder, Ga., maintains Ballard lacks both jurisdiction and grounds to consider George Elton Dolin’s petition for paternity.
According to the writ, Dolin, 58, filed a petition to disprove Carpenter’s husband, Robert Jr., is not the father of their child. The child — whose name, age and sex are not identified in the writ — Carpenter avers was born in the course of her 25-year marriage to Robert.
Ballard, Carpenter says, should’ve dismissed Dolin’s petition on the grounds he lacks standing to file it. Though state code gives a man in certain circumstances the ability to file a paternity action including one “who believes he is the father of a child born out of wedlock,” Carpenter maintains that section “does not include males asserting paternity against a married woman.”
Also, Carpenter says Ballard lacks jurisdiction to consider the case. Not only are she and her child residents of Georgia, but also service of process of Dolin’s petition was made on one of her family members in Alabama.
Despite that, Carpenter on an unspecified date made motions to dismiss Dolin’s petition for lack of jurisdiction, service of process and standing. Also, she made additional motions to have Robert named as a necessary party, and a guardian ad litem appointed.
According to the writ, Ballard on an unspecified day denied Carpenter’s motions and set Aug. 30 for a hearing on Dolin’s petition. Also, after putting him on notice of her intent to file it, Carpenter says Ballard denied a motion to stay the hearing pending the outcome of her writ.
In the writ, Carpenter asks that the circuit court prohibit enforcement of any order requiring her child to undergo a DNA test, and the case be dismissed. Alternatively, as she did previously with Ballard, Carpenter asks the court to name Robert as a party to Dolin’s petition, and appoint a guardian ad litem.
Carpenter is represented by Beckley attorney Winifred L. Bucy. The case is assigned to Judge Tod J. Kaufman.
Kanawha Circuit Court case number 12-MISC-458