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Michael H. v. Gerald D

Citation. 22 Ill.504 U.S. 905, 112 S. Ct. 1931, 118 L. Ed. 2d 538 (1992)
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Brief Fact Summary.

A California statute established that a child born to a married woman living with her husband at the time of birth is presumed to be the child of the marriage.

Synopsis of Rule of Law.

An unwed father’s interest in establishing his paternity rights to his natural child must be “fundamental” and “traditionally protected by . . . society.”


Under California law, a child born to a married woman living with her husband is presumed to be a child of the marriage. The presumption of legitimacy may be rebutted by showing: (1) that the child of a wife cohabitating with her husband is impotent or sterile or (2) that blood tests are used to prove the natural father within two years after the child is born. A father wishing to establish paternity rights to his child challenged the California law. The California Court of Appeals upheld the constitutionality of the statute. The California Supreme Court denied discretionary review.


Can a state statute determine whether an unwed father has a constitutional right to have a relationship with his biological child.


Justice Antonin Scalia (J. Scalia). Yes. A state statute may determine whether an unwed father has a constitutional right to have a relationship with his biological child. “It is a question of legislative policy and not constitutional law whether California will allow the presumed parenthood of a couple to retain a child conceived within and born into their marriage to be rebutted.” In order for the natural father to successfully establish paternity or have a liberty interest in establishing paternity, the interest must be “fundamental” and “an interest traditionally protected by our society” and that develops within a “unitary family.” The judgment of the California Court of Appeals is affirmed.


The dissenting opinions are as follows:
Justice William Brennan (J. Brennan). “We are not an assimilative, homogeneous society, but a facilitative pluralistic one, in which we must be willing to abide someone else’s unfamiliar or even repellant practice because the same tolerant impulse protects our own indiosyncracies . . . . ‘[L]iberty’ must include the freedom not to conform. The plurality today squashes this freedom by requiring specific approval from history before protecting anything in the name of liberty.”
Justice Byron White (J. White). “[W]hatever stigma remains in today’s society is far less compelling in the context of a child of a married mother, especially when there is a father asserting paternity and seeking a relationship with his child. It is hardly rare in this world of divorce and remarriage for a child to live with the ‘father’ to whom her mother is married, and still have a relationship with her biological father.”
Concurrence. The concurring opinions are as follows:
Justice Sandra Day O’Connor (J. O’Connor). “On occasion the Court has characterized relevant traditions protecting asserted rights at levels of generality that might not be ‘the most specific level.’” Historical traditions should not “foreclose the unanticipated . . . .”
(J. Stevens). The Supreme Court of the United States (Supreme Court) “seems to reject the possibility that a natural father might ever have a constitutionally protected interest in his relationship with a child whose mother was married to and cohabiting with another man” at the time of the child’s birth. The possibility should not be foreclosed – “the possibility that a constitutionally protected relationship between a natural father and his child might exist in a case like this.”


This case seems to hold the Supreme Court’s recognized historical traditions, of the unitary family, as a means for determining whether a father’s right to establish paternity to his natural child squarely fits into these traditions. If the father’s interest in establishing paternity is inconsistent with this historical understanding of family, then the father will be denied this right.

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