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Michael H. v. Gerald D.

Citation. 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989).

Brief Fact Summary.

Defendant moved for summary judgement under California state law, denying Plaintiff of paternity and visitation rights. Plaintiff appealed.

Synopsis of Rule of Law.

A biological father attempting to establish paternity does not have a liberty interest that gives rise to a fundamental right.


Carole and Defendant were married. Carole and Plaintiff began to have an affair. Carole took DNA test indicating there was a 98.07% chance Plaintiff was the child’s father. Plaintiff filed an action in California Superior Court to establish his paternity and right to visitation after his attempts to visit the child were rebuffed.

Defendant successfully moved for summary judgement under California state law, which stated “the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage” and that another man could only challenge the presumption within two years of the child’s birth.


Whether the California law violates the Due Process Clause of the 14th Amendment by denying a biological father’s the opportunity to establish paternity after the child’s second birthday.


No. The California law does not violate the Due Process Clause of the 14th Amendment by denying a biological father’s the opportunity to establish paternity after the child’s second birthday.


Justice Brennan

Reasonable people can disagree on the history and traditions here, as evidenced by the plurality split. The better approach is to ask whether the specific parent-child relationship under consideration is close enough to the interests that we already have protected.

Justice White

The fact that Plaintiff-Petitioner is the child’s biological father is highly relevant to whether he has rights. I believe he has a liberty interest that cannot be denied without due process of the law.

The state’s interest in protecting a child from the social stigma fo illegitimacy lacks any real connection to the facts of a case where a father is seeking to establish, not repudiate, paternity. This harkens back to an ancient common law when there were no blood tests.


Justice O’Connor

I concur with the plurality in all but footnote 6. J. Scalia sketches a mode of historical analysis to be used when identifying liberty interests protected by the Due Process Clause of the 14th Amendment. It may, however, be inconsistent with some of our past decisions in the area.

Justice Stevens

I would not foreclose the possibility that a constitutionally protected relationship between a natural father and his child might exist. A father may be able to persuade a trial court judge under the “best interest” standard. I am satisfied, however, the California statute as applied gave the Plaintiff-Petitioner that very opportunity.


Turning to the common law history and traditions of our nation, we have long recognized and protected the family unit. We have found nothing in our sources or cases, however, addressing the power of the natural father to assert parental rights over a child born into a woman’s existing marriage with another man.

General traditions can provide imprecise guidance, permitting judges to dictate, rather than discern, the society’s views. A rule of law that binds neither by text nor by any particular, identifiable tradition is no rule of law at all.

As such, the Plaintiff-Petitioner must first establish that our society has traditionally accorded such a father parental rights, or at least has not traditionally denied them. And he has not. This is not the stuff of which fundamental rights qualifying as liberty interests are made. Due Process does not apply. Judgement affirmed.

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