Family Law Keyed to Weisbergback
Brief Fact Summary. Carole had an adulterous affair with Michael while married to Gerald. A child was born while Carole and Gerald were together, but was likely Michael’s child. Michael and the child by guardian ad litem brought suit to establish paternity and a right to visitation.
Synopsis of Rule of Law. An adulterous, natural father does not have a constitutional right to paternity over the marital father.
Facts. In 1976 Carole D. and Gerald D. were married and established a home in California. In 1978, Carole became involved in an adulterous affair with Michael H. She conceived a child, Victoria, in 1980, with Gerald listed as father on the birth certificate. Gerald has always held the child out to be his daughter, but soon after delivery Carole informed Michael she believed he might be the father. In 1981 Gerald moved to New York and Carole, Michael, and Victoria had blood tests revealing a 98.07% probability that Michael was the father. Carole visited with Michael for several months, were he held Victoria out as his daughter. Carole left Michael and took up residence in California with another man. In the summer of 1982 Carole and Victoria visited Gerald in New York, and the three vacationed in Europe. In the fall she returned to California. In November of 1982 Michael filed a filiation action in California to establish his paternity and right to visitation. In 1983 the co
urt appointed an attorney and a guardian ad litem to represent Victoria’s interests. Victoria filed a cross-complaint asserting that if she had more than one psychological or de facto father, she was entitled to maintain her filial relationship, with all of the attendant rights, duties, and obligations, with both. Carole filed for summary judgment while she was again living with Gerald in New York. In August of 1983 she returned to California and again became involved with Michael, instructing her attorneys to remove the summary judgment motion. For the next eight months Michael held Victoria out as his daughter. In April 1984, Carole and Michael signed a stipulation that Michael was Victoria’s father. The next month Carole left Michael, instructing her attorneys to not file the stipulation. Carole reconciled with Gerald and they lived together with two more children being born.
In May 1984 Michael and Victoria, through guardian ad litem, sought visitation rights for Michael pendente lite. A court appointed psychologist recommended that Carole retain sole custody, but Michael be allowed continued contact with Victoria pursuant to a restricted visitation schedule. The court concurred. In October of 1984 Gerald moved for summary judgment on the ground that under California law there were no triable issues of fact as to Victoria’s paternity. The law provides that “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.” The presumption may only be rebutted by blood tests, and a motion for such tests must be made within two years of the birth by the husband, or by the wife if the natural father has filed an affidavit acknowledging paternity.
In 1985 the Superior Court granted the motion for summary judgment, finding that Carole and Gerald were cohabiting at the time of conception and birth and that Gerald was neither sterile nor impotent.
Issue. Does the presumption established by the law infringe upon the due process rights of a man who wishes to establish his paternity of a child born to the wife of another man or infringe upon the constitutional right of the child to maintain a relationship with her natural father?
Held. [ Please provide a description of the decision(s) of this case ]
Michael contends as a matter of substantive due process that because he has established a parental relationship with Victoria, protection of Gerald and Carole’s marital union is an insufficient state interest to support termination of the relationship. However, Michael’s interest must be a fundamental liberty to be constitutionally protected.
Historically, the marital family has been protected rather than the potential father outside of the marriage. The presumption of legitimacy was fundamental at common law, and could be rebutted only by a husband who was incapable of procreation or had no access to his wife during the relative period. The policy rationales were the aversion to declaring children illegitimate and the peace and tranquility of the States and families. No modern or historical precedent similarly recognizes the power of the natural father to assert parental rights.
Michael must establish not that society has traditionally allowed a natural father in his circumstances to establish paternity, but that it has traditionally accorded such a father parental rights. To provide protection to an adulterous natural father is to deny protection to a marital father.
Victoria’s due process challenge is weaker than Michael’s. Her claim that a State must recognize multiple fatherhood has no support in history or tradition. The Court declines to accept Victoria’s argument that she had no opportunity to rebut the presumption of her legitimacy, because Victoria is not illegitimate.
Dissent. If we had looked to tradition with such specificity in past cases, many decisions would have had a different result. The plurality ignores the developing society in which we live. Liberty must include the freedom not to conform. This is not a new interest, in that of a parent and a child in their relationship with one another. The plurality’s decision is striking considering the precedent preventing States from denying important interests to those in situations that do not fit the government’s narrow view of the family.
Discussion. The dissent accuses the plurality of being too specific in its search of history to support the right claimed by appellant. An omitted concurring opinion agreed in the sense that it objected that the plurality’s historical analysis might foreclose the identification of future liberty interests.