Lisa I. v. Superior Court

Opinion

INTRODUCTION

We are called upon to consider whether a claimed biological father of a child bom within 300 days of the mother’s divorce from another man has standing under Family Code section 7630 to declare his paternity of that

The declarations filed by Lisa’s friends stated they have consistently seen Guy care for and support Lisa and Dane, and have seen Dane’s baby things in every room of Guy’s house, which one of the friends referred to as “Guy and Lisa’s house.”

The trial court denied Lisa’s motion to quash. The court found denying Phillip standing to establish paternity would violate his constitutional right to due process. The court also granted Phillip’s request that Lisa and Dane undergo genetic testing.

Lisa filed a petition for writ of mandate challenging the denial of her motion to quash and asked for a stay of all proceedings, including the order requiring genetic testing. We stayed the proceedings and the testing, and issued an order to show cause.

DISCUSSION

The threshold issue in this case is whether the Family Code grants Phillip, the claimed biological father, standing to pursue his paternity action against Lisa. If not, then we must decide whether applying the statutory paternity presumptions and standing requirements would violate a liberty interest protected by the federal Constitution’s due process clause.

The paternity presumptions are generated by society’s interest in preserving the integrity of the family and legitimate concerns for the welfare of the child. The state has an “ ‘ “interest in preserving and protecting the developed parent-child . . . relationships which give young children social and emotional strength and stability.” ’ ” (In re Nicholas H. (2002) 28 Cal.4th 56 , 65 [ 120 Cal.Rptr.2d 146 , 46 P.3d 932 ], quoting Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108 , 1116-1117 [ 39 Cal.Rptr.2d 535 ]; see also Susan H. v. Jack S. (1994) 30 Cal.App.4th 1435 , 1442 [ 37 Cal.Rptr.2d 120 ] [“applying the statutory presumption furthers the state’s interest in preserving the familial relationship between the child and the presumed father”].) These relationships are not always founded in biological reality.

It is clear in this case that Phillip has no standing under the foregoing statutes because he does not qualify as a presumed father. Indeed, Phillip does not attempt to argue he is a presumed father. He was never married to Lisa, he never received Dane into his home, and he never held Dane out to the world as his natural child. In contrast, it is Guy who qualifies as the presumed father under subdivisions (a) and (d) of section 7611 because Guy was married to Lisa when Dane was conceived, Dane was bom within 300 days of their divorce, and Guy has received Dane into his home and has held

2. Phillip Has No Protected Liberty Interest that Overcomes the Family Code Standing and Presumption Statutes.

Acknowledging he does not qualify as a presumed father under section 7611, and therefore has no standing under section 7630, Phillip argues his right to establish his paternity is a liberty interest protected by the due process clause of our federal Constitution. Specifically, Phillip contends sections 7611 and 7630 are invalid as applied to him because Dane was conceived while Lisa was separated from Guy, was bom after their divorce, and is not being raised in a “subsisting marital family.” We conclude that these facts, although largely undisputed, are insufficient to invalidate the substantive paternity laws and the purposes they serve.

The overarching consideration in deciding if due process precludes the application of paternity laws in a given situation is whether “an existing father-child relationship” between the unwed biological father and the child will be affected. (Brian C. v. Ginger K. (2000) 77 Cal.App.4th 1198 , 1200, 1207-1216 [ 92 Cal.Rptr.2d 294 ] (Brian C.).)

The leading California exposition of the mle is found in Dawn D., supra, 17 Cal.4th 932 . As the similarities and differences between the present controversy and Dawn D. are important, we review the familial relationships in Dawn D. in some detail. In January 1995, Dawn separated from her husband Frank and began living with Jerry. According to Jerry, Dawn told him she would marry him as soon as she legally could and that she wanted to start a family. Jerry began building an addition to his home in anticipation of having a child, and submitted to fertility testing at Dawn’s request. After she became pregnant, Dawn told people the baby was Jerry’s and that she intended to marry him. (Id. at p. 949 (dis. opn. of Chin, J.).) In April, however, Dawn moved back with her husband. That August, Jerry filed an action to establish his paternity to the yet-to-be bom child after unsuccessfully attempting to negotiate a child support and visitation agreement with Dawn and Frank. Jerry also completed a parenting course. In November, Dawn gave birth to a son, who lived with Dawn and Frank. (Id. at p. 936.)

Dawn moved for judgment on pleadings, contending that Jerry had no standing to establish paternity under section 7630. The trial court denied the motion, finding that, because Jerry had done all he could to demonstrate a commitment to his parental responsibilities, he had established “due process

The Supreme Court held that “a biological father’s mere desire to establish a personal relationship with the child is not a fundamental liberty interest protected by the due process clause.” (Dawn D., supra, 17 Cal.4th at p. 942.) Focusing on whether there was an existing relationship between Jerry and the child, rather than simply a desire to form a relationship, the court held Jerry did not have a constitutionally protected interest in creating a relationship with the child where none existed, and that application of sections 7611 and 7630 did not deprive him of due process. Jerry’s claim failed because “Jerry has never had any personal relationship with Dawn’s child, only an alleged biological link with an attempt to negotiate an agreement for child support and visitation.” (17 Cal.4th at p. 942.) In other words, because Jerry had not actually received the child into his home or developed a personal relationship beyond their biological connection, Jerry had no constitutional liberty interest in establishing his paternity. Jerry’s intent and Dawn’s promises were essentially irrelevant.

Our Supreme Court relied significantly on the United States Supreme Court’s decision in Michael H. v. Gerald D. (1989) 491 U.S. 110 [ 105 L.Ed.2d 91 , 109 S.Ct. 2333 ] (Michael H.). Michael H. involved a series of events, including a more developed relationship between the biological father and the child than existed in either Dawn D. or is present here. There, Carole began an affair with Michael while married and living with Gerald. The child was bom into the marriage, but Carole and Gerald separated five months later. Carole and Michael confirmed the child was theirs by blood tests and then lived together for two months, during which time Michael held the child out as his own. Carole then left Michael and began living with another man. Some months later, Michael filed an action to establish paternity and rights to visitation. For eight months while the action was pending, Carole and Michael lived together and Michael held the child out as his own. Carole and Michael even executed a stipulation stating Michael was the natural father. Before the stipulation was filed, however, Carole reconciled with Gerald and continued to live together with him, the child, and two other children bom during the marriage. (Id. at pp. 113-115.)

A plurality of the United States Supreme Court concluded Michael did not have a liberty interest in continuing his relationship with the child, notwithstanding that he had lived with Carole and the child for a period of time and held the child out as his own. (Michael H., supra, 491 U.S. at

It was the concurrence of views in the Michael H. opinions on this issue that caused our Supreme Court in Dawn D. to conclude that the question of whether a biological father without an existing personal relationship with a child has a protected liberty interest “has a ready answer,” citing Michael H. (Dawn D., supra, 17 Cal.4th at p. 941.) And the answer was that a father in that situation had no such liberty interest. (Ibid.) We now apply these principles to the case before us.

Here, Phillip’s only link to Dane is his contention that he is the biological father. Phillip has no relationship with Dane. And, other than his letter offering to provide Dane with insurance and support (which Lisa denies receiving) and two short visits with him between May and June 2004, Phillip made no substantial efforts to establish a parent-child relationship with Dane or provide for his or Lisa’s support. Contrary to Phillip’s assertion that he nonetheless has a constitutional liberty interest in the opportunity to develop a relationship with Dane, this was precisely the test proposed by the dissent in Dawn D. and specifically rejected by the majority of that court. (Dawn D., supra, 17 Cal.4th at p. 942; see id. at p. 948 (dis. opn. of Chin, J.).)

Phillip cites several cases for the proposition that a biological father has a constitutional right to establish paternity where the mother’s marriage to the presumed father terminated shortly after the child was born. He contends under the circumstances of this case, where Dane was bom after Lisa and Guy’s divorce, that the paternity presumptions do not further the state’s interest in the sanctity of marriage. He points out that in neither Dawn. D. nor Michael H. did the mother and presumed father divorce. Careful analysis of Phillip’s authorities reveals they are not helpful.

The first of the three is In re Lisa R. (1975) 13 Cal.3d 636 [ 119 Cal.Rptr. 475 , 532 P.2d 123 ] (Lisa R.). There, the juvenile court ruled that under former

The Court of Appeal reversed. The opinion discusses both the nonexistent original family unit consisting of the presumed father and mother, and the existing family relationship of the biological father and Melissa. A fair reading of the decision reveals that the court struggled with how much weight to give to the fact that the original marriage no longer was intact. It noted that in the then-recently decided Michael H., the United States Supreme Court was faced with a paternity claim by a biological father that would have interfered with a husband and wife who wanted “to raise [the wife’s] child jointly.” (Michael H., supra, 491 U.S. at p. 129, fn. 7.) The Michael H. plurality said that a protected liberty interest might exist when no such union exists. The Court of Appeal observed, however, that the original family unit was intact when Melissa was bom even though it was no longer so. Ultimately the Melissa G. court found that the biological father, who had an existing relationship with Melissa, had a protected liberty interest. (Melissa G., supra, 213 Cal.App.3d at pp. 1088-1089.)

In the present case, Guy and Lisa, previously married, wish to raise their son jointly. This is not the fully intact family present in Michael H. and Dawn D. where the parents first separated but then reconciled without getting a divorce. On the other hand, it is not the situation in Lisa R. where both parents were dead or in Melissa G. where the divorced mother and presumed father had no relationship at all. Dawn D. does not discuss Melissa G. so we cannot discern whether the Supreme Court would have found more significant the fact that in this case Guy and Lisa are together and raising three sons, or that they are no longer married and do not have an existing formal marital union to preserve. However, Dawn D.’s holding is clear that where the

The third case on which Phillip relies, Brian C., supra, 77 Cal.App.4th 1198 , is likewise unavailing. There, Ginger married William in March 1994. She met Brian in December 1994. Ginger and Brian commenced a relationship that month. In late January 1995, the two of them had sex in a Las Vegas hotel room, and it was about that time that Ginger’s daughter, Kennedy, was conceived. During this same period of time, Ginger lived, and had a sexual relationship, with her husband. In March, Ginger left her husband and moved into an apartment which she rented with Brian. Kennedy was bom in October 1995. Brian was present at Kennedy’s birth, his name appeared as Kennedy’s father on her birth certificate and baptismal records, and the three of them lived together. (Id. at pp. 1201-1202.)

One year later, Ginger and Brian broke up. However, Brian continued to see Kennedy after work each day and had custody on weekends until May 1997, when Ginger unilaterally “cut off all contact” because she and her husband William were reconciling. Brian continued to try to see Kennedy, calling Ginger and leaving messages all to no avail. Brian filed a paternity action, and Ginger moved for summary judgment. The trial court concluded that because Ginger and William were cohabitating at the time Kennedy was conceived, the conclusive presumption of section 7540 applied. (Brian C., supra, 77 Cal.App.4th at p. 1202.) That section provides that “the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.”

The appellate court disagreed and concluded that the important factor in overriding statutory presumptions of paternity was the existence of a relationship between the unwed father and the child. The court, relying extensively on Dawn D., stated, “Ginger, Brian and Kennedy were the only ‘family’ known by Kennedy for the first year of her life”; and the court held Brian had “a strong private interest in continuing an existing parent-child relationship based on a substantial period of time elapsing between the child’s birth and the mother’s return to her husband.” (Brian C., supra, 77 Cal.App.4th at pp. 1217-1218, original italics.) Although Phillip here tmmpets the result in Brian C., he fails to acknowledge that, unlike the biological father there, he has had no existing relationship with Dane.

As these cases exemplify, an existing relationship between the unwed father and the child is paramount in whether to nullify paternity presumptions. Substantive rules of paternity law will not be automatically

The fact the mother and a presumed father chose to terminate their marriage by divorce is not, by itself, a sufficient reason to conclude the state no longer has a legitimate interest in applying the paternity presumptions and preserving ongoing familial relationships. (See Susan H. v. Jack S., supra, 30 Cal.App.4th at pp. 1442-1443 [application of paternity presumption furthers substantial state interests in preserving the familial relationship between the child and presumed father and in promoting the child’s welfare even after the marriage between the presumed father and the mother has been dissolved].) Indeed, by its very terms, section 7611, subdivision (a)’s presumption is specifically intended to apply in the situation where the marriage dissolves and the child is bom within 300 days of the dissolution.

Guy also cites Adoption of Kelsey S. (1992) 1 Cal.4th 816 , 823 [ 4 Cal.Rptr.2d 615 , 823 P.2d 1216 ], an adoption case, and Michael M. v. Giovanna F. (1992) 5 Cal.App.4th 1272 [ 7 Cal.Rptr.2d 460 ] (Michael M.), in support of his position. Yet, our Supreme Court, in Dawn D., while acknowledging both of these cases, considered and rejected the claimed biological father’s constitutional arguments. (Dawn D., supra, 17 Cal.4th at p. 936.) As stated in Dawn D.’s concurring opinion, adoption cases such as Adoption of Kelsey S. are not applicable because those cases concern the situation where the unwed mother voluntarily surrenders her parental responsibilities by giving up her child to third parties, thereby not only dissolving any family unit but ending all parental relationship whatsoever. (Dawn D., at p. 943; see also id. at pp. 946-947 (conc. opn. of Kennard, J.).) In such cases, the recognition of the biological father’s “opportunity interest” in developing a

The petition is granted. The trial court is ordered to (1) vacate its order of March 22, 2005, denying Lisa’s motion to quash Phillip’s paternity action and granting genetic testing, and instead (2) issue a new order granting the motions to quash and for testing, and dismissing Phillip’s action.

Petitioner shall recover her costs.

Cooper, P. 1, and Boland, 1, concurred.

On November 8, 2005, the opinion was modified to read as printed above.