explaining that nothing in the older sources or older cases specifically addressed “the power of the natural father to assert parental rights over a child born into a woman’s existing marriage with another man” and that nothing in the caselaw showed that the states “in fact award[ed] substantive parental 17 rights to the natural father of a child conceived within, and born into, an extant marital union that wishe[d] to embrace the child”
How later courts described this case
- explaining that nothing in the older sources or older cases specifically addressed “the power of the natural father to assert parental rights over a child born into a woman’s existing marriage with another man” and that nothing in the caselaw showed that the states “in fact award[ed] substantive parental 17 rights to the natural father of a child conceived within, and born into, an extant marital union that wishe[d] to embrace the child”
- explaining that the illegitimacy of certain legislative irrebuttable presumptions did not rest on procedural due process, but rather on “the adequacy of the ‘fit’ between the classification and the policy that the classification serves,” in rejecting the assertion of a procedural due process claim by a putative father to establish his paternity and proceeding with his substantive due process claim
- concluding that biological father who had an established relationship with his child did not have liberty interest sufficient to invalidate state statutory presumption that the mother’s husband was the child’s father
- recognizing that a presumed father and an alleged father both have a unique claim to parent the child and stating that the resolution of such disputes is a matter of public policy governed by state law
Written by the judges who cited it.
Later courts went against this
Questioned by D.M.T. v. T.M.H., 38 Fla. L. Weekly Supp. 812 (2013)
Further, in the dissent’s assertion that the majority of this Court “improperly constitutionalize[s]” its preferences and “impose[s] them upon the rest of the citizenry,” dissenting op. at 64, the dissent relies on a plurality opinion written by Justice Scalia in Michael H. v. Gerald D., 491 U.S. 110, 122, 109 S.Ct. 2383, 105 L.Ed.2d 91 (1989), and a view actually called into question by two of those concurring in th…
The opinion
Justice Stevens,
concurring in the judgment.
As I understand this case, it raises two different questions about the validity of California’s statutory scheme. First, is Cal. Evid. Code Ann. §621 (West Supp. 1989) unconstitutional because it prevents Michael and Victoria from obtaining a judicial determination that he is her biological father-even if no legal rights would be affected by that determination? Second, does the California statute deny appellants a fair opportunity to prove that Victoria’s best interests would be served by granting Michael visitation rights?
On the first issue I agree with Justice Scalia that the Federal Constitution imposes no obligation upon a State to *133 “declare facts unless some legal consequence hinges upon the requested declaration.” Ante, at 126. “The actions of judges neither create nor sever genetic bonds.” Lehr v. Robertson, 463 U. S. 248, 261 (1983).
On the second issue I do not agree with Justice Scalia’s analysis. He 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 conception and birth. I think cases like Stanley v. Illinois, 405 U. S. 645 (1972), and Caban v. Mohammed, 441 U. S. 380 (1979), demonstrate that enduring “family” relationships may develop in unconventional settings. I therefore would not foreclose the possibility that a constitutionally protected relationship between a natural father and his child might exist in a case like this. Indeed, I am willing to assume for the purpose of deciding this case that Michael’s relationship with Victoria is strong enough to give him a constitutional right to try to convince a trial judge that Victoria’s best interest would be served by granting him visitation rights. I am satisfied, however, that the California statute, as applied in this case, gave him that opportunity.
Section 4601 of the California Civil Code Annotated (West Supp. 1989) provides:
“[Rjeasonable visitation rights [shall be awarded] to a parent unless it is shown that the visitation would be detrimental to the best interests of the child. In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the ivelfare of the child.” (Emphasis added.)
The presumption established by §621 denied Michael the benefit of the first sentence of § 4601 because, as a matter of law, he is not a “parent.” It does not, however, prevent him from proving that he is an “other person having an interest in the welfare of the child.” On its face, therefore, the statute *134 plainly gave the trial judge the authority to grant Michael “reasonable visitation rights.”
I recognize that my colleagues have interpreted § 621 as creating an absolute bar that would prevent a California trial judge from regarding the natural father as either a “parent” within the meaning of the first sentence of § 4601 or as “any other person” within the meaning of the second sentence. See ante, at 116, 119; post, at 148-151 (Brennan, J., dissenting). That is not only an unnatural reading of the statute’s plain language, but it is also not consistent with the California courts’ reading of the statute. Thus, in Vincent B. v. Joan R., 126 Cal. App. 3d 619 , 179 Cal. Rptr. 9 (1981), appeal dism’d, 459 U. S. 807 (1982), the California Court of Appeal, after deciding that the § 621 presumption barred a natural father from proving paternity, went on to consider the separate question whether it would be proper to allow visitation pursuant to the second sentence of §4601:
“Finally, appellant contends that even if Frank is conclusively presumed to be Z.’s father, appellant should be allowed visitation rights, since Civil Code section 4601 gives discretion to grant visitation rights to ‘any other person having an interest in the welfare of the child.’ We think it obvious that in the circumstances of this case such court-ordered visitation would be detrimental to the best interests of the child. Appellant’s interest in visiting the child is based on his claim that appellant is Z.’s father. Such claim is now determined to be legally impossible. The mother does not wish the child to be visited by appellant. Confusion, uncertainty, and embarrassment to the child would likely result from a court order that appellant, who claims to be Z.’s biological father, is entitled to visitation against the wishes of the mother. (Petitioner F. v. Respondent R., supra, 430 A. 2d 1075, 1080 .)” 126 Cal. App. 3d, at 627-628 , 179 Cal. Rptr., at 13 (emphasis added).
*135 Supporting the court’s decision that granting visitation rights to Vincent would be contrary to the child’s best interests was the fact that “unlike the putative fathers in Stanley [v. Illinois, 405 U. S. 645 (1972),] and [In re] Lisa R. [, 13 Cal. 3d 636 , 532 P. 2d 123 (1975)], appellant has never lived with the mother and child, nor has he ever supported the child.” 126 Cal. App. 3d, at 626 , 179 Cal. Rptr., at 12 .
Similarly, in this case, the trial judge not only found the conclusive presumption applicable, but also separately considered the effect of § 4601 and expressly found “that, at the present time, it is not in the best interests of the child that the Plaintiff have visitation. The Court believes that the existence of two (2) ‘fathers’ as male authority figures will confuse the child and be counter-productive to her best interests.” Supp. App. to Juris. Statement A-90 — A-91. In its opinion, the Court of Appeal also concluded that Michael “is not entitled to rights of visitation under section 4601,” see 191 Cal. App. 3d 995, 1013 , 236 Cal. Rptr. 810, 821 (1987), and then quoted the above excerpt from the opinion in Vincent B. v. Joan R. As I read that opinion, it does not support the view that a natural father cannot be an “other person” within the meaning of §4601; rather, it indicates that the outcome depends largely on “the circumstances of th[e] case.” *
Under the circumstances of the case before us, Michael was given a fair opportunity to show that he is Victoria’s natural father, that he had developed a relationship with her, and that her interests would be served by granting him visitation rights. On the other hand, the record also shows that after its rather shaky start, the marriage between Carole and Gerald developed a stability that now provides Victoria with *136 a loving and harmonious family home. In the circumstances of this case, I find nothing fundamentally unfair about the exercise of a judge’s discretion that, in the end, allows the mother to decide whether her child’s best interests would be served by allowing the natural father visitation privileges. Because I am convinced that the trial judge had the authority under state law both to hear Michael’s plea for visitation rights and to grant him such rights if Victoria’s best interests so warranted, I am satisfied that the California statutory scheme is consistent with the Due Process Clause of the Fourteenth Amendment.
I therefore concur in the Court’s judgment of affirmance.
For cases showing the California courts’ willingness to decide §621 cases on a case-by-case basis, see, e. g., Michelle W. v. Ronald W., 39 Cal. 3d 354 , 703 P. 2d 88 (1985), app. dism’d, 474 U. S. 1043 (1986); In re Lisa R., 13 Cal. 3d 636 , 532 P. 2d 123 , cert, denied sub nom. Porzuczek v. Towner, 421 U. S. 1014 (1975).