noting that a father’s constitutional “interest does not come into exis *715 tence or is soon lost, however, if the father is unable to demonstrate that he is fit and committed to the responsibilities of parenthood [or if the father has not] ‘taken concrete actions to grasp his opportunity to be a father’ ”
How later courts described this case
- noting that a father’s constitutional “interest does not come into exis *715 tence or is soon lost, however, if the father is unable to demonstrate that he is fit and committed to the responsibilities of parenthood [or if the father has not] ‘taken concrete actions to grasp his opportunity to be a father’ ”
- noting that a father’s constitutional “interest does not come into existence or is soon lost, however, if the father is unable to demonstrate that he is fit and committed to the responsibilities of parenthood [or if the father has not] ‘taken concrete actions to grasp his opportunity to be a father’”
- holding that DNA tests can establish paternity with “near certainty” and that “blood tests can prove virtually beyond a shadow of a doubt who sired a particular child” (quoting Michael H. v. Gerald D., 491 U.S. 110, 140, 109 S. Ct. 2333, 2351 (1989
- stating the Texas due course of law guarantee has independent vitality from the due-process clause of the fourteenth amendment
Written by the judges who cited it.
The opinion
HECHT, Justice,
concurring.
[Filed Feb. 2, 1994]
I agree with the Court that a father’s interest in his child is so fundamental an aspect of individual liberty that it cannot be denied by the State except by due course of law, as guaranteed by article I, section 19 of the Texas Constitution. It seems to me almost intuitive that in a free society the State cannot deny a man all right to his child without due process, and I should have thought this principle “too clear for dispute”, Michael H. v. Gerald D, 491 U.S. 110, 139 , 109 S.Ct. 2333, 2350 , 105 L.Ed.2d 91 (Brennan, J., dissenting), but for the dissenting opinions in this case. To dispel the doubt they raise whether parenthood is a constitutionally protected interest, the authorities on *199 which the Court relies to find this interest are more than persuasive.
In the past, the law did not as a rule recognize the right.of parenthood in a man who claimed to be the father of the child of a married woman. The reason, it seems to me, was merely that until recently it was impossible to determine the validity of such claims to any acceptable degree. Advancements in medical technology which can often predict, almost to a certainty, whether a man’s claim of paternity is valid remove that hindrance to acknowledging the right of parenthood. The right is not, of course, absolute. A father cannot assert his interest if he has obtained it by force, that is, by rape, or by fraud or other wrongdoing. Such circumstances are governed by the ancient maxim: nullus com-modum ca/pere potest de injuria sua propria. Also, the interest can be terminated by the father voluntarily, as in the case of adoption, and against the father involuntarily, as when he is adjudicated to have knowingly endangered the child’s wellbeing.
Acknowledging the right of a biological father in such circumstances does not preclude the existence of other equal rights. I should have thought it manifest that the “sanctity of the family ... is [so] deeply rooted in this Nation’s history and tradition”, id. at 124 , 109 S.Ct. at 2342 (Scalia, J., plurality), that the interests of its members in preserving its unity are also constitutionally protected. Any doubt cast upon the existence of such interests by the Court’s failure to acknowledge them is completely dispelled by authorities cited by Justice Enoch.
Thus, it seems to me that two constitutionally protected interests are involved in this case — parenthood and preservation of the family — and they are in conflict. The State has chosen to resolve this conflict by denying the biological father of a child who has a presumed father any standing to assert his interest. In all such circumstances, the family interest is made paramount by statute. I agree with the Court that the State has no reason or purpose sufficient to deny every biological father the right to assert his interest in a child simply because there is a presumed father. When a biological father acknowledges his responsibility to help support the child and has made every reasonable effort to establish a relationship with the child, he is entitled to assert his interest in the child, notwithstanding the opposition of the mother and her husband.
He is not, however, necessarily entitled to prevail in his assertion. I agree with the Court that in determining what rights a biological father may have in his child, the best interest of the child must be considered. I do not agree with the implication in the Court’s opinion — it is really only an implication and nothing more — that the best interest of the child is the only, or always the paramount, consideration. The interests of the mother and her husband in preserving their family unit exclusive of the biological father are equal in dignity to the biological father’s interest and entitled to equal consideration. Such interests are especially important when the best interest of the child is unclear. For example, when it appears that a child would do as well or better with his biological father as with his mother and her husband, should the biological father be allowed visitation if his continued presence in the child’s life would almost certainly imperil the stability of the mother’s marriage? I suspect this situation is commonplace, and I cannot see how consideration of the best interest of the child alone supplies the solution.
The Court does not exclude family interests from consideration in determining what rights should be awarded a biological father. I presume therefore that such interests can and should be fully considered. With this understanding, I concur in the judgment of the Court.