Petition for Writ of Certiorari — W. S., Petitioner v. S. T., et al.

No. _________

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------W.S.,

Petitioner,

v.

S.T. and M.T.,

Respondents.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The California Court Of Appeal,

Sixth Appellate District

-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI

-----------------------------------------------------------------EDWARD M. LYMAN

FAMILY LEGAL™

A PROFESSIONAL LAW CORPORATION

401 Wilshire Blvd.,

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i

QUESTIONS PRESENTED

A father’s right to parent his own child is a protected liberty interest. Stanley v. Illinois, 405 U.S. 645,

651 (1972). A father’s interest in retaining custody of

his child is cognizable and substantial. Ibid.

California’s Uniform Parentage Act, Family Code

§ 7611(d), is the statutory mechanism for determining

the existence of an unmarried father’s paternity. It requires proof of two elements: (1) that the alleged father

received the child into his home and (2) openly held the

child out as his own natural child.

The questions presented are:

1.

Whether California’s Family Code § 7611(d) is

impermissibly vague, as applied, when the

Court of Appeal holds “[t]here are no specific

factors that a trial court must consider before

it determines that a parent has ‘received’ a

child into the home[,]” and thereby affirms a

trial court’s deprivation of an unmarried father’s protected liberty interest in continuing

to raise his biological daughter.

2.

Whether California’s Uniform Parentage Act

exceeds constitutional limits in violation of

procedural due process, substantive due process, and equal protection, when it operates

to deprive an unmarried biological father of

the substantial bond he developed with his

daughter, whom he raised for the first five

years of her life.

ii

LIST OF PARTIES

The name of the Petitioner is:

W.S.

The name of the Respondents are:

S.T. and M.T.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

LIST OF PARTIES ..............................................

ii

TABLE OF CONTENTS ......................................

iii

TABLE OF AUTHORITIES .................................

v

OPINIONS BELOW.............................................

1

INTRODUCTION ................................................

1

COURT’S JURISDICTION ..................................

4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...............................

4

STATEMENT OF THE CASE..............................

5

A.

Factual Background ..................................

5

B.

The Statutory Framework .........................

7

C.

The Trial Court’s Paternity Test ...............

9

D.

The Court Of Appeal .................................. 13

REASONS FOR GRANTING THE WRIT............ 16

A.

The Court Of Appeal Could Not Determine

What The Statute Specifically Requires ..... 16

B.

California Disavowed Its Former Interest

In Preserving Marriage Via Paternity ...... 19

C.

The Decision Conflicts With This Court

And Many Others ...................................... 20

D.

National Importance ................................. 22

CONCLUSION..................................................... 24

iv

TABLE OF CONTENTS—Continued

Page

APPENDIX

California Court of Appeal Opinion

filed February 1, 2018 ...................................... App. 1

California Superior Court Judgment

filed June 9, 2015 ........................................... App. 35

California Superior Court Statement of

Decision filed March 19, 2015 ........................ App. 40

California Supreme Court Denial of Review

filed April 25, 2018 ......................................... App. 51

Relevant Statutory Provisions .......................... App. 52

v

TABLE OF AUTHORITIES

Page

CASES

Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir.

2003) ........................................................................21

Caban v. Muhammad, 441 U.S. 380 (1979)................10

Connally v. General Constr. Co., 269 U.S. 385

(1926) .......................................................................17

E.C. v. J.V., 202 Cal. App. 4th 1076 (2012) .................21

Grayned v. City of Rockford, 408 U.S. 104 (1972) ....... 18

Jason P. v. Danielle S., 9 Cal. App. 5th 1000

(2017) .......................................................................18

Lehr v. Robertson, 463 U.S. 248 (1983) ..... 10, 11, 12, 20

Meyer v. Nebraska, 262 U.S. 390 (1923) .....................22

Michael H. v. Gerald D., 491 U.S. 110 (1989) ....... 13, 19

Neil S. v. Mary L., 199 Cal. App. 4th 240 (2011) ........20

Pierce v. Society of the Sisters of the Holy Names

of Jesus and Mary, 268 U.S. 510 (1925) .................22

Robleto v. Holder, 539 Fed.Appx. 756 (2013) .............20

Sessions v. Dimaya, 138 S.Ct. 1204 (2018) ............ 2, 17

Stanley v. Illinois, 405 U.S. 645 (1972)................... 3, 22

Vernoff v. Astrue, 568 F.3d 1102 (9th Cir. 2009) ...........9

W.S. v. S.T., 20 Cal. App. 5th 132 (2018).......................1

Wisconsin v. Yoder, 406 U.S. 205 (1972) .....................22

vi

TABLE OF AUTHORITIES—Continued

Page

CONSTITUTION

U.S. Const. amend. XIV § 1 ..........................................4

STATUTES

California Family Code

3010 ................................................................... 14, 15

3010(a) ................................................................... 2, 9

7540 ............................................................... 8, 14, 19

7570(a) .....................................................................23

7601(a) .......................................................................8

7601(b) .......................................................................7

7601(c) ................................................................. 9, 10

7601(d) .....................................................................23

7602 ............................................................... 8, 14, 16

7610(a) .......................................................................8

7611(d) ............................................................. passim

U.S. Code

28 U.S.C. § 1257(a) ....................................................4

28 U.S.C. § 2403(b) ....................................................4

Other States

Am. Somoa Ann. Code § 45.0103(21) ......................22

Colo. Rev. Stat. § 19-4-105.......................................21

Del. Laws § 8-204(5) ................................................22

vii

TABLE OF AUTHORITIES—Continued

Page

Fla. §§ 742.10, 409.256 ............................................22

Mass. Ann. Laws Ch. 209C, § 6 ...............................22

Minn. Ann. Stat. § 257.55 .......................................21

Mont. Ann. Code § 40-6-107 ....................................21

N.J. Rev. Stat. § 9-17-43 ..........................................21

Tenn. Code § 36-2-304(a) ........................................21

Penn. Const. Stat. tit. 23, § 5102 ............................22

1

W.S. petitions for a writ of certiorari to review the

judgment of the California Court of Appeal, Sixth Appellate District.

OPINIONS BELOW

The opinion of the California Court of Appeal, W.S.

v. S.T. is reported at 20 Cal. App. 5th 132. App. 1-33.

The constitutional claims were decided by the California Court of Appeal in affirming the Superior Court’s

judgment. A petition for review was timely filed in the

California Supreme Court and denied on April 25,

2018. App. 51.

INTRODUCTION

W.S. raised his biological daughter A.T. for the first

five years of her life. Prior to this action, he never

needed to formally establish his paternity because

he worked out an informal custody and visitation arrangement with A.T.’s mother S.T.

On July 30, 2014, when A.T. was five years old, S.T.

unilaterally cut W.S. out of A.T.’s life for good because

S.T. was attempting to reconcile with her estranged

husband M.T.

A month later, W.S. filed this action in California

Superior Court for custody and visitation of A.T., but

California does not recognize an unmarried father’s

parental rights unless he can establish paternity.

In this situation, W.S.’s only mechanism for establishing paternity of his own daughter was under

2

California’s Family Code § 7611(d) which required him

to prove, inter alia, that he “received” his daughter into

his home.

The trial court determined that W.S. did not “receive” his daughter into his home and is therefore not

her father.

The trial court concluded “W.S. had not received

[A.T.] into his home, because he had not satisfied the

standard of ‘regular visitation’ which included ‘assumption of parent-type obligations and duties. . . .’ ”

App. 10. And, that W.S.’s “involvement with [A.T.],

though loving, as a biological father, was visitation as

a matter of convenience. Specifically, [W.S.’s] involvement with [A.T.] included seeing the child in his home

on the average of two times per week for a relatively

brief period of time of one to three hours.” App. 43.

“While this ruling determines legal rights and obligations of the parties during the minority of the child, it

does not change the fact that [W.S.] is the biological father of the child, and that the child is aware of [W.S.]

and had a relationship with him, notwithstanding not

to the [sic] standard of a presumed father.” Id. at p. 50.1

“The absence of a present legal right to visitation

1

California’s Uniform Parentage Act (UPA) has been

amended so many times one can no longer track its language and

discern what precisely a “presumed parent” is anymore, let alone

how to become one. For example, California Family Code

§ 3010(a) makes child custody rights contingent on whether an

individual is “presumed to be the father” under California Family

Code § 7611(d). But California Family Code § 7611(d), no longer

defines what a “presumed parent” is. Instead, it was amended to

define who is presumed to be a “natural parent.” See infra, n. 5.

3

does not prohibit [S.T. and M.T.] from informally agreeing to it to the extent it may be psychologically healthy

and in the best interest of [A.T.].”

W.S. challenged the trial court’s interpretation of

the statute which cannot be found in the statute’s plain

and ordinary meaning, and is inconsistent with other

state and federal courts.

The Court of Appeal denied W.S.’s constitutional

challenges and affirmed the trial court’s judgment

denying his paternity. App. 1-2, 39.

More troubling, the Court of Appeal held California’s Family Code § 7611(d) “does not provide an

express definition of what constitutes receipt of a

child into a parent’s home” App. 14. And, “there are no

specific factors that a trial court must consider before

it determines that a parent has ‘received’ a child into

the home and established a parental relationship.”

App. 17.

Petitioner challenges the law, as applied, because

it is impermissibly vague and fails to provide notice of

what conduct the state required of him before it deprived him of the substantial father-daughter bond he

had with his daughter.

The right to parent one’s own child is a fundamental right—a protected liberty interest. Stanley v.

Illinois, 405 U.S. 645, 651 (1972).

4

COURT’S JURISDICTION

The California Supreme Court’s order denying review was entered on April 25, 2018. App. 51. The California Court of Appeal, Sixth Appellate District’s

decision was entered on February 1, 2018. App. 1. The

Superior Court of the State of California for the

County of Santa Clara’s statement of decision was filed

on March 19, 2015. App. 40. This Court has jurisdiction

under 28 U.S.C. § 1257(a). 28 U.S.C. § 2403(b) may apply to this appeal.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

“No . . . State [may] deprive any person of life, liberty, or property without due process of law; nor deny

to any person within this jurisdiction equal protection

of the law” U.S. Const. amend. XIV § 1.

California Code § 7611(d) provides in part:

A person is presumed to be the natural parent

of a child if the person meets the [condition]

provided . . .

*

*

*

The presumed parent

[1] receives the child into his or her

home and

5

[2] openly holds out the child as his or

her natural child.2

The parties stipulated that W.S. satisfied the second element. App. 49. The only issue was whether he

received the child into his home.

Other pertinent statutory provisions are reproduced in the appendix to this petition. See App., infra,

55-66.

STATEMENT OF THE CASE

A. Factual Background

In 2002, S.T. married M.T. App. 2. In 2006, they

separated, stopped living together, and filed for divorce. Ibid.

About a year later, S.T. began dating W.S., one of

her co-workers. Ibid. W.S. believed S.T. was divorced

and living with her mother. Ibid. W.S. and S.T. had an

intermittent romantic relationship from 2007 until 2014.

In 2008, S.T. became pregnant with W.S.’s daughter. App. 3. S.T. told W.S. he was not the father and that

she had reconciled with M.T. Ibid.

In 2009, shortly after A.T. was born, S.T. suspected

W.S. was the father. App. 3. Using a DNA testing kit

purchased at a drugstore, W.S. and S.T. confirmed that

the child was W.S.’s daughter. Ibid.

W.S. first saw A.T. several weeks after she was

born, during a brief visit that lasted only several

2

Bracketed enumeration added.

6

minutes. App. 3. W.S. testified that he saw his daughter

almost every day and she spent the night at his apartment approximately once or twice a week. App. 3. S.T.

testified she only brought A.T. to visit W.S. approximately once or twice a week during her first year. Ibid.

W.S. believed that S.T. and A.T. were living with S.T.’s

mother. App. 3.

W.S. had all of the joys of being A.T.’s father. He

changed A.T.’s diapers, cleaned her, and bathed her.

He had purchased a crib for A.T., but she did not

use it. Ibid. A.T. slept in W.S.’s bed if she spent the

night. Ibid.

W.S. made bottles for her if she woke up by putting

a scoop of formula in a bottle with warm water. Ibid.

At trial, S.T. insisted she “would not have permitted

her daughter to drink bottles made with warm water

that was not boiled first.” Ibid.

In 2013, A.T. was enrolled in a private pre-school

under W.S.’s last name. App. 4. W.S. paid for A.T.’s tuition for approximately one year. Ibid. He frequently

dropped A.T. off and picked her up at school. Ibid. A.T.’s

teacher at preschool confirmed that W.S. and S.T. often

picked A.T. up at school together. Ibid. A.T. would run

to W.S. when he came to get her. Ibid. W.S. participated

in school activities and parent-teacher conferences.

The teacher recalled that A.T. called W.S. “Pa” or

“Daddy.” App. 4-5.

7

W.S. paid for his daughter’s private Montessori

pre-school. App. 49.

S.T. took A.T. to W.S.’s house on A.T.’s first five

birthdays, and on Halloween, or holidays such as

Christmas when W.S. had gifts for A.T. App. 7.

S.T. acknowledges A.T. went on trips with W.S. and

W.S.’s mother, including a trip to the Jelly Belly factory

for A.T.’s second birthday, and a trip to Six Flags for

her fourth birthday. App. 7.

On July 4, 2014, S.T. confessed to M.T. that she had

been leading a double life. App. 8. All along, S.T. had

purportedly misled M.T. into believing that he was

A.T.’s biological father. Ibid. S.T. also confessed to M.T.

that she was in a relationship with W.S. Ibid.

On July 30, 2014, S.T. picked A.T. up from W.S.’s

home for the last time and unilaterally cut W.S. out of

A.T.’s life forever. A month later, W.S. filed this action.

B. The Statutory Framework

In California, “parent and child relationship”

means “the legal relationship existing between a child

and the child’s natural or adoptive parents incident to

which the law confers or imposes rights, privileges, duties, and obligations. The term includes the mother and

child relationship and the father and child relationship.” Cal. Fam. Code § 7601(b).

The “parent and child relationship” may be established between a child and the “natural parent” by

8

proof of having given birth to the child, or under California’s Uniform Parentage Act (“UPA”).3 Cal. Fam.

Code § 7610(a).

“Natural parent” means a nonadoptive parent established under the UPA, “whether biologically related

to the child or not.” Cal. Fam. Code § 7601(a).4

The “parent and child relationship” extends

equally to every child and to every parent, regardless

of the marital status of the parents. Cal. Fam. Code

§ 7602. However, this directly conflicts with Cal. Fam.

Code § 7540, which states: “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 primary means for a father in California to

acquire rights as a natural father is through application of California Family Code § 7611.” Vernoff v.

Astrue, 568 F.3d 1102, 1107 (9th Cir. 2009). Subject to

some exceptions, not relevant here, an unmarried biological father is “presumed to be the natural parent of

a child if . . . [t]he presumed parent receives the child

into his or her home and openly holds out the child as

his or her natural child.” Cal. Fam. Code § 7611(d).

“The mother of an unemancipated minor child and

the father, if presumed to be the father under Section

3

The UPA is codified at Cal. Fam. Code §§ 7600-7730.

The meaning of “natural parent” is often confused because

prior to the enactment of Cal. Fam. Code § 7601(a), “natural parent” meant a child’s biological parent.

4

9

7611, are equally entitled to the custody of the child.”

Cal. Fam. Code § 3010(a).

The UPA “does not preclude a finding that a child

has a parent and child relationship with more than two

parents.” Cal. Fam. Code § 7601(c).

C. The Trial Court’s Paternity Test

On August 22, 2014, W.S. filed a petition to establish a parental relationship with daughter. App. 8. W.S.

alleged he was A.T.’s biological father and requested

joint legal and physical custody and equal visitation.

Ibid.

S.T. filed a response asserting that A.T. was not

W.S.’s daughter. App. 8. S.T. admitted that she had a

relationship with W.S. before she became pregnant

with A.T. Ibid.

S.T. declared, however, that M.T. was the father because S.T. and M.T. were married and cohabiting during conception. App. 8.

On October 21, 2014, the trial court found under

California Family Code § 7540, there was a conclusive

presumption that M.T. was A.T.’s father, because he

was married to and cohabitating with S.T. when A.T.

was conceived. App. 10. The trial court granted M.T.’s

motion for joinder. Ibid.

The trial court conducted a three day trial on

W.S.’s paternity, or lack thereof. App. 10.

10

On March 19, 2015, the trial court issued a written

statement of decision denying W.S.’s paternity and concluded that since he was not a legally recognized parent, there was no need for a hearing on the issues of

custody or visitation. App. 40-50.

Although the trial court only recognized that S.T.

and M.T. have parental rights, California’s UPA allows

for a child to have over two parents. Cal. Fam. Code

§ 7601(c).

The trial court found: “W.S. did not prove by a preponderance of the evidence that he received the child

into his home within the meaning of Family Code Section 7611(d), and accordingly, he is not a presumed parent under Family Code Section 7611(d).” App. 40. It

further found, “[w]here the child has not lived in a

party’s home, as the case here, the requirement under

Family Code Section 7611(d) of receiving the child into

the party’s home may be met by an alternate means of

sufficient evidence of regular visitation[.]” App. 41.

The trial court’s test is a dangerous misinterpretation of the language from Lehr v. Robertson 463

U.S. 248 (1983). In Lehr, this Court explained “[w]hen

an unwed father demonstrates a full commitment to

the responsibilities of parenthood by ‘com[ing] forward

to participate in the rearing of his child,’ [citation], his

interest in personal contact with his child acquires

substantial protection under the due process clause.

At that point it may be said that he “act[s] as a father

toward his children.” Id., at 261 (quoting Caban v.

Muhammad, 441 U.S. 380, 392, 389, n. 7).

11

The trial court, however, did not focus on whether

W.S. came forward to participate in the rearing of A.T.,

as mentioned in Lehr. Instead, the trial court focused

on California cases that mistakenly confuse Lehr to

require that W.S. had to prove he had alr

eady participated in rearing his child in a responsible

manner. The trial court’s interpretation creates a paradox. The trial court required W.S. to prove his paternity based on how responsible of a father he had been.

Lehr simply required an unwed father demonstrate a

full commitment to responsibilities of parenthood going forward. Lehr does not actually require the unwed

father be a “responsible” parent. But the trial court’s

statement of decision is permeated by the judge’s qualitative analysis of the depth of the parental obligations

W.S. had taken on during the first five years of A.T.’s

life. For example, the trial court entertained testimony

such as whether W.S. used warm or spoiled water when

he prepared A.T.’s baby formula. App. 4.

This Court further explained in Lehr that “[t]he

significance of the biological connection is that it offers

the natural father an opportunity that no other male

possesses to develop a relationship with his offspring.

If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy

the blessings of the parent-child relationship and

make uniquely valuable contributions to the child’s development. If he fails to do so, the Federal Constitution

will not automatically compel a state to listen to his

opinion of where the child’s best interests lie.” 463 U.S.

at 262.

12

W.S. raised A.T. for the first five years of her life,

therefore, California should be compelled to listen to

his opinion of where A.T.’s best interests lie by way of

a hearing on custody and visitation.

The trial court’s interpretation of what’s required

conflicts with and far exceeds the requirements discussed in Lehr. The trial court concluded “[i]t is clear

that receiving the child into one’s home is an element

requiring more than consent, request, or facilitation of

the child into the party’s home by the party seeking

presumed parent status. Rather, that element may be

proven by regular visitation, which decided cases define as an assumption of parent-type obligations and

duties such as feeding, bathing, putting the child to bed

or naps, changing clothes, cleaning up after the child,

discipline and the like. Whenever this Court in its ruling today refers to parental-type task or duties, the

court is referring specifically to these stated responsibilities of care as more specifically set forth in the cited

cases.” App. 41.

The trial court found “that the child never lived

in [W.S.’s] home, and from the totality of the credible

evidence, including inferences drawn from the evidence, finds that [W.S.] failed to satisfy the alternative

means of proving receipt of the child into his home by

the regular visitation standard.” App. 42. The trial

court further found “that [W.S.’s] involvement with the

child, though loving, as a biological father, was visitation as a matter of convenience. Specifically, [W.S.’s] involvement with the child included seeing the child in

his home on the average of two times per week for a

13

relatively brief period of time of one to three hours.”

Ibid.

The trial court found “Notwithstanding, overnights of the child in the home of the parent seeking

presumptive parent status is but one factor in the overall assessment of whether or not a party has met the

requirements of Family Code section 7611(d).” App. 44.

The trial court in determining W.S. failed to receive A.T. into his home, looked to the fact that W.S.

did not previously seek a court order regarding visitation any sooner than he did. The trial court found “The

failure to exercise or seek orders for more visitation,

including overnights, under these particular circumstances, is a factor in assessing whether or not [W.S.]

assumed parental type duties, and, hence, whether or

not he had regular visitation.” App. 44.

D. The Court Of Appeal

W.S. appealed the trial court’s decision on constitutional grounds, including, his substantive due process right under the Fourteenth Amendment to parent

his daughter. (AOB 29-32). And that his interest in custody of his child was a cognizable and substantial interest that could not be terminated absent showing

unfitness under Michael H. v. Gerald D., 491 U.S. 110,

136 (1989). (AOB 30-31).

W.S. argued “California’s statutory scheme is unconstitutional, violating the principles of due process

and equal protection.” App. 2. He raised the equal

14

protection argument that “California law automatically grants custody to biological mothers, but not fathers.” (AOB 31). That California law requires fathers

to establish a right which according to the U.S. Supreme Court is an inherent right. (AOB 31). He raised

the issue that “California law further divides this suspect class of fathers into subclasses based on their marital status. Those who are married are granted

presumed parent status and therefore the right to custody. Those who are unwed however, must prove receipt and acknowledgment of their child, before they

are conferred with the fundamental right to custody of

their child. Yet [California Family Code § 7602] provides ‘[t]he parent and child relationship extends

equally to every child and to every parent, regardless

of the marital status of the parents. This scheme directly conflicts with [California Family Code §§ 3010

and 7611] which explicitly grant preferences to mothers over fathers and prefer married fathers over unwed

fathers. As applied, the court automatically granted

M.T. parentage rights under section 7540, because

[A.T.] was a child of the marriage. M.T., did not have to

prove he parented [A.T.], yet received parent status.’ ”

(AOB 31-32). W.S. argued “[t]his contravenes the intent of [California Family Code § 7602].” And that, “ . . .

California can provide no compelling government interest furthered by such discrimination. Especially

given the Legislature’s intent for equal rights expressed in the context of establishing a parent child relationship under the UPA. (§ 7602.)” (AOB 32).

15

The Court of Appeal acknowledged W.S. raised

“several constitutional challenges to the statutory

scheme of the UPA and the Family Code. [W.S.] argues

he has a liberty interest, protected as a matter of substantive due process, in his relationship with [his]

daughter. He also argues section 3010 violates equal

protection principles, because it automatically grants

custody to biological mothers while requiring fathers

to establish ‘presumed’ parenthood under section 7611.

He argues California law further divides fathers into

various subclasses based on their marital status, readily granting married fathers presumed parenthood status while requiring unmarried fathers to additionally

prove receipt of the child into the home and acknowledgement of the child as his own.” App. 27

The Court of Appeal preliminarily ruled that

W.S.’s “constitutional arguments are waived for failure

to raise them to the trial court . . . ” App. 27. W.S. “did

not discuss these constitutional issues in either his

trial brief or his original petition to establish a parental relationship.” Ibid. But constitutional issues were

in fact raised in W.S.’s trial brief. The Court of Appeal

then determined, “even if we were to consider [W.S.’s]

arguments as pure questions of law presented by undisputed facts, we would reject them.” Ibid.

Notwithstanding, the Court of Appeal determined

W.S. does not have a “protected liberty interest in establishing a parental relationship with [A.T.] and his

parental rights were not entitled to equal protection as

to those of a mother.” App. 27.

16

The Court of Appeal determined W.S.’s “claim that

the statute unconstitutionally prefers married fathers

over unmarried fathers in violation of equal protection

principles is undeveloped on appeal.” App. 30. The

Court of Appeal analyzed the equal protection issue

and determined “Legislative classification is permissible when made for a lawful state purpose and when

classification bears a rational relationship to that purpose.” Ibid. But, the Court of Appeal ignored that California expressly states that parental rights extend

equally to both parents despite marital status. See Cal.

Fam. Code § 7602.

W.S. timely filed a petition for discretionary review

in the California Supreme Court which was denied on

April 25, 2018. App. 51.

REASONS FOR GRANTING THE WRIT

A. The Court Of Appeal Could Not Determine

What The Statute Specifically Requires

This case presents novel questions including

the opportunity to explain the applicability of the

vagueness doctrine in the family law context. What

specificity is required of a state law that can circumvent an individual’s protected liberty interest in raising his own children? What is the constitutional limit

on a state’s paternity determination? Are states free to

pick and choose who they want to recognize as having

a protected liberty interest?

17

The Court of Appeal’s acknowledgment that California’s Family Code § 7611(d) “does not provide an express definition of what constitutes receipt of a child

into a parent’s home” begs the question, how then,

could any citizen of ordinary intelligence discern what

the statute requires?5 App. 14.

The Court of Appeal further concluded, “there are

no specific factors that a trial court must consider before it determines that a parent has ‘received’ a child

into the home and established a parental relationship.”

App. 17.

But “Fair notice of the law’s demands as we’ve

seen, is ‘the first essential of due process’ ” Sessions v.

Dimaya, 138 S.Ct. 1204, 1228 (2018) (quoting Connally

v. General Constr. Co., 269 U.S. 385, 391 (1926).) “And

as we’ve seen, too, the Constitution sought to preserve

a common law tradition that usually aimed to ensure

fair notice before any deprivation of life, liberty, or

property could take place, whether under the banner

of the criminal or the civil law.” Ibid.

5

In this case, no ordinary person of average intelligence

could understand what conduct is required of an individual to

establish his parentage by reading the plain language of California’s Family Code § 7611(d). Or, as Justice Thomas recently reminded us, that he adheres to his view that “a law is not facially

vague ‘[i]f any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden

by the law.’ ” Sessions v. Dimaya, 138 S. Ct. 1204, 1252 (2018)

(Thomas, J., dissenting) (quoting City of Chicago v. Morales, 527

U.S. 41, 112 (1999)) (quoting Kolender v. Lawson, 461 U.S. 352,

370–371 (White, J., dissenting)).

18

“If arbitrary and discriminatory enforcement is to

be prevented, laws must provide explicit standards for

those who apply them.” Grayned v. City of Rockford,

408 U.S. 104, 108 (1972).

“A vague law impermissibly delegates basic policy

matters to policemen, judges, and juries for resolution

on an ad hoc and subjective basis, with the attendant

dangers of arbitrary and discriminatory application.”

Grayned, 408 U.S. at 108. How can it be that a father’s

fundamental right to parent his own child, to continue

the loving bonds he had with his own daughter for the

first five years of her life, could be severed and terminated abruptly by such vague language? How could

any individual be on notice of what California Family

Code § 7611(d) requires if the Court of Appeal cannot

recognize any “express definition” of what “receipt into

the home” requires? App. 14.

That the language of the statutory provision is impermissibly vague is further evidenced by the number

of arbitrary decisions in California such as Jason P. v.

Danielle S., 9 Cal. App. 5th 1000, 1022 (2017), affirming a finding that Jason P. was the father because he

“received” the child into his home. The lower court’s

finding was based on the child having “regularly spent

time at the apartment when Jason was living there,

Jason made arrangements with his assistant to accommodate [the mother and child] during their visits, he and

[the child] went to the park when he was not working, he

fed, played music for, and read to [the child], he arranged

for an allergist to see [the child] in New York, he obtained a baby gate to prevent [the child] from falling

down the stairs in the apartment, and there was a

19

room in the apartment that was designated as [the child’s]

room when he was there. The court concluded that

‘[g]iven the historically liberal interpretation of acts sufficient to ‘receive’ a child into the home and the case law

specifically finding that no period of any specific length

is required to meet the ‘receiving’ requirement, the evidence is sufficient to make that finding.’ ” Ibid.

B. California Disavowed Its Former Interest

In Preserving Marriage Via Paternity

California Family Code § 7602 broadens the guarantees of equal protection by insisting that “[t]he parent and child relationship extends equally to every

child and to every parent, regardless of the marital status of the parents.” This Legislative demand directly

conflicts with California Family Code §§ 7611(d) and

7540. California Family Code § 7611(d) must violate

equal protection because it requires an unmarried father to prove a substantially burdensome test before

the state will recognize his fundamental right to parent his own child. While California Family Code § 7540

conclusively presumes that a spouse married to the

birth mother has parental rights.

In addition, California now permits a child to have

over two parents. This undermines any argument California may have had in Michael H., that the statutory

purpose of not recognizing the unmarried father’s parental rights is to somehow preserve the mother’s marriage.

Plus, during the trial, M.T. could not even identify

the name of A.T.’s pre-school. App. 7. Yet California,

20

has extended him the constitutionally protected liberty interest in being A.T.’s exclusive father.

C. The Decision Conflicts With This Court And

Many Others.

This Court held in Lehr, supra, 463 U.S. at 261262, that fathers who have participated in raising their

illegitimate children and have developed a relationship with them have constitutionally protected parental rights.

Federal courts interpret California’s Family Code

§ 7611(d) differently than the state courts. The Ninth

Circuit determined that a father did not satisfy

7611(d) by receiving the child into the mother’s home.

Robleto v. Holder, 539 Fed.Appx. 756 (2013). The federal court required the alleged father to prove he had

received the child “into his home, not the grandmother’s home.” (emphasis in original). W.S. was required, however, to prove much more than the fact that

he brought A.T. into his home.

In Neil S. v. Mary L., 199 Cal. App. 4th 240, 247

(2011), the Court of Appeal determined “ . . . [e]stablishing presumed father status under this presumption requires a certain level of contact between the

alleged father and child; a putative father’s time spent

with the child on alternate weekends has been held

sufficient to constitute receiving a child into his home

. . . as has daytime childcare and one overnight stay

each week in the putative father’s home.” (citing Craig

L. v. Sandy S., 125 Cal. App. 4th 36, 44-45 (2004)).

21

In Barthelemy v. Ashcroft, the Ninth Circuit explained that a father legitimated his son under California Family Code § 7611(d) when he “took his son

into his home with his wife Marie’s consent, and held

out Barthelemy as his son. Therefore Roger legitimated his son under California law.” 329 F.3d 1062

(9th Cir. 2003) as amended (June 9, 2003).

In E.C. v. J.V., 202 Cal. App. 4th 1076, 1086 (2012),

the Court of Appeal gave the language of California

Family Code § 7611(d) its plain meaning and held that

receiving a child into one’s home was met by uncontradicted evidence that the mother and child had moved

into the presumed parent’s home, without any inquiry

into the parenting relationship.

More chaotic is the wide range of mechanisms employed by other states to determine the existence of parental rights. There is no consensus amongst the states

regarding the meaning of “father” and many states do

not make parental rights contingent on “receiving” a

child into the home.

Some states are identical to California’s Family

Code § 7611(d). Colorado’s, Minnesota’s, and Montana’s,

and New Jersey’s, and Tennessee’s laws are similar to

California’s but require the father receive the child

into the home, while the child “is under the majority[.]”

Colo. Rev. Stat. § 19-4-105; Minn. Ann. Stat. § 257.55,

Mont. Ann. Code § 40-6-107; N.J. § 9-17-43; Tenn.

Code § 36-2-304(a). Some states have nuances to

the “receipt” requirement. Massachusetts requires

thealleged father to have “jointly with the mother,

22

received the child into their home . . . ” Mass. Ann.

Laws Ch. 209C, § 6. Pennsylvania requires clear and

convincing evidence of receipt into the home while California requires a preponderance of the evidence. Penn.

Const. Stat. tit. 23, § 5102. Pennsylvania permits the

alleged father to circumvent receipt and acknowledgement altogether by simply providing “support for the

child.” Ibid. In American Samoa, a father can obtain

legal rights by “asserting his paternity in writing.” Am.

Somoa Code § 45.0103(21). Delaware law requires that

for the first two years of the child’s life, the alleged father has to reside “in the same household with the

child and openly hold out the child as his own.” Del.

§ 8-204(5). Still, other states do not recognize parental

rights based on whether a child is received into the

home. See, e.g., Fla. §§ 742.10, 409.256. This chaotic

web of rights is arbitrary given the fundamental nature of the liberty interest at stake.

D. National Importance

This case presents important federal questions

about parental rights. In Meyer v. Nebraska, 262 U.S.

390, 339 (1923), this Court held that the Due Process

Clause protects a parent’s right to “establish a home

and bring up children.” And that the “rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some

purpose within the competency of the State.” Pierce v.

Society of the Sisters of the Holy Names of Jesus and

Mary, 268 U.S. 510, 535. This Court later determined

that a father has a protected liberty interest in

23

parenting his own children. Stanley v. Illinois, 405 U.S.

645, 651 (1972). “The history and culture of Western

civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children.

This primary role of the parents in the upbringing of

their children is now established beyond debate as an

enduring American tradition.” Wisconsin v. Yoder, 406

U.S. 205, 232 (1972).

California’s Legislature has declared there is a

compelling state interest in establishing paternity for

all children for several reasons including “[k]nowledge

of family medical history is often necessary for correct

medical diagnosis and treatment. Additionally, knowing one’s father is important to a child’s development.”

Cal. Fam. Code § 7570(a).

California law states: “[f ]or purposes of state law,

administrative regulations, court rules, government

policies, common law, and any other provision or source

of law governing the rights, protections, benefits, responsibilities, obligations, and duties of parents, any

reference to two parents shall be interpreted to apply

to every parent of a child where that child has been

found to have more than two parents under this part.”

Cal. Fam. Code § 7601(d).

24

CONCLUSION

W.S. has not seen his daughter in over four years.

He has no idea what she looks like any more, where

she is, or whether she is safe. It cannot stand that California treats W.S. as a complete stranger to his own

daughter who recognizes him as her “pa daddy.”

Respectfully submitted,

EDWARD M. LYMAN

FAMILY LEGAL™

A PROFESSIONAL LAW CORPORATION

401 Wilshire Blvd.,

Twelfth Floor

Santa Monica, CA 90401

310-752-7770

ed@family.legal