Record and brief — Olpin ex rel. Louden v. Olpin

UdHed

Office - Supreme Court, U.S

| FILED

81-6 28 SEP 28 198!

ALEXANDE® L. STEVAS

IN THE

Supreme Court of the United States

October Term, 1981

KIMBERLY ANNE OLPIN, a minor, by her guardian ad litem,

VIRGINIA LOUDEN,

Petitioner,

vs.

OweEN C. OLPin,

Respondent.

—_—_——_—

Petition for Writ of Certiorari

to the Supreme Court of the

State of California.

VIRGINIA LOUDEN,

Guardian Ad Litem,

Appearing In Propria Persona,

720 Machado Drive,

Venice, Calif. 90291,

(213) 399-4494.

i

Question Presented for Review.

Is it a denial of equal protection under the 14th Amend-

ment of the Constitution of the United States of America

for the state of California to establish laws that give a parent

the right to protect his emotional need for familial relation-

ships through hearings and enforcement procedures regard-

ing visitation against his minor child, while denying any

and all right to a child to sue to protect her emotional needs

for familial relationships, leaving all children wichout legal

redress for the wrong of emotional abandonment by one of

their parents?

TABLE OF CONTENTS

Page

Questions Presented for Review ......................000. i

I eat t 05s os ss sctpaccndnonecamionsetal |

Official Report of the Opinion of the California Court

Pt ETE. cccdtevnccsscccousdidasiosoccasouts 2

Jurisdiction of United States Supreme Court ............ 2

Constitutional and Statutory Provisions Involved ...... 2

III vccvnccasiebeensevadiensisscctncredstes 3

Argument for Allowance of Writ ......................... 5

A. Benefits Conferred Upon Adult Citizens of Cali-

ST Wisieidialadasennaceidbgssccoedtassnbsrnnnssbsusaes 5

B. Class Protected in Visitation Is That of the

DUET hited Mdkiniiidacctntheacedsddbbedeosonnsacoesss 6

C. The Denial to a Child of a Right to Legal Redress

to Establish Visitation Has No Rational Basis . 7

IID cts conantiniddddiessnennctesédbabebthondseedandeede 10

Appendix A. Minute Order of Dismissal ... App. p. |

Appendix B. Opinion of the California Court of

NPT ail iishad Me abiindecascndesseesetasscibdessesonsseees 2

Appendix C. Order of the California Supreme Court 7

Appendix D. California Civil Code, Sections 7006 and

IIT Gi iae bnbaheranaheaiesewesadcisnunesastinssseoioesenst 8

iii

TABLE OF AUTHORITIES

Cases Page

Berberian v. Petit (RI) 374 A.2d 791, 86 A.L.R.3d 468

SET PE, ccngadetiibtewnssunegtindanspecpccccedecdpadansouqnsonss

Exley v. Exley, 101 Cal.App.2d 831, 226 P.2d 662

DUUIFED ‘hncosdddsensvonseesdbesecectggssqvecccospenaneseceenban

Fernald v. Fernald, 224 Pa.Super. 93, 302 A.2d 470

SEE cddibihindbacnvbbselinnedéneccesqeopenscagabhescasshics

Griffith v. Gibson, 73 Cal. App.3d 465, 142 Cal.Rptr.

sas

Stanley v. Illinois, 405 U.S. 645 (1971) ............ Be

Strong v. Owens, 91 Cal.App.2d 336, 205 P.2d 48

TEE ISS I eR: 2

Constitution

United States Constitution, Fourteenth Amendment i,

Statutes

California Civil Code, Sec. 4601 ..................... 2,

California Civil Code, Sec. 7006 ..................... 3,

California Civil Code, Sec. 7010 .................000 000

California Civil Code, Sec. 7JO10(c) ..................0005

United States Code, Title 28, Sec. 1257(3) .............

No. ....

IN THE

Supreme Court of the United States

October Term, 1981

KIMBERLY ANNE OLPIN, a minor, by her guardian ad litem,

VIRGINIA LOUDEN,

Petitioner,

vs.

OWEN C. OLPIN,

Respondent.

Petition for Writ of Certiorari

to the Supreme Court of the

State of California.

Petitioner respectfully prays that a writ of certiorari issue

to review the order of the Supreme Court of the State of

California entitled in this action on June 24, 1981, denying

hearing and review of the decision of the Court of Appeal

of the State of California for the Second Appellate District,

Division Four, filed April 30, 1981, affirming the judgment

of the Superior Court of the State of California for the

County of Los Angeles entered on July 31, 1979.

Opinions Below.

The Minute Order of July 31, 1979, of the Superior Court

of the State of California for the County of Los Angeles

dismissing the action upon demurrer is printed as Appendix

A. The opinion of the Court of Appeal of the State of

California, Second Appellate District, Division Four, af-

ce

firming the dismissal of the Los Angeles Superior Court is

printed as Appendix B. The order of the California Supreme

Court denying hearing is printed as Appendix C.

Official Report of the Opinion of the California Court

of Appeal in This Case:

Louden v. Olpin, App., 173 Cal.Rptr. 447 (1981).

Jurisdiction of United States Supreme Court.

(i) Date of Judgment and Time of Its Entry: Action Dis-

missed and dismissal entered by Superior Court (Court

of first instance) July 31, 1979.

Date of California Court of Appeal Affirmance of Dis-

missal: April 30, 1981.

(ii) Petition to California Court of Appeal for Rehearing

Denied on May 31, 1981.

(iii) Petition to California Supreme Court for Hearing de-

nied on June 24, 1981.

(iv) Statutory Provision giving Jurisdiction to U.S. Su-

preme Court: 28 U.S.C. 1257(3)

Constitutional and Statutory Provisions Involved.

(1) UNITED STATES CONSTITUTION, EQUAL

PROTECTION CLAUSE, 14TH AMENDMENT:

Section 1. . . . All citizens born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the

State wherein they reside. .. . nor shall any State

deprive any person of life, liberty, or property, without

due process of !aw; nor deny to any person within its

jurisdiction the equal protection of the laws.

(2) CALIFORNIA CIVIL CODE SECTION 4601:

**Reasonable visitation rights shall be awarded to a

parent unless it is shown that such visitation would be

detrimental to the best interests of the child.”’

iaidinee

(3) CALIFORNIA CIVIL CODE SECTIONS 7006 and

7010. The texts of those sections are printed as Appendix

D.

Statement of the Case.

Petitioner Kimberly Anne Olpin, age 5, sued for visitation

with her father in May, 1979; the suit was demurred to by

her father on the grounds that no child could sue a parent

seeking a hearing to prove her own best interests regarding

visitation with her father.

The demurrer was granted and Kimberly Anne Olpin’s

suit was dismissed on July 31, 1979.

The California Court of Appeal upheld the dismissal and

the California Supreme Court denied Kimberly Anne Ol-

pin’s Petition for a Hearing on June 24, 1981, leaving the

child without remedy for the wrong of emotional abandon-

ment of her by her father.’

The federal question of a state establishing laws, hearings

and procedures to protect a parent’s emotional need for his

inherent familial relationships with his child, while failing

to provide equally for laws, hearings and procedures to

protect the child’s emotional need for her inherent familial

relationships with her parent was raised by Petitioner child

in the Los Angeles County Superior Court (court of first

instance). [See Exhibit “‘A’’ (of Exhibits Lodged with

Clerk), a copy of the Clerk's Transcript, pages 37 and 38,

Response in Opposition to Demurrer].

The same federal question was again raised in the Cali-

fornia Court of Appeal. [See Exhibit *‘B’’, Petitioner’s

‘Petitioner's father, Owen C. Olpin, is a lawyer, member of the Bar

of the United States Court, and member of the bars of Utah

and California and Washington, D.C.

ww tie

Opening Brief, pages 20 to 21, and see Exhibit **C’’, Pe-

titioner’s Petition for Rehearing, pages 6 to 7}.

The federal question was raised in Petitioner's Petition

for Hearing to the California Supreme Court in June, 1981.

[See Exhibit *‘D’’, Petition for Hearing, pages 6 to 12).

The Los Angeles Superior Court did not give reasons for

its granting of the demurrer; the California Court of Appeal

was the only tribunal to issue a statement on the subject of

equal protection, to wit:

“It has not been inte:preted, either by the U.S.

Supreme Court or any other court, that the parents and

the children have the same rights.’’ [See Opinion in

Appendix B, page 5)

After the issuance of the Court of Appeal decision and

opinion on April 30, 1981, both the Court of Appeal and

the California Supreme Court respectively denied rehearing

and hearing.

This Petition for Writ of Certiorari was then filed.

—

ARGUMENT FOR ALLOWANCE OF WRIT.

The California opinion has decided an important question

of federal law in a way that conflicts with the United States

Constitution, and with the United States Supreme Court

decisions involving the equal protection clause, as it gives

no rational basis for the discrimination shown children in

California’s refusal to confer the same, or substantially the

same, benefits of law as conferred upon parents with regard

to visitation.

Parents have fought for and received ample protection for

the use of legal remedies to protect their emotional needs

for familial relationships and to protect their inherent right

to a parent/child relationship with their own child.

In some instances children have definitely benefited from

their parents’ legal remedies; however, there are many chil-

dren, including this petitioner, who have been emotionally

abandoned by at least one of their parents while still re-

ceiving financial support. In the State of California in 1980

over 20% of the newborn children were born to *‘unmar-

ried’’ parents according to California Public Health Dept.

Statistics; many of these children will receive financial sup-

port, but will be denied the emotional benefits of the parent/

child relationship. Benefits which are virtually guaranteed

to parents are denied to children by the California opinion

in this case.

Children have at least the same, if not greater, need as

adults have for legal remedies to protect their emotional

need for familial relationships and to protect their inherent

right to a parent/child relationship with their own parent.

A. Benefits Conferred Upon Adult Citizens of Cali-

fornia.

The protection granted parents in California is that of

(1) the right to sue and (2) the right to a hearing to prove

that the best interests of the ‘‘child’’ are consistent with the

parent’s wish for visitation with the child.

ro

These rights are based upon case law of Exley v. Exley,

101 Cal.App.2d 831 at 838, 226 P.2d 662 (1951) and stat-

utory law, California Civil Code 4601, in the case of di-

vorced parents, and upon the case law of Strong v. Owens,

91 Cal.App.2d 336, 205 P.2d 48 (1949) and Griffith v.

Gibson, 73 Cal.App.3d 465, 142 Cal.Rptr. 176 (1977) and

statutory law, California Civil Code 7006 and 7010(c) in

the case of children born to unmarried parents.

The instant case, Louden v. Olpin, App., 173 Cal.Rptr.

447 at page 449 (1981) clarified in case law what has been

occurring in fact in the Superior Courts of California — a

parent has a legal right to compel a child to visit with him.

See also case cited by California opinion, Fernald v.

Fernald, 224 Pa.Super. 93, 302 A.2d 470 (1973).

The California courts have found no difficulty with pro-

viding remedies to parents, not children, and to enforcing

a “‘duty”’ in a child to visit with his parent all in the ‘‘best”’

interests of the child, while at the same time, refusing to

provide legal remedies to a child for redress of her grievance

that her father has emotionally abandoned her.

B. Class Protected in Visitation Is That of the Family.

An examination of the ‘‘right’’ that is protected leads to

the definition of the ‘‘class’’ deserving of protection by

legal remedies. The ‘‘right’’ is an ‘‘inherent’’ right to

famiiia} relationships. Neither the emotional need for that

familial relationship, nor the inherent right, is restricted

only to adults or parents.

It is only too obvious that children need the familial

relationship protections more than the parents, yet one mem-

ber of the ‘‘family’’, i.e. the parent, has been given the

right to hearings and procedures which are designed, in

reality, to protect, not the best interests of the children, but

the parent’s emotional need for the child’s company, i.e.,

i,

the parent’s ‘‘inherent’’ right to a parent/child relationship

with his own child, but only when and if the parent wishes

it.

According to the California opinion, the goal of the pres-

ent California laws in visitation is solely *‘protection’’ of

the parent’s emotional needs and inherent right and if said

protection happens to coincide with the child’s needs, then

the child will benefit; if the parent wishes to emotionally

abandon a child, which may not coincide with the child’s

needs, there is no legal redress available for the child.

The parent/child relationship is an inherent, fundamental

right of the parent. As this Court stated in Stanley v. Illinois,

405 U.S. 645 at 651 (1971):

**The Court has frequently emphasized the importance

of the family. The rights to conceive and to raise one’s

children have been deemed ‘essential.’ Meyer v. Ne-

braska, 262 U.S. 390, 399 (1923), ‘basic civil rights

of man,’ Skinner v. Oklahoma, 316 U.S. 535, 541

(1942), and ‘[rjights far more precious . . . than prop-

erty rights,” May v. Anderson, 345 U.S. 528, 533

(1953).””

Since the ‘‘child”’ is half of that relationship, a fortiori,

the child’s rights to access to his parent is an inherent,

fundamental, essential right of the child, deserving of the

highest protections, including equal laws providing for re-

dress from emotional abandonment.

C. The Denial to a Child of a Right to Legal Redress

to Establish Visitation Has No Rational Basis.

The child is part of the ‘*‘class’’ of family, whose rela-

tionships have been accorded protections; there is no rational

basis to exclude children because of their age, from the right

to a hearing to prove their own best interests.

= oe

In the case of Berberian v. Petit, (RI) 374 A.2d 791, 86

A.L.R.3d 468 (1977), the Supreme Court of Rhode Island

discussed the classification by age as it relates to equal

protection of the law.

When an adult is given the right to a -iriver’s license, the

right protected is logically one that some children cannot

enjoy because their limitations in size, knowledge of the

world, judgment, ability to maneuver a car, etc. Most states,

however, logically give a child, age 16, the right to a driver’s

license upon a showing that he has reached an appropriate

age to be able to enjoy the right properly. Before that age,

there is a compelling state interest in protecting others from

danger upon which the age limit is based.

There is no logical, compelling state interest to refuse a

child a hearing and right to sue to determine her own best

interests re visitation with her father because she is a mere

**child’’.

The California Court of Appeal based its rationale on the

fact that no court has ever done it. (See Opinion in Appendix

B, page 5). Hardly a sufficient basis to deny redress.

Just as Illinois in Stanley v. Illinois, supra, made an

illogical assumption tht all unwed fathers are unfit fathers,

allowing no father the right to prove he is different, the

State courts of California have made a broad sweeping judg-

ment that allows no child the right to seek redress of her

grievance of emotional abandonment.

In the Illinois case, at least the father knew he was fighting

to prove he was fit; in the instant case, petitioner Kimberly

Anne Olpin only knows that she cannot sue her father and

seek redress of his emotional abandonment of her because

no child has ever done it before. Did the California court

simply make a broad, unproven assumption that no child

-_

could prove it would be in her best interests to have a father

ordered to visit with her, or did the court make a broad,

unproven assumption that Kimberly Anne Oplin was unfit

ind undeserving to have visitation with her prestigious

iather, member of O'Melveny & Meyers, member of the

bar of the U.S. Supreme Court because he was not married

to Kimberly’s mother at the time of Kimberly's birth and

visitation ordered between the two of them would be “‘dis-

tasteful.’’

Whatever the true rationale, not allowing any child the

opportunity to seek redress of her grievances and not al-

lowing a child the protections of hearings, laws and pro-

cedures re visitation, which are conferred upon adults, cre-

ated an arbitrary, unreasonable distinction between members

of the family.

This California opinion fails to accord substantially equal

and uniform treatment to all persons similarly situated.

Where members of a class are conferred benefits by the

State, all members of the class must be given the same

benefits.

All members of the immediate family (parent/child) must

have the same access to courts, hearings and enforcement

procedures with regard to a common emotional need as any

one member of the family is granted.

California has established laws, rights and procedures for

parents to enforce visitation within their family. California

must extend those laws, rights and procedures to children

in order to cease the emotional abandonment of children

and in order to grant protection to children’s familial rela-

tionships.

Kimberly Anne Olpin has a right to protect her emotional

needs for her inherent familial relationships in the same

_— =

manner that her father has available to him should he wish

to engage in same and the discretion of this Court must be

used to affirm Kimberly's right.

Conclusion.

It is only fitting that this august judicial body allow this

Writ, thereby using its discretion to assist every child in the

United States in furthering their right to petition for legal

redress of their grievance that a parent has emotionally

abandoned them, and to specifically assist petitioner Kim-

berly Anne Olpin, daughter of a member of the Bar of the

Supreme Court of the United States of America, in seeking

legal redress of her grievance against her father, Owen

Olpin, for his emotional abandonment of her.

Both equity and the equal protection ciause of the United

States Constitution give this child a right to a hearing to

prove her own best interests. Petitioner respectfully seeks

a Writ of Certiorari from the United States Supreme Court

to the California Supreme Court to review the decision of

the California Supreme Court and allow this child a hearing

in which she will prove that it is in her best interests for the

court to order visitation between she and her father.

Dated: September 22, 1981.

Respectfully submitted,

VIRGINIA M. LOUDEN,

Guardian Ad Litem on behalf of

Kimberly Anne Olpin, minor.

APPENDIX A.

Minute Order of Dismissal.

Superior Court of the State of California for the County

of Los Angeles.

Loudin, Virginia M. (sic), Petitioner vs. Olpin Warren

(sic), Defendant. Case Number D 996612 (Sealed by Order

of Court).

Filed: July 31, 1979.

Good cause appearing therefor, the above entitled action

is hereby dismissed under the provisions of Section 581.3

of the Code of Civil Procedure as to Defendant Olpin.

Dated: July 31, 1979.

/s/ Frances Rothschild

Judge

FRANCES ROTHSCHILD

ddl

APPENDIX B.

Opinion of the California Court of Appeal.

CERTIFIED FOR PUBLICATION.

In the Court of Appeal of the State of California, Second

Appellate District, Division Four.

Kimberly Anne Louden, Plaintiff and Appellant, v. Owen

C. Olpin, Defendant and Respondent. 2 Civ. No. 59401.

(Super. Ct. No. D-996,612).

Filed: April 30, 1981.

APPEAL from a judgment (order of dismissal and an

order) of the Superior Court, Los Angeles County. Francis

Rothschild and Marvin A. Freeman, Judges. Affirmed.

Virginia M. Louden, as Guardian ad Litem, in propria

persona, and James Griffin for Plaintiff and Appellant.

Jerome L. Goldberg, a Professional Corporation, Jerome

L. Goldberg and Lesley A. Andrus for Defendant and

Respondent.

Plaintiff appeals from a judgment (order of dismissal) and

from a subsequent order. We affirm the judgment and the

order.

Appellant, Kimberly Anne, by and through her mother

as guardian ad litem, brought this action alleging that

respondent (her father) has a duty to visit his child and has

failed to do so. Respondent is the adjudicated father of

appellant and has furnished monetary support to her since

a paternity action was completed. Appellant's mother and

father have never been married and appellant resides with

her mother.

au

In the present action, the court, on its own motion and

without notice, ordered the file in this action sealed.

The issues on appeal are whether a child can compel her

noncustodial parent to visit with her and whether the judge

lacked jurisdiction to designate the file confidential.

Appellant bases her argument that she can compel respon-

dent to visit her on California Civil Code section 7000, et

seq., (the Uniform Parentage Act). This act governs the

parent-child relationships and the rights and duties flowing

from the relationship including visitet‘on rights. Section

7006 provides for the establishment of the parent-child cus-

tody relationship and section 7010 provides that the judg-

ment may include **. . . any other provision directed against

the appropriate party to the proceeding, concerning the duty

of support, the custody and guardianship of the child, vis-

itation privileges with the child. . . ."" Nowhere in the Uni-

form Parentage Act does it state that the child has the right

to compel visitation privileges. The act has been interpreted

to mean that the father can seek and obtain visitation rights

with his child regardless of the marital status of the parents.

Appellant relies on Griffith v. Gibson (1977) 73 Cal. App.3d

465 in which the court stated (at p. 471): *‘We therefore

conclude the Uniform Parentage Act, section 7006 and

7010, in clear and unmistakable language, grants a right to

the father here to bring an action to establish the child-parent

relationship. . . .”’ Griffith involved an action in which the

father of a child born out of wedlock wished to have vis-

itation rights even though he was not a presumed father

under the Civil Code. The court held that the father may

have visitation rights regarding the child. The court stated

that it was a right of the father; nowhere did they state that

it was the right of the child. Appellant wishes us to extend

a os

that holding to include a reciprocal right on the part of the

child in that she may compel the noncustodial parent to

visit. This we decline to do. There is neither statutory nor

case law to support such a contention. Appellant relies on

Griffith v. Gibson, supra, and Civil Code section 7000 in

that the ‘‘child and parent relationship extend equally to”’

every child and to every parent regardless of the marital

status of the parent. While this is true, it is inapplicable

here. The court cannot compel a non-custodial parent on

dissolution of a marriage to care for and love and visit with

the child. The court can only compel the parent to provide

monetary support. The children are not being treated dif-

ferently based on the marital status of their parents; the court

simply lacks the authority to compel this sort of behavior.

In Salas v. Cortez (1979) 24 Cal.3d 22, a case which in-

volved whether counsel must be appointed for an indigent

defendant, the dissenting opinion stated (at p. 41): ‘*It seems

self-evident that the central issue in paternity suits is neither

the establishment nor maintenance of the family unit nor

the parent’s bond with the child. What is at stake is money.

.. . The state cannot, despite the majority's allusion to

‘moral’ obligations, order a man to act as a father; it can

only designate him as such. . . ."’ Respondent has been

designated as the father and he has duties and obligations

to fulfill, but the fact remains that the court cannot order

him to act as a father. While it is true that the state has a

public policy interest in wanting parents and children to be

together, it still remains that the court cannot order the

family to stay together. Appellant argues that compelling

the father to visit now will make him love the child and in

time his visits will become voluntary. This may or may not

occur, but in any event it is not up to the courts to make

such a decision.

me

California creates in a parent a right and privilege to visit

the child. This right is not, however, reciprocal. Appellant

has cited many cases from California and foreign jurisdic-

tions in which visitation has been compelled. Such com-

pulsion was made on behalf of a parent, not a child. The

noncustodial parent can compel a minor child to visit. This

does not apply to a child who has reached majority, even

if that child is still receiving support from the parent. See

Fernald v. Fernald, 302 A.2d 470 (Pa. Super. 1973).) No

case has been cited in which a parent has been ordered to

visit his child. Appellant urges us to create a reciprocal right

in children to order visitation and relies on Stanley vy. Illi-

nois, 405 U.S. 645 for that proposition. Stanley recognized

the constitutional rights in the unwed father to his natural

child. The court did not decide whether the right is reciprocal

in the child and such a conclusion does not naturally flow.

The Equal Protection clause of the U.S. Constitution, as

interpreted, provides that unwed fathers and wed fathers

must be treated equally. The same applies to children, re-

gardless of the marital status of their parents. It has not been

interpreted, either by the U.S. Supreme Court or any other

court, that the parents and the children have the same rights.

Appellant’s reliance on Jn re Gault (1967) 387 U.S. 1 [87

S. Ct. 1428] is misplaced. Jn re Gault concerned a criminal

defendant who was convicted without due process. This is

not the case before us. The child here does not have the

right to compel visitation by a parent; due process arguments

are inapplicable.

For the foregoing reasons the superior court was correct

in sustaining respondent’s demurrer for failure to state a

cause of action. We affirm that judgment.

Il

The issue remaining is whether the judge in the paternity

action lacked ‘urisdiction to order the file sealed. The judge

in the paternity action filed a declaration of prejudice and

_

another judge was designated to hear the case. Several

months later appellant filed her action to compel visitation.

At that time the judge who previously declared prejudice

in the paternity action ordered the file designated confiden-

tial. This action was not improper. The purpose of desig-

nating a file confidential is to protect the parties from the

outside world knowing about the proceedings. This purpose

was accomplished and it is irrelevant that he was previously

disqualified for prejudice. Appellant has not been prejudiced

by such action; she has been protected. Civil Code section

7014 provides in pertinent part: **. . . All papers and rec-

ords, other than the final judgment, pertaining to the action

or proceeding, whether part of the permanent record of the

court or of a file in any public agency or elsewhere, are

subject to inspection only in exceptional cases upon an order

of the court for good cause shown."’ the whole purpose of

this section is to protect the child and this purpose has been

accomplished. There has been no showing of prejudice to-

ward appellant in the entering of this order.

The order designating the file confidential is affirmed.

The judgment and order appealed from are affirmed.

CERTIFIED FOR PUBLICATION.

KINGSLEY, Acting P.J.

We concur:

WOODS, J.

EARLY, J.*

* Assigned by the Chief Justice of California.

oe,

APPENDIX C.

Order of the California Supreme Court.

Clerk’s Office, Supreme Court, 4250 State Building, San

Francisco, California 94102.

June 24, 1981.

I have this day Filed Order HEARING DENIED.

In re 2/Civ. 59401, Kimberly Anne Olpin vs. Owen Olpin,

Respectfully,

Clerk

ow

APPENDIX D.

California Civil Code

Sections 7006 and 7010.

$7006. Who May Bring Action

(a) A child, the child’s natural mother, or a man pre-

sumed to be his father under paragraph (1), (2), or (3) of

subdivision (a) of Section 7004, may bring an action as

follows:

(1) At any time for the purpose of declaring the existence

of the father and child relationship presumed under para-

graph (1), (2), or (3) of subdivision (a) of Section 7004.

(2) For the purpose of declaring the nonexistence of the

father and child relationship presumed under paragraph (1),

(2), or (3) of subdivision (a) of Section 7004 only if the

action is brought within a reasonable time after obtaining

knowledge of relevant facts. After the presumption has been

rebutted, paternity of the child by another man may be

determined in the same action, if he has been made a party.

(b) Any interested party may bring an action at any time

for the purpose of determining the existence or nonexistence

of the father and child relationship presumed under para-

graph (4) of subdivision (a) of Section 7004.

(c) An action to determine the existence of the father and

child relationship with respect to a child who has no pre-

sumed father under Section 7004 or whose presumed father

is deceased may be brought by the child or personal rep-

resentative of the child, the State Department of Social

Services, the mother or the personal representative or a

parent of the mother if the mother has died or is a minor,

a man alleged or alleging himself to be the father, or the

personal representative or a parent of the alleged father if

the alleged father has died or is a minor.

oe ee

(d) Regardless of its terms, an agreement between an

alleged or presumed father and the mother or child does not

bar an action under this section.

(e) An action under this section may be brought before

the birth of the child.

(f) The district attorney may also bring an action under

this section in any case in which he believes that the interests

of justice will be served thereby.

(1975 ch. 1244, 1978 ch. 429, oper. July 1, 1978)

$7010. Court Order Final — New Birth Certificate

(a) The judgment or order of the court determining the

existence or nonexistence of the parent and child relationship

is determinative for all purposes except for actions brought

pursuant to Section 270 of the Penal Code.

(b) If the judgment or order of the court is at variance

with the child’s birth certificate, the court shall order that

a new birth certificate be issued as prescribed in Article 6

(commencing with Section 10450) of Chapter 8, of Division

9 of the Health and Safety Code.

(c) The judgment or order may contain any other pro-

vision directed against the appropriate party to the pro-

ceeding, concerning the duty of support, the custody and

guardianship of the child, visitation privileges with the

child, the furnishing of bond or other security for the pay-

ment of the judgment, or any other matter in the best interest

of the child. The judgment or order may direct the father

to pay the reasonable expenses of the mother’s pregnancy

and confinement.

(d) In determining the amount to be paid by a parent for

support of the child and the period during which the duty

of support is owed, a court enforcing the obligation of sup-

port shall consider all relevant facts.

(1975 ch. 1244)

uolisoddo

Dffice - Supreme Court, U.S. }

FILED

ocT 26 Wei

No. 81-628

Supreme Court of the United States

October Term, 1981

KIMBERLY ANNE OLPIN, a minor, by her guardian ad litem,

VIRGINIA LOUDEN,

Petitioner,

vs.

OweN C. OLPIN,

Respondent.

ANSWER TO PETITION FOR WRIT OF CERTIO-

RARI TO THE SUPREME COURT OF THE

STATE OF CALIFORNIA.

?

JEROME L. GOLDBERG,

A Professional Law Corporation,

615 South Flower Street,

Nineteenth Floor,

Los Angeles, Calif. 90017,

213/623-7224,

Attorneys for Respondent,

Owen C. Olpin.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

TABLE OF CONTENTS

Page

Question Presented for Review .....................0eee08: I

ST dctuinchcdd: giebadtadsbeseusoteesvensedtubesth sdalee 2

IIIT siti itncceciihintencetscaunssbidinebeaniphineetiant 4

TABLE OF AUTHORITIES

Cases

Bings v. San Francisco, 41 Cal.2d 608 (1953) ......... 3

Emery v. Emery, 45 Cal.2d 421 (1955) ................. 3

Fernald v. Fernald, 224 Pa.Super. 93, 302 A.2d 470

DIE - cadinbdntsdninvdiinthohuasssodses sepeneoudesseedsasenee 3

Louden v. Olpin, 118 Cal.App.3d 565 (1981) ......... 3

Odell v. Lutz, 78 Cal.App.2d 104 (1947) ............... 3

Constitution

United States Constitution, Fourteenth Amendment ... |

Statutes

California Civil Code, Sec. 4601 .................00.

California Civil Code, Sec. 7010 ..................ceeeees 2

No. 81-628

IN THE

Supreme Court of the United States

October Term, 1981

KIMBERLY ANNE OLPIN, a minor, by her guardian ad litem,

VIRGINIA LOUDEN,

Petitioner,

Ay

OweN C. OLPIN,

Respondent.

ANSWER TO PETITION FOR WRIT OF CERTIO-

RARI TO THE SUPREME COURT OF THE

STATE OF CALIFORNIA.

Question Presented for Review.

Does the Fourteenth Amendment give a child the right

to force her parent to visit with the child, against the parent's

will?

ulinn

ARGUMENT.

This case does not present any basis for granting a writ

of certiorari. The decision of the California Court of Appeal

is not in conflict with any other state or federal decision,

nor does this case present any substantial question of federal

law which need be decided by this Court.

This case was initiated by Petitioner in conjunction with

a separate paternity action. In that action Respondent was

adjudged to be Petitioner's father, and child support was

awarded. Respondent has been complying in all respects

with his financial obligations, and this petition does not

involve any question of Respondent's monetary obligations

or his performance of those obligations. The only issue

involved here is whether, in addition to financial support,

the child’s mother can force the father (a married man with

his own family of four children) to visit the child.

In hopes of eliciting this Court's interest, Petitioner at-

tempts to make an equal protection argument. She contends

that a parent has a legal right to visit a child, and therefore

(although not specifically stated) a child must have an equiv-

alent right to force a parent to visit and force a parent to

satisfy his or her emotional needs.

In fashioning this argument Petitioner relies on a statute

(California Civil Code §7010) which permits the non-

custodial parent to visit with a child; but the crucial point

here is that there is nothing in this statute, in any other

statute or in any judicial decision, which forces an unwilling

parent to visit a child.

There is no statutory authority for Petitioner's assertion

that a parent has an absolute right to visit a child. In fact,

in California a parent may be denied the right to visit his

child if there is a showing that visitation would be detri-

mental to the best interests of the child [California Civil

a

Code §4601]. Moreover, it should be noted that this right

ceases when the child reaches majority. Even if the child

is still receiving support from the parent, a parent does not

have the right to compel an unwilling child over 18 to visit

his parent. [see Fernald v. Fernald, 224 Pa.Super. 93, 302

A.2d 470 (1973), cited by Petitioner]. If an adult child

cannot be forced to visit a parent, there is no legal or con-

stitutional basis for forcing an adult parent to visit his child.

Even if one took Petitioner's assertion as true, that is,

assuming a parent has an absolute right to visit his child,

the equal protection clause would not necessarily give the

child a corresponding right. As the California Court of Ap-

peal noted:

**It has not been interpreted, either by the United States

Supreme Court or any other court, that the parents and

the children have the same rights.’’ Louden v. Olpin,

118 Cal.App.3d 565, 569 (1981) [Emphasis by the

court. |

Indeed, the parent-child relationship creates, and sensibly

so, a right in the parent which by its nature cannot be

reciprocal — that is, the right to custody. This is a right of

the custodial parent [see Odell v. Lutz, 78 Cal.App.2d 104,

106 (1947)] embracing the right to make decisions regarding

the control, education and health of the child [Bings v. San

Francisco, 41 Cal.2d 608, 617 (1953)] and the duty to rear

and discipline the child [Emery v. Emery, 45 Cal.2d 421,

429-430 (1955)]. A non-custodial parent's right to visit his

child is intended to provide him with an opportunity for

continuing this involvement in directing the child's devel-

opment.

A parent’s common law right of custody and control

cannot be converted into a minor child's right of custody

and control of a parent. The notion of compelling an un-

willing parent to visit with the child is wholly foreign to

— wn

our legal system. Such an order would be an intolerable

infringement of the father’s personal liberty and an unwar-

ranted interference in his own family life. In addition, such

an order would put the courts in the morass of attempting

to regulate the quality of the time the parent spends with

the child.

Thus, it is entirely reasonable for the California courts

to conclude in the circumstances of this case that an adult

parent cannot be forced against his will to visit a child.

Conclusion.

For the foregoing reasons, the petition for certiorari

should be denied.

Respectfully submitted,

JEROME L. GOLDBERG,

A Professional Law Corporation,

Attorneys for Respondent,

Owen C. Olpin.