Amicus Curiae Brief — Michael H. v. Gerald D.

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5 o No. 87-746

| ill IRIE eo

IN THE

Supreme Court of the United States

OcTOBER TERM. 1987

MICHAEL H. and VICTORIA D.,

Appellants,

GERALD D.,

Appe llee

ON APPEAL FROM THE

COURT OF APPEAL OF THE

STATE OF CALIFORNIA

MOTION FOR LEAVE TO FILE BRIEF AMICI

CURIAE AND BRIEF AMICI CURIAE OF

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

AND ACLU FOUNDATION OF SOUTHERN

CALIFORNIA IN SUPPORT OF APPELLANTS

JOHN A. POWELL PAUL HOFFMAN

HELEN HERSHKOFF (Counsel of Record)

STEVEN R. SHAPIRO STEPHANIE ROSS

ISABELLE KATZ PINZLER JOAN HOWARTH

American Civil Liberties GARY WILLIAMS

Union Foundation PATRICIA ERICKSON

132 W. 43rd Street ACLU Foundation of

New York, NY 10036 Southern California

(212) 944-9800 633 So. Shatto Place

Los Angeles, CA 90005

(213) 487-1720

Attorneys for Amici Curiae

Lawyers Brief Service Legal Publishers (213) 383-4457 (714) 720-1510

MOTION OF THE AMERICAN CIVIL LIBERTIES

FOUNDATION AND ACLU FOUNDATION OF SOUTHERN

CALIFORNIA FOR LEAVE TO FILE A BRIEF

AMICI CURIAE IN SUPPORT OF APPELLANT

The American Civil Liberties Union

Foundation and the ACLU Foundation of

Southern California respectfully move

for leave to file the attached brief

Amici Curiae in support of Appellants

Michael H. and Victoria D.

The American Civil Liberties Union

(ACLU) is a nationwide, non-partisan

organization of over 250,000 members,

dedicated to the protection of the

fundamental rights of the people of the

United States. The ACLU of Southern

California (ACLU/SC) is one of the

affiliates of the ACLU with approximately

25,000 members in the Southern California

area. The ACLU/SC filed an amicus curiae

brief in this case in support of

appellants before the California Court

of Appeal.

This case raises important issues

involving the state's power to regulate

complex relationships between parents--

biological or otherwise--and children

consistent with the constitutional

guarantees of due process and equal

protection. The ACLU has long been

involved in litigation and other

activities concerning these issues.

Amici believe that the State of

California has transgressed the

constitutional limits on its authority by

severing the relationship of an unwed

biological father and his daughter,

without affording any opportunity to

assert or defend the strength of the

parental or filial interests involved.

In doing so, through Evidence Code § 621,

in the circumstances of this case, the

State has denied appellants due process

and equal protection of law. This brief

addresses the due process concerns raised

by the State’s determination to sever the

parent-child relationship pursuant to

Evidence Code §621.

Appellants have consented to the

filing of this brief amici curiae.

However, the Appellee has declined to

grant consent.

DATED: May 5, 1988

Respectfully submitted,

»VALY

PAUL L. mu

JOHN A. POWELL PAUL HOFFMAN

HELEN HERSHKOFF (Counsel of Record)

STEVEN R. SHAPIRO STEPHANIE ROSS

ISABELLE KATZ PINZLER JOAN HOWARTH

American Civil GARY WILLIAMS

Liberties Union PATRICIA ERICKSON

Foundation ACLU Foundation of

132 W. 43rd Street Southern California

New York, NY 10036 633 So. Shatto Pl.

(212) 944-9800 Los Angeles, CA

90005

(213) 487-1720

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT

The Application of Evidence

Code Section 621 To Terminate

Completely Any Ongoing

Relationship Between Appellants

Michael and Victoria Denied

Appellants Due Process of Law

A. Appellants Have A

Fundamental Right To

Maintain Their Parent-

Child Relationship

B. The Asserted Interests

Supporting the Conclusive

Presumption in Evidence

Code Section 621 Are

Insufficient To Justify

The Termination of

Appellants' Parent-Child

Relationship —

Page

CONCLUSION

APPENDIX

The Irrebuttable

Presumption in § 621

Cannot Be Sustained As A

Constitutional ly

Appropriate Means of

Effectuating Any State

Interest In The

“Integrity of the

Matrimonial Family"

TABLE OF AUTHORITIES

Page(s)

Citations

Bell v. Burson

402 U.S. 539 (1971) ae a ae ee ae ee ee ee”

Cleveland Board of Education v. LaFleur

VUES) £0, are Pea ee |

Franz v. United States

707 F.2a 582 (D.C. Cir. 1983) . . 20, 33

In the Matter of Baby M

FM-25314-86E (April 6, 1988), at3. . 4

Lehr v. Robertson

463 U.S. 248 (1983) ..... . +. passim

Levy v. Louisiana

JF @ 22 eee eee |

Meyer v. Nebraska

262 U.S. 390 (1923) — «6 2 © 6 2-6 & ee

Michelle W. v. Ronald W.

39 Cal.3dG@ 354 (1986) . «. «© «© © © © «© « Of

Palmore v. Sidoti

466 U.S. 429 (1984) > eetsese#8 « « af

OQuilloin v. Walcott

434 U.S. 246 (1978) o Ade ABDe 229 23, SY

Roberts v. U.S. Jaycees

468 U.S. 609 (1984) oe oe a ae a ee

Rotary International v.

Rotary Club of Duarte

107 S.Ct. 1940 (1987) SS «4% 3 ee

Santosky v. Kramer

455 U.S. 745 (1982) © © © «© « £4, 419, 34

Stanley v. Illinois

405 U.S. 645 (1972). ....... passim

Turner v. Department of Employment Sec.

423 U.S. 44 (1975) ......4.4.4. 2. 34

U.S. Department of Agriculture Vv. Murry

413 U.S. 508 (1973) ....... 31, 32

Usery v. Turner Elkhorn Mining Co.

Som UB. 2 (A076) 2 wc ee ew ew ee 92

Vlandis v. Kline

412 U.S. 441 (1973) 'e#teéersrtw®wis « 6 2

Weinberger v. Salfi

422 U.S. 749 ?) oy | aa She Dae 3S

Statutes

California Civil Code § 4601. . o « 4, §

Evidence Code § 621 ....... passim

Miscellaneous

Tribe, American Constitutional Law

(2d ed., 1988) at 1618-25 'e@eeerse BF

vii

STATEMENT OF THE CASE

Amici adopt the facts as set forth

at pages 11 to 13 of the Appellants'

Jurisdictional Statement. ? Certain key

facts are highlighted below.

There is significant evidence in the

record that appellant Michael H. is the

biological father of appellant Victoria

D. This evidence includes the resuits of

a blood test showing a 98.07 percent

probability that Michael is Victoria's

biological father and statements” from

Carole D., the biological mother, that

Michael is the biological father.

Moreover, Victoria and Michael had

developed a warm, nurturing parent-child

l This case was resolved below in

the context of summary judgment. The

facts, therefore, should be viewed in the

light most favorable to appellants.

Thus, it must be assumed that Michael

would be able to prove that he is the

biological father of Victoria at trial.

relationship before the trial court's

order severed their relationship. For a

period of three months in 1982 and a

period of nine months in 1983 and 1984,

Michael, Carole and Victoria lived

together as a family during Carole's

estrangement from her husband, Gerald D.

The =o Victoria thus spent nearly one

year pf the first three years of her life

in on explicit child-parent relationship

with ,Michael. Victoria regarded Michael

as —— father and received from him

parental support and affection. An

expert's report confirmed that Michael

and Victoria established a parent-child

relationship during this important

formative period. Jurisdictional

Statement ("Jur. St.*), at 13, n.2.

Michael maintained a Close bond with

his daughter even after Carole returned

to Gerald in the Spring of 1984.

Initially, the parties agreed to maintain

this relationship between Michael and

Victoria through a three-year

unsupervised visitation by Michael with

his daughter that commenced in November

1984. This agreement was entered as an

order of the court. Through her

guardian, Victoria was a party to the

agreement which recognized the sustaining

nature of Michael's relationship with

her. An October 1984 expert's report

found that Michael was "the single adult

in Victoria D.'s life most committed to

caring for her needs on a long term

basiee.+,* (Jur. St., at 13, n.2), and

that continuing the parental relationship

between Michael and Victoria was in the

child's best interests. The record in no

way suggests that continuation of such

unsupervised visitation would unduly

upset the marital family in which

Victoria now resides. 2

Nevertheless, on January 28, 1985,

the trial court dismissed Michael's

Petition for Declaration of Paternity and

the Guardian Ad Litem's Declaration of a

Parent-Child Relationship based upon the

conclusive presumption in California

Evidence Code § 621° which operated to

vest parental rights in Gerald to the

complete exclusion of Michael. The

effect of the trial court's Order was

not only to prevent Michael from

establishing paternity but also to

preclude visitation under California

2 As a state court judge noted in

the highly publicized Baby mM case,

"Melissa is a resilient child who is no

less capable than thousands of children

Of broken marriages who Successfully

adjust to complex family relationships

when their parents remarry." In the

Matter of Baby M, FM-25314-86EF (April 6,

1988), at 3.

3 Evidence Code §621 is set forth in

full in the Appendix to this brief.

Civil Code § 4601. Michael and Victoria

were thus barred from continuing a

parent-child relationship -- considered

important to Victoria and in the child's

best interest -- even under terms which

did not unduly interfere with the current

relationship between Carole and her

husband.

This decision was affirmed by the

California Court of Appeal on the ground

that the state's interest in the

sanctity of the family outweighed any

4 california Civil Code § 4601

provides:

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. In the discretion of

the COeouUrts reasonable

visitation rights may be

granted to any person having an

interest in the welfare of the

child.

rights Michael or Victoria had in these

circumstances. The California Supreme

Court declined to review this decision.

Significantly, Michael does not seek

to remove Victoria from her home with

Gerald and Carole. Nor does he seek to

displace Gerald as a father to Victoria.

What Michael has sought is the right to

continue a relationship with Victoria

through court awarded visitation rights

and to provide support for her needs.

Victoria, through her guardian, seeks the

same relief.

SUMMARY OF ARGUMENT

This case involves the right of an

unwed father to continue a loving,

Supportive relationship with a child who

was born during the marriage and

cohabitation of the mother to another

man. Subsequent to the child's birth,

Michael lived with his daughter Victoria

and her mother Carole as a family unit.

During that period, Michael provided

support for Victoria, gave her love and

attention, and acquired a psychologically

and emotionally significant place in her

life. In equal measure, Victoria

provided Michael with meaning and

happiness. She treated him as a father

and benefited from his nurture and care.

The child's mother subsequently returned

to her husband. Even after the non-

marital family dissolved, Michael

maintained a warm, mutually-supportive

relationship with his daughter. Through

unsupervised visitation -- approved by

all parties and entered as an order of

the court -- Michael assumed the role of

non-custodial parent. Subsequently,

Michael sought to formalize his

relationship with his daughter and sought

an adjudication of paternity and rights

of visitation.

Without considering the strength of

the parent-filial relationship or the

child's best interests, California

Evidence Code § 621 Simply extinguished

the natural father's parental rights and

barred him from anv continuing

relationship with his daughter. The

statute provided Michael no opportunity

to demonstrate the depth of his parental

commitment to Victoria. Nor did the

statute allow the child's interest in

visitation or support to be meaningfully

heard.

This Court has long recognized that

the "relationship between parent and

child," Quilloin v. Wolcott, 434 U.S.

246, 255 (1978), is an “intrinsic human

right," Smith v. Organization of Foster

Families for Equality and Reform, 431

U.S. 816, 845 (1977), and therefore

"constitutionally protected." Quilloin

Ws Wolcott, 434 U.S. at 255.

Accordingly, where an unwed father has

demonstrated parental commitment to his

child, only "powerful countervailing

interests" on the part of the State may

justify interference with the fundamental

parental rights that have developed over

time. Stanley v. Illinois, 405 U.S. 645,

651 (1972).

Certainly no powerful countervailing

interest is present in this case. To he

sure, the State may have a legitimate

interest, as asserted here, in the

“integrity of the matrimonial family."

Jur. St., at Bl6. However important this

interest may be in the abstract, it

cannot in the circumstances of this case

justify the wholesale termination of the

loving and supportive relationship that

exists between Victoria and her natural

father Michael. The California courts

were able to conclude otherwise only by

ignoring the powerful parent-filial

interests at stake and by giving no

weight whatever to the best interests of

the child.

This Court has shown far greater

respect to the rights of an unwed father

and his child where the pair have

developed over time a loving and

Supportive parent-filial relationship.

see Stanley v. Illinois, 405 U.S. at

645. So fundamental is the parent-child

relation that this Court has subjected

countervailing state interests and the

Statutory schemes that advance those

interests to greater scrutiny than mere

rationality. See Caban v. Mohammed, 441

U.S. 380 (1979). Such scrutiny is

particularly appropriate where, as here,

the challenged statute does not even

achieve the purported state goal. Here,

while claiming to promote the child's

welfare within the marital family, § 621

fails to provide the child with a stable

familial environment. To the contrary,

the challenged statute instead permits

the marital father to avoid his support

obligations by disclaiming paternity,

thus leaving the child in uncertainty.

By contrast, the natural, non-custodial

father is denied any opportunity to

provide love and financial support to his

child.

The challenged statute underscores

the vices of irrebuttable presumptions

when used to resolve sensitive issues

implicating fundamental rights such as

the parent-child relationship. Evidence

Code § 621 makes no attempt to balance

the competing constitutional interests at

stake, thereby ignoring the best

interests of the child in favor of a

theoretical model of the nuclear marital

family.>° Where fundamental rights are at

stake, this Court has strongly disfavored

the use of irrebuttable presumptions. As

a matter of due process, the application

of Evidence Code § 621 to terminate the

Significant parent-child relationship

that exists between Michael and Victoria

cannot stand.

° This case does not involve a

Situation in which no father is willing

to support a child. Here both fathers

offer support to Victoria. The validity

of a conclusive presumption of paternity

in a husband where it was the only means

of guaranteeing support for the child

might be sustained as serving a

compelling state interest. However, this

Statute offers the husband a way of

opting out of this responsibility while

excluding biological fathers who wish to

Support their children.

ARGUMENT

a. The Application of Evidence Code

Section 621 To Terminate Completely

Any Ongoing Relationship Between

Appellants Michael and Victoria

Denied Appellants Due _ Process _ of

Law

A. Appellants Have A Fundamental

Right To Maintain Their

Parent-Child Relationship

This Court's decisions have

recognized that the parent-child

relationship -- even in a non-traditional

context -- implicates fundamental

interests worthy of special protection

from state interference. Stanley Vv.

Illinois, 405 U.S. 645 (1972) (rights of

unwed father not to be deprived of his

children after death of mother). See

also Lehr v. Robertson, 463 U.S. 248

(1983); Caban v. Mohammed, 441 U.S. 380

(1979); Quilloin v. Walcott, 434 U.S.

246 (1978).

In Stanley, this Court struck down

as violative of due process an Illinois

statute that deprived an unwed father of

custody of his biological ¢éhildren by

defining the term "parent" to include

only the mother of a child born out-of-

wedlock. This Court described the

fundamental interests at stake in the

following terms:

The private interest here,

that of a man in the children

he has sired and raised,

undeniably warrants deference

and, absent a powerful

countervailing interest,

protection. It is plain that

the interest of a parent in the

companionship, care, custody,

and management of his or her

children come[s]}] to this Court

with a momentum for respect

lacking when appeal is made to

liberties which derive merely

from Shifting economic

arrangements.

405 U.S at 651 (citations omitted). See

eel

also Meyer v,. Nebraska, 262 U.S. 390, 399

(1923); Santosky v. Kramer, 455 U.S. 745,

757 (1982) ("Freedom of choice in matters

of family life is a fundamental liberty

interest.") Thus, as this Court recently

confirmed in an analogous context,

Family relationships, by their

nature, involve deep

attachments and commitments to

the necessarily few other

individuals with whom one

shares not only 4 special

community of thoughts,

experiences, and beliefs but

also distinctively personal

aspects of one's life.

Roberts v. U.S. Jaycees, 468 U.S. 609,

619-20 (1984).

Outside the marital context,

however, “parental rights do not spring

full-blown from the biological connection

between parent and child," Lehr Vv.

Robertson, 463 U.S. at 260, quoting

Caban v. Mohammed, 441 U.S. at 397, but

rather require demonstration of the "full

commitment to the responsibilities of

parenthood." Lehr, 463 U.S. at 261. see

also Quilloin v. Walcott, 434 U.S. at

256. In determining the strength of an

asserted constitutional liberty interest

to be protected in the non-marital

context, this Court has' therefore

focused on whether the biological parent

has developed a substantial relationship

with the child. Thus, a _ biological

father who lacks any significant

custodial, personal or financial

relationship with his child cannot

belatedly claim a right to establish such

a relationship years after the

Childbirth. Lehr v. Robertson, 463 U.S.

at 262,

Here, Michael is not only the

natural father of Victoria but also has

contributed to her well-being and

growth. Both as a custodial and non-

custodial parent, Michael has shown love

and affection for his daughter; he has

participated in decisions affecting her

development and welfare; and he has

contributed financially to her support.

Victoria, in turn, has come to regard

Michael as a father she loves, a person

whose continued affection and attention

are essential to her growth and

stability. Appellants' interest in

continuing this critical relationship is

thus based on biological connection as

well as affective bonds that have

developed over time. Appellants assert a

right to continue to play an important

role in each other's life: They are

connected through biology, emotion and

mutual support.

As this Court underscored in Lehr v.

Robertson:

When an unwed father

demonstrates full commitment to

the responsibilities of

parenthood by "com[ing] forward

to participate in the rearing

of his child," his interest in

personal contact with his child

requires substantial protection

under the Due Process Clause.

At that point it may be said

that he "“act[{s] as a father

toward his children."

463 U.S. at 261 (citation omitted).

Here, Michael's nurturing activities

during the important, early years of

Victoria's life, combined with his

readiness to provide financial Support,

demonstrate a "full commitment to the

responsibilities of parenthood" that this

Court has found critical in according

constitutional protection to the parent-

child relationship. That this

relationship occurs outside the

traditional marital context does not

extinguish the liberty interests at

stake. To the contrary, this Court's

decisions recognize the fundamental

right of a child to Maintain a

relationship with his or her natural

father in situations departing from the

traditional nuclear model. As the Court

observed in Stanley:

Nor has the law refused to

recognize those family

relationships unlegitimized by

a marriage ceremony. The Court

has declared unconstitutional a

state statute denying natural,

but illegitimate, children a

wrongful death action for the

death of their mother,

emphasizing that such children

cannot be denied the right of

other children because familial

bounds in such cases were often

as warm, enduring, and

important as those arising

within a more formally

organized family unit.

405 U.S. at 651-52, citing Levy Vv.

Louisiana, 391 U.S. 68 (1968). See also,

Santosky v. Kramer, 455 U.S. at 754 n. 7

("The fact that important liberty

interests of the child ... may also be

affected..."); Rotary International v.

Rotary Club of Duarte, 107 S.Ct. 1940,

1946 (1987) ("We have not held that

constitutional protection is restricted

to relationships among family

members..."). Similarly, this Court has

recognized that an unwed father who

engages in regular visitation with a

biological child "may have a relationship

with his children fully comparable to

that of the mother." Caban v. Mohammed,

441 U.S. at 389.

In Franz v. United States, 707 F.2d

982 (D.C. Cir. 1983), the court of

Appeals stressed the reciprocal and

mutually reinforcing interests of a non-

custodial parent and his children in

continuing a parent-child relationship

after this relationship was terminated by

virtue of the federal witness protection

program. The Franz Court's description

of these interests is especially

pertinent to this case:

-a2 parent's right to the

Preservation of his

relationship with his child

derives from the fact that the

parent's achievement of a rich

and rewarding life is likely to

depend significantly on his

ability to participate in the

rearing of his offspring. a

child's corresponding right to

protection from interference in

the relationship derives from

the psychic importance to him

in being raised by a loving,

responsible, reliable adult.

x * &

Moreover, there is considerable

evidence that the emotional

Stability of children of

divorced parents is often tied

to the quality of their

continuing relationships with

their non-custodial parent. On

this point, in short, it

appears impossible to say with

any confidence that the

concerns that underlie our

willingness to accord

"fundamental" status to parent-

child bonds are any less

telling when the relationship

in question consists of mere

"visitation."

|H4

d. at 599, 60l. This general

observation in Franz is affirmed in this

case by the expert's opinion that

Victoria's interests would be best served

by continuing her relationship with

Michael through regular visitation. Jur.

St., at 13 n.2.

These principles confirm that

appellants' interests in Sustaining their

arent-child relationshi are

fundamenta] anc thus come before the

Court with the me "momentum for

respect" in Stanley and

Caban. r Quilloin, where

the bioloc -atners made little, if

any, effort t rter emotional or

financial support to their children,

Michael has consistently provided

Victoria with sustenance and care.

Where the father had only an "inchoate

relationship with a child whom he has

never suppported and rarely seen," Lehr,

463 U.S. at 249, this Court found no

constitutional bar to allowing adoption

of the children by men who evidenced

Willingness to accept parental

responsibility.

In Quilloin the biological father

visited the child on "many occasions" and

provided gifts "from time to time" but

provided support only on an irregular

basis. 434 U.S. at 251. Significantly,

the trial court in Quilloin made a

finding after a hearing that the proposed

adoption and severance of the biological

father's legitimation and visitation

rights was in the child's best interests.

Id.

The record here, by contrast, shows

an intensity and commitment in the

relationship between Michael and

Victoria, recognized by a court appointed

expert: Michael was found to be "the

single adult in Victoria's life most

committed to caring for her needs on a

long-term basis...” Jur.

St., at 13,

SF Michael has held himself out to

Victoria as a father and has provided and

offered his daughter financial support

for the rest of her life. They have

developed a caring relationship over time

with all the attributes of parent-child

love. The trial court's automatic

application of Evidence Code § 621 has

thwarted Michael's prodigious efforts to

maintain this relationship with a

daughter who loves him and needs his

attention and care.

Not surprisingly, Victoria, through

her guardian, seeks to maintain her

relationship with Michael. This is not a

merely theoretical claim founded on

economic need. Victoria's guardian has

asserted this position based on the

expert's finding that it is in

Victoria's best interests to maintain the

affective bond she has developed with her

biological father. This recommendation

is based on the observation of Victoria's

actual interactions with Michael--

interactions which provide “warmth and

comfort" to both of them. Jur. St., at

13, m8.

Genuine, loving bonds between

parents and children are precisely the

kind of relationship to which this Court

has accorded the highest level of

protection. The bond between Michael and

Victoria is especially deserving of their

protection.

B. The Asserted Interests

Supporting the Conclusive

Presumption in Evidence Code

Section 621 Are Insufficient To

Justify The Termination of

Appellants’ Parent-Child

Relationship

In this case Evidence Code § 621 was

found by the California courts to require

the termination of any continuing

relationship between Michael and

Victoria.© The lower courts found that

the state interest in preserving the

family unit of Gerald, Carole and

Victoria outweighed the interests of

appellants in continuing their

relationship, even through visitation

rights alone.

The California Court of Appeal

acknowledged that Michael's interests in

these circumstances were "substantial,"

Jur. te» at B15, and that he had

established an "affectional relationship

with Victoria almost since her birth."

Jur. St.,:' at B16. Nevertheless, the

Court of Appeal determined that "the

state's interest in preserving the

integrity of the matrimonial family is so

621 was found to apply based on evidence

adduced by Gerald and Carole that they

were cohabiting at the time of Victoria's

conception and birth and that Gerald was

not impotent or sterile. See § 621l(a).

significant that it outweighs most other

interests." Id. at B16. Moreover, the

court held that Michael's "private

interest in establishing 4a biological

relationship in a court of law is

overridden by the substantial state

interests in familial stability and the

welfare of the child." citing Michelle

W. v. Ronald W., 39 Cal.3d 354, 216

Cal.Rptr. 748 (1986). Id. at Bl?7. Any

interests Victoria had in continuing her

relationship with Michael were found to

be overridden by this same state

interest. Id. at B17-18./7

7 The Court of Appeal also found

that the state interest in protecting

Victoria from being branded as

"illegitimate" also supports the statute.

Id. at B18. In light of this Court's

decisions in this area this argument

cannot sustain the infringement of

appellants’ substantial interests. Lev

vy. Louisiana, supra; see also, Palmore Vv.

Sidoti, 466 U.S. 429, 433 (1984)

("Private biases may be outside the reach

of the law, but the law cannot, directly

The state may indeed have a

legitimate interest in protecting

families that conform to the traditional

nuclear model. Stanley, 405 U.S. at 652.

This interest, however, would not bar a

biological father from visiting a child

after divorce has dissolved a marital

unit. A biological father in the non-

marital context has a similar

constitutionally-protected right to

maintain a relationship with his child.

This fundamental liberty interest cannot

be overridden by the state's mere

assertion that children are best

protected within the Sanctity of

marriage. Indeed, Evidence Code § 621

does not even promote that state goal.

To the contrary, by permiting the marital

father to escape his Support obligation

or indirectly, give them effect.")

by disclaiming paternity within two years

of the birth of the child, the statute

gives no assurance that the mother's

marriage will create a permanent and

stable environment for the child. At the

same time, a biological father who wishes

to love and support his child, while

respecting the mother's marital union, is

prevented from doing so unless the

mother joins in the motion under §

621(da).

The state's interest in giving an

absolute and exclusive preference for the

"matrimonial family" is also compromised

where, as here, the statute works to the

detriment of the child. The effect of §

621 is to deprive Victoria of an

important, sustaining relationship with

Michael -- a relationship regarded by

her guardian to be in the child's best

interests. This Court has repeatedly

protected the best interests of the

child, whether the decision has been in

favor of the biological parent -- as in

Stanley and Caban -- or against the

biological parent -- as in Lehr and

Quilloin. In this case, by con*rast, the

California courts simply ignored the best

interests of the child -- indeed § 621

does not even permit the child, through a

guardian, to adjudicate paternity, demand

Support, or claim rights of visitation.

Absent from the decision below is any

indication that Victoria sought to

continue her relationship with Michael,

through visitation, even without an

« ,udication of paternity under § 621.

Victoria's claim for continued visitatio:.

under this provision was clearly before

the California courts yet was ignored

altogether in the proceedings below.

Cc. The Irrebuttable Presumption in

§ 621 Cannot Be Sustained As A

Constitutionally Appropriate

Means of Effectuating Any State

Interest In The "Tntegrity of

the Matrimonial Family"

Even if the state's interest in the

"integrity of the matrimonial family"

may in certain circumstances overcome 4a

natural father's claim to a continued

parent-child relationship, the use of an

irrebuttable presumption to further this

interest is constitutionally defective.

Cleveland Board of Education v. LaFleur,

——

414 U.S. 632, 639, 643-647 (1979);

Weinberger Vv. Salfi, 422 U.S. 749 (1975);

U.S. Department of Agriculture v. Murry,

413 U.S. £178 (1973); Vlandis v. Kline,

412 U.S. 442, 446-453 (1973); Stanley v.

Illinois, 405 U.S. at 649-658; Bell v.

Burson, 402 U.S. 539 (1971).

This case is a perfect illustration

of the vices of irrebuttable

presumptions. see cenerally, Tribe,

American Constitutional Law (2d ed.,

1988) at 1618-25. Though the protection

of the traditional family unit is an

important state interest, the weight to

be accorded to this interest in any given

situation varies with the strength of the

countervailing individual interests. The

conclusive presumption in § 621 avoids

these mandatory constitutional balances

by giving an absolute preference to

parents ina family unit sanctified by a

marriage contract.

The individual interests affected in

these circumstances, however, are too

fundamental to be resolved by conclusive

presumption. U.8. Department of

Agriculture v. Murry, 413 U.S. at 518-

19 (Marshall, . concurring) (The

Constitution sometimes "requires the

Government to act on an individualized

basis, with general propositions serving

only as rebuttable presumptions or other

burden-shifting devices").

In considering the constitutionality

of irrebuttable ;resumptions, this Court

has recognized a clear distinction

between statutes "regulating purely

economic matters," Usery V- Turner

Elkhorn Mining Co., 428 U.S. 1 (1976),

and those affecting interests which enjoy

"constitutionally protected status."

Weinberger v. Salfi 422 U.S. 749, Via

(1975). Where fundamental interests are

at stake, the use of conclusive

presumptions continues to be

constitutionally suspect. See Franz

United States, 707 F.2d at 606 n.102

("The Court has made clear however, that

(the irrebuttable presumpticn] doctrine

remains viable when fundamental rights

are at stake").

In Turner Vv. Department of

Employment Sec., 423 U.S. 44 (1975) (per

curiam), the Court struck down a

provision of Utah law which makes

pregnant women ineligible for employment

benefits for a period extending from 12

weeks hefore the expected date of

childbirth until a date six weeks after

childbirth. The statute's "incorporation

of a conclusive presumption of incapacity

during so long a period before and after

childbirth is constitutionally

invalid...." Id. at 46.

Evidence Code § 621, as applied,

creates an irrebuttable presumption

against an unwed father in an area that

Clearly implicates the constitutionally

protected right of "freedom of personal

choice in matters of family life,"

Santosky, 455 U.S. at 753. It is, of

course, easier for the state to make

paternity determinations by means of a

conclusive presumption. ® As this Court

emphasized, however, in Stanley v.

Illinois, supra:

Procedure by presumption is

always cheaper and easier than

individualized determination.

But when, as here, the

procedure forecloses the

determinative issues of

competence and care, when it

explicitly disdains present

realities, it needlessly risks

running roughshod over the

important interests of both

parent and child. It therefore

cannot stand.

405 U.S. at 656. See also Vlandis Vv.

Kline, 412 U.S. 441, 451 (1979).

This Court has upheld irrebuttable

presumptions in commercial contexts, see

Weinberger v. Salfi, 422 U.S. at 749

(1975). It has not done so, however,

8 Evidence Code § 621 allows the

mother and her husband an individualized

opportunity to adjudicate vaternity,

while denying the biological father and

child a comparable opportunity.

where the irrebuttable presumption

curtailed “important liberties cognizable

under the Constitution." Id. at 785.

The liberties asserted by Michael and

Victoria in this case are precisely the

kind of fundamental rights which this

Court has found too important to be

curtailed by irrebuttable presumptions.

The state lacks any basis for assuming

that in all cases the best interests of a

child will be served by barring contact

with a biological father with whom a warm

and loving relationship has already been

established. Appellants should be free

to convince the trial court that Michael

has demonstrated commitment to parental

responsibilities on behalf of Victoria,

and that it is in Victoria's best

interests to maintain a parental

relationship with the biological father

whom she loves.

CONCLUSION

For the above-stated reasons,

California Evidence Code § 621 should be

found unconstitutional as applied in the

circumstances of this case. Appellants

should be permitted to maintain their

parent-child relationship on such terms

as the trial court determines are in

Victoria's best interests.

DATED: May 5, 1988

Respectfully submitted,

JOHN A. POWELL

HELEN HERSHKOFF

STEVEN R. SHAPIRO

PAUL HOFFMAN

(Counsel of Record)

STEPHANIE ROSS

ISABELLE KATZ PINZLER JOAN HOWARTH

American Civil

Liberties Union

Foundation

132 W. 43rd Street

New York, NY 10036

(212) 944-9800

GARY WILLIAMS

PATRICIA ERICKSON

ACLU Foundation of

Southern California

633 So. Shatto Pl.

Los Angeles, CA

—

APPENDIX

California Evidence Code § 521

provides:

(a)

(b)

(d)

Except as provided in

subdivision (b), the issue of a

wife cohabitating with her

husband, who is not impotent or

sterile, is conclusively

presumed to be child of the

marriage.

Notwithstanding the provisions

of subdivision (a), if the

court finds that the

conclusions of all the experts,

as disclosed by the evidence

based upon blood tests

performed pursuant to Chapter

2 (commencing with Section 890)

of Division 7 are that the

husband is not the father of

the child, the question of

paternity of the husband shall

be resolved accordingly.

The notice of motion for blood

tests under subdivision (b) may

be raised by the husband not

later than two years from the

child's date of birth.

The notice of motion for blood

tests under subdivision (b) may

be raised by the mother of the

child not later than two years

from the child's date of birth

if the child's biological

father has filed an affidavit

A- i]

with the court acknowledging

paternity of the child.

The provisions of subdivision

(b) shall not apply to any case

coming within the provisions of

Section 7005 of the Civil Code

or to any case in which the

wife, with the consent of the

husband, conceived by means of

a surgical procedure.

The notice of motion for the

blood tests pursuant to

subdivision (b) shall be

supported by a declaration

under oath submitted by the

moving party stating the

factual basis for placing the

issue of paternity before the

court. This requirement shall

not apply to any case pending

before the court on September

30, 1980.

The provisions of subdivision

(b) shall not apply to any case

which has reached final

judgment of paternity on

September 30, 1980.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.