Petition for Writ of Certiorari — P. B. C. v. D. H.

Supreme Court brief1986

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Text

B5-1188 ) [memes |

& 1988

No. JAN age |

SPAN

Caer CLERK

In the “gl nee:

Supreme Court of the Huited States

OctroBEerR TERM, 1986

P.B.C.,

PETITIONER,

D.H.,

RESPONDENT.

PETITION FOR 4. WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF MASSACHUSETTS

MATTHEW H. FEINBERG*

SEGAL, Moran & FEINBERG

210 Commercial Street

Boston, MA 02109

MuriEL CARPENTER

EspaILe, Barrett & EspAILE

75 Federal Street

Boston, MA 02110

MICHAEL J. BRoOoks

SEGAL, MoraAN & FEINBERG

210 Commercial Street

Boston, MA 02109

* Attorney of Record

Blanchard Press, Inc., Boston, Mass. — Law Printers [617] 426-6690

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* ~ 7 J

QUESTIONS PRESENTED

1. Has Massachusetts, by denying a natural father the right

to establish his paternity, created an impermissible gender-

based classification which violates the Equal Protection

Clause?

2. Does the Massachusetts rule which bars a natural father

from the right to establish his paternity deprive him of due

process and present this Court with a substantial federal ques-

tion of first impression?

3. Have the States which have considered this issue

misunderstood the requirements of due process analysis as

explicated by Board of Regents v. Roth?

PARTIES BELOW

The parties below are P.B.C.,! the plaintiff-petitioner, and

D.H., the defendant-respondent. The trial court appointed a

guardian ad litem for N.H., the child involved in this matter.

' The parties and related individuals in this matter will be referred to by

initials in order to provide for confidentiality.

ill

TABLE OF CONTENTS

Page

re eee I

I cig arte eter kT ss Ache weadle Il

en Sas bined bb ew de hc Reale as Ill

RR AE A eR V

ee A ag Geka Cada Rees V

Constitutional and Statutory Provisions............... VI

ee a es Sk CA hK wes snes anes ]

ey ia us GW kAWaA eas beecae deans l

Constitutional Provision Involved.................... 2

SES, a er 2

ed kak oak kK Ca OCR we 4

Reasons for Granting the Writ....................... 7

I. This Case Presents Important and Novel Ques-

tions Regarding the Fundamental Constitu-

tional Rights of a Father and His Son to

Establish and Nurture a Parent-Child Relation-

A. Massachusetts’ Denial of the Right of a

Natural Father to Establish His Paternity

Deprives Him of Due Process and Presents

a Substantial Federal Question of First

ET ate ee 6 oN sn xb aN a ae a

B. The Holding in This Case Demonstrates

That Massachusetts and Every Other State

Considering the Claim Have Misunder-

stood the Requirements of Due Process

Analysis as Explicated by Board of

gt EEG a 12

II. By Denying a Natural Father The Right To

Establish His Paternity, Massachusetts Has

Created An Impermissible Gender-Based

Classification That Violates The Equal Protec-

ee gee ae 17

Page

| ee ee rere ree eee ee ee ore ey 24

Appendix:

A. Opinion Below of the Supreme Judicial Court of

IIR Kn cack kan eet ca creole cas A-l

Memorandum and Order of the Appeals Court of

Massachusetts Single Justice Regarding Respon-

dent’s Appeal of Order Denying Her Motion to

RE Ae cers IPM sgt ae A cee A-9

. Trial Court's Memorandum and Order Regarding

Petitioner's Motion for Custody, Visitation, and

Sanctions and Respondent’s Motion to Dismiss... . A-17

. Petitioner's Complaint and Affidavit for Establish-

TE Se A era ae ee A-22

. Petitioner's Motion for Blood Grouping Test and

Trial Court's Ruling Thereon.................. A-27

Petitioner's Appeal of Denial of Motion for Blood

SE UN eee sons wana een eres tas oe A-32

. Order of the Appeals Court of Massachusetts Single

Justice Regarding Petitioner’s Appeal of Denial of

Motion for Blood Grouping Tests............... A-34

. Order of the Appeals Court of Massachusetts

Dismissing Respondent's Appeal of the Single

Ie re ee ne Pere eee be A-37

Judgment and Memorandum of the Supreme

Judicial Court of Massachusetts Single Justice

Regarding Respondent’s Appeal of Order of the

PD Sees woes Can ck cee es A-39

Petitioner's Motion for Order of Blood Grouping

Tests and Trial Court’s Ruling Thereon..........: A-40

. Petitioner's Motion for Custody, Visitation and

EE ERE Pee Leah Maltese Aida rar A-4]

. Petitioner's Motion For Order of Blood Grouping

PIRSA Senet cee oma tr dgt CARMAN IA Hel niall A-43

Petitioner's Motion For Custody, Visitation and

IIE os 5-4. Cac 0a bk wee ee A-45

TABLE OF AUTHORITIES

Cases:

Page

Av. X, Yand Z, 641 P.2d 1222 (Wyo. 1982)........ 14, 20

Annett v. Kennedy, 416 U.S. 134 (1974). ... 2.2... 66... 13

Armstrong v. Manzo, 380 U.S. 545, 552 (1962)......... 8

Baby v. Misiano, 373 Mass. 265 (1977). .... 2.6... 6.606: 17

Boddie v. Connecticut, 401 U.S. 371 (1971)... ......... 12

Board of Regents v. Roth, 408 U.S. 564 (1972)....... 8, 12,

13, 15, 16

Caban v. Mohammed, 441 U.S. 380 (1979)....... 8, 11, 18

Cafereria Workers v. McElroy, 367 U.S. 886 (1961).... 14,

15, 16

Carrington v. Rash, 380 U.S. 890 (1969)............... 23

Cleveland Board of Education v. Lafleur, 414 U.S. 632

cee EEE Sere eke = Rae eater eer 23

Craig v. Boren, 429 U.S. 190, 197 (1976).............. 18

Fuentes v. Shevin, 407 U.S. 67 (1972). ................ 16

Goldberg v. Kelly, 397 U.S. 254 (1970)... ............. 15

Goss v. Lopez, 419 U.S. 565 (1975)... 6... eee eee 12

Howell v. Kowalski, 380 Mass. 663 (1980)............. 17

Ingraham v. Wright, 430 U.S. 651, 672 (1977)....... 8, 12

In re Lisa R., 13 Cal. 3d 125, 636 (1975) cert. denied, 421

U.S. 1014, rehg. den., 423 U.S. 885 (1975). ...... 13, 14

In re Trisha M., 74 Cal. App. 3d 125, 141 Cal. Rptr. 554

(OORT) 0 sok cvn kv evenntaaeuke scan aanees ease 10

Kusper v. Pontikes, 414 U.S. 51 (1973)... ............. 23

Lehr v. Robertson, 463 U.S. at 257 (1982) 8,9, 10, 11, 16, 18

Mathews v. Eldridge, 424 U.S. 319, 333 (1976)......... 8

May v. Anderson, 345 U.S. 528 (1953)................ 14

Meacham v. Fano, 427 U.S. 215 (1976)............... 12

Meyer v. Nebraska, 262 U.S. 390 (1923)............... 8

Michelle W. v. Ronald W., 703 P.2d 88 (Cal. Sup. Ct.,

ONO. ca eho be Raines 4A CON EO Eee 14, 22

Morrissey v. Brewer, 408 U.S. 471 (1972).............. 12

P.B.C. v. D.H., 396 Mass. 68 (1983)........ 14, 17, 19, 23

Palmer v. Thompson, 403 U.S. 217 (1971)... 2.0.0.2... 22

Page

Palmore v. Sidoti, —— U.S. __, 104 §.Ct. 1879, 80 L.Ed.

CLL A cas Se wek wa a ke hee eau eed oa oe

Petitoner F. v. Respondent R., 430 A.2d 1075 (Del. Sup.

TING Gag $4 5 OU a AK REE RENEE TRA RESON 14

Phillips v. Allen, 2 Allen 453, 454 (1861)... 0. ......0... 19

Quilloin v. Walcott, 434 U.S. 246 (1978)... 2.0 ....... 8, 18

a A |; | re 18

R.M.G. and C.W. v. J.W. and W.W., 615 P.2d 666

I Os GUE? 5 c's cde aa Nand aa baa ab ewe ss 13

Santosky v. Kramer, 455 U.S. 745 (1982)... 0.0.0.0... 8

Shapiro v. Thompson, 394 U.S. 618 (1969)... 2.2.20... 23

Skinner v. Oklahoma, 316 U.S. 535 (1942)... 2.00.0... 14

Smith v. Organization of Foster Families, 431 U.S. 816,

ROSA RF ES IS 8, 9, 10, 12

Stanley v. Illinois, 405 U.S. 645 (1972)... 7, 8, 14, 15, 18, 19

Symonds v. Symonds, 385 Mass. 540 (1982)......... 17, 20

United States v. Brown, 381 U.S. 437 (1965)... 2.2... .. 23

United States v. Yazell, 382 U.S. 341 (1966)... 2... 2... 16

United States Department of Agriculture v. Murry, 413

SEC EN sc Lave RD UAA CU ORTSE haha oa ee eeaNG 23

Vincent B. v. Jean R., 126 Cal. App. 3d 619 (Cal. App.

gp reer eek Pe eeu rae ae ee 14

Wisconsin v. Yoder, 406 U.S. 205 (1972)... 2.2.0.0... 10

Constitutional and Statutory Provisions:

United States Constitution:

IN BN oo 6a bios kat beet Rhee eae 2

Massachusetts General Laws:

OM OR cr bee 19

OBER Oe oS. tina Cenk cane heed cabs eb eae 3

Gt eee Lexca dase Seow eae aes 2

pate 418 oo a ea eee 17

In the

Supreme Court of the United States

Ocroser Term, 1986

No.

P.B.C.,,

PETITIONER,

D.H.,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF MASSACHUSETTS

Opinion Below

The opinion of the Massachusetts Supreme Judicial Court is

reported at 396 Mass. 68 (1985) and appears in the Appendix

hereto at A-1.

Jurisdiction

The Order of the Massachusetts Supreme Judicial Court was

entered on October 10, 1985. This petition was filed on or

before January 8, 1986. This Court's jurisdiction is invoked

under 28 U.S.C.A. §1257 (3) (West 1966).

Constitutional Provision Involved

United States Constitution, Amendment 14, Section 1:

“ __No State shall. . .deprive any person of life, liberty,

or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.”

Statement of the Case

Petitioner is the natural father of a son born to a woman

who was legally married to another man at the time of the

child’s conception. This action originated in the Massachusetts

Probate Court where petitioner soug:” to establish that he was

the father of the minor child conceived when the mother was

in the process of divorcing her husband and separated from

him. Petitioner sought visitation rights and a recognition of

legal custody once paternity was established.

Petitioner's detailed, verified complaint, filed on September

6. 1983, set forth the basis for his paternity claim and des-

cribed his relationship with the infant child. (App. A-22).

Petitioner also asked the court to order blood tests so that he

could prove his paternity claim by reliable scientific evidence.

(App. A-32). After a hearing on September 27, 1983, the court

denied petitioner's request on October 13, 1983 and, after

rehearing, again denied the request on November 7, 1983.

(App. A-35).

Pursuant to applicable Massachusetts procedures,' peti-

tioner then petitioned a single justice of the Massachusetts Ap-

peals Court for relief from the denial of the blood test motion.

(App. A-34). On January 3, 1984, Chief Justice Greaney, sit-

ting as a single justice, reversed and ordered that the trial

court allow the blood test motion. Chief Justice Greaney

! Massachusetts General Laws (hereafter “M.G.L.”) c.231, §118.

stated that he “[did]} not see any impermissible intrusion on the

defendant's constitutional rights by the conduct of the test,”

but that he did perceive “a potentially serious constitutional

problem if the tests [were] not allowed, viz: the deprivation to

the petitioner of the most probative, available evidence for

maintenance of a significant claim.” (App. A-37).

There followed an appeal of the blood test order by the

mother. On May 2, 1984, the Appeals Court dismissed the ap-

peal for lack of jurisdiction. (App. A-39).

The mother then petitioned the Supreme Judicial Court for

relief from the blood test order pursuant to that Court's

general powers of superintendence of lower courts. See

M.G.L. ¢.211, §3.

After a hearing on June 7, 1984 a single justice of the

Supreme Judicial Court (Wilkins, J.) declined to exercise the

jurisdiction of that Court, and the blood test order remained

in effect. (App. A-40).

On June 19, 1984, the trial court allowed the father’s mo-

tion for blood tests as mandated by the appellate courts and

ordered that they be done on the next day. (App. A-44). The

mother, however, ignored the trial court's order and failed to

appear with the child at the blood testing laboratory.

There followed various motions by petitioner seeking relief

from the mother’s refusal to comply with the trial court's blood

test order. He asked for temporary visitation and the appoint-

ment of a guardian ad litem for the child to assist in the court's

later determination of the extent of visitation which would be

in the child's best interests (App. A-45).

On January 2, 1985, the mother moved to dismiss

petitioner's complaint for faiiure to state a claim and for lack

of standing. The trial court denied the mother’s motion to

dismiss. Additionally, it ordered that sanctions be imposed on

the mother if she continued to disobey the blood test order of

June 19th. (App. A-17).

Thereafter, the mother petitioned the single justice of the

Appeals Court for relief from the denial of her motion to

dismiss. The single justice certified the denial of the motion to

dismiss to a panel of the Appeals Court prior to trial. He

reasoned that the child might be protected from any harm

which might flow from an adjudication of paternity if the

court first decided whether or not the petitioner had standing

(App. A-9).

Upon certification to the Appeals Court panel, the Supreme

Judicial Court ordered direct appellate review on its own in-

itiative, thus bypassing the Appeals Court. On October 10,

1985, the Supreme Judicial Court ruled that the petitioner had

no constututional or common law right to have his claim of

paternity adjudicated. It held that on the facts of the case, the

child was conclusively and irrebuttably presumed to be the

issue of the mother’s marriage even though she was separated

from her husband when the child was conceived and divorced

when the child was born. While the Court opined that this

presumption would be rebuttable by the mother or her hus-

band, it held that the natural father had no standing to rebut

the presumption whatsoever. (App. A-1).

Statement of Facts

The petitioner seeks to adjudicate his paternity and, after a

court hearing to determine whether it is in the child’s best in-

terests to do so, to resume his relationship with his son.

The petitioner and the mother met in August 1979. They

became friends without sexual intimacy at a time when the

mother was already experiencing marital difficulties. In May,

1980, the mother separated from her husband. She filed a

complaint for divorce from the husband in March of 1981.

Sometime after her divorce compiaint was filed, the petitioner

and the mother commenced a sexual relationship. That rela-

tionship continued during the time the child was conceived.

(App. A-22). In October, 1981, the mother’s physician con-

firmed that she was pregnant.

On December 8, 1981, the mother, knowing that she was

pregnant, appeared in court where a divorce nisi was

granted.* The divorce became final on June 9, 1982. (App.

A-28). On June 10, 1982, the mother gave birth. She listed her

former husband as the father on the child’s birth certificate.

Beginning in July, 1982, when the child was but a few

weeks old, the mother began }: inging the infant for visits to

the petitioner's home. (Apy A-28). In August, 1982, the

mother told petitioner that he was the child’s father. She also

requested child support. (App. A-29). Thereafter, and at the

mother’s suggestion, petitioner and mother jointly attended

psychotherapy sessions with a social worker of mutual ac-

quaintance. During these meetings, the mother reaffirmed the

petitioner's paternity referring in the presence of the social

worker to a specific occasion in September of 1981, which both

the petitioner and mother remembered, when she became

pregnant. During these meetings, the petitioner acknowledg-

ed his paternity and stated his desire to act as the father and to

be publicly acknowledged as the child’s father. (App. A-29).

Visits between the mother, child and petitioner continued.

In January, 1983, the mother asked the petitioner to pay child

support of $100.00 per week and expressed her desire to move

to a better location with the child. The petitioner agreed to

purchase a house for the mother and to pay $400.00 per month

toward the mortgage and taxes. In the early months of 1983,

the petitioner and the mother began house hunting. The

mother located a house she found suitable in Lexington, a

suburb of Boston, and the petitioner purchased it. (App.

A-30).

In June, 1983, the mother and child moved into the Lex-

ington house. On the day she moved in, the petitioner took

care of the infant child. (App. A-30).

* Under Massachusetts’ procedure, this is the only divorce hearing. A

divorce nisi enters upon the court’s determination of sufficient grounds. A

waiting period follows, and a decree of divorce absolute or final divorce

decree automatically enters six months thereafter.

The petitioner continued to visit his child at the house in

Lexington. Frequently, he would drop by to feed the baby,

change him, bathe him, and play with him. (App. A-24). Peti-

tioner also took his son to his home. He purchased a crib and

high chair for his son and the child stayed overnight on several

occasions. (App. A-30). The child recognized the petitioner

and appeared happy to see him (App. A-2+4).

In September, 1983, when the child was one year and three

months old, the mother moved out of the house in Lexington,

taking the child with her. (App. A-25). She also severed all

contact between petitioner and his child.

When she told the petitioner of her decision to move, peti-

tioner asked the mother to confirm his paternity through blood

tests and to let him continue to visit with the child. She

refused. (App. A-30). Petitioner immediately filed suit in

order to regain access to his child (App. A-35). Shortly after

the petitioner filed his complaint, the mother remarried her

former husband (App. A-17).

The petitioner’s son is now three years and six months old.

Although there has been no finding that petitioner is unfit to

see his child or that the child’s best interests would not be

served by his having a relationship with his natural father, the

petitioner has been barred from seeing his child for more than

two years.

Reasons for Granting the Writ

I. Tuis Case Presents IMportaNT AND Novet QveESTIONS

REGARDING THE FUNDAMENTAL CONSTITUTIONAL RIGHTS

Or A FATHER AND His Son To EstaBuisH AND Nurture A

PARENT-CHILD RELATIONSHIP.

A. Massachusetts’ Denial of the Right of a Natural Father

to Establish His Paternity Deprives Him of Due Pro-

cess and Presents a Substantial Federal Question of

First Impression.

Massachusetts, by this case, has created a conclusive

presumption preventing a natural father from asserting his

paternity in any case where the mother was married at the

time of conception. The rule applies regardless of the par-

ticular circumstances. The fact that a mother may have been

legally separated for many years though still married, or that

subsequent to conception, the mother divorces, is rendered ir-

relevant. More important for this case, the rule applies in spite

of the relationship which has developed between the natural

father and child and no matter what obligations the natural

father has already assumed. Under Massachusetts law, a man

who supports, lives with, loves, and nurtures his acknowledg-

ed child during the child’s formative years cannot establish his

paternity even after the mother’s death if the mother, though

separated, was legally married to another at the time of con-

ception.®

In the absence of constitutional recognition, an interest such

as fatherhood which is not acknowledged by the State nor the

mother cannot exist. Petitioner’s right to be a father is depen-

dent on his ability to assert his fatherhood.‘ Given the Mass-

* Compare Stanley v. Illinois, 405 U.S. 645 (1972).

* The right to adjudicate paternity is a necessary predicate for ensuring the

rights, obligations and responsibilities attendant on fatherhood once pater-

nity is established.

achusetts rule, petitioner must look to constitutional vindica-

tion. The jurisdiction of the individual states to terminate the

relationship of parents and their natural children is broad but

not unbridled. This court has traditionally intervened when

the extinction of parental rights contravenes the dictates of the

Due Process Clause of the Federal Constitution. “The fun-

damental liberty interest of natural parents in the care,

custody and management of their child” is constitutionally

protected. Santosky v. Kramer, 456 U.S. 745 (1982). See Lehr

v. Robertson, 463 U.S. 248 (1982); Smith v. Organization of

Foster Families, 431 U.S. 816 (1977).

The threshold inquiry here is whether the nature of peti-

tioner’s liberty interests are found within the ambit of the

Fourteenth Amendment’s protection. Board of Regents v.

Roth, 408 U.S. 564, 570-571 (1972).° If his interests are so pro-

tected then due process requires that he be accorded the right

to be heard “at a meaningful time and in a meaningful man-

ner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976), quoting

Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

Petitioner's claims present a substantial federal question

regarding the reach of the protection provided by the Due Pro-

cess Clause. This Court has recognized the constitutionally

protected right of a natural father to establish and maintain a

parental relationship with his child. Lehr v. Robertson, supra;

Santosky v. Kramer, 455 U.S. 745 (1982); Caban v. Moham-

med, 441 U.S. 380 (1979): Quilloin v. Walcott, 434 U.S. 246

(1978); Stanley v. Illinois, 405 U.S. 645 (1972); See alsc Meyer

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

The fact that the parents in Stanley, Quilloin, Caban and

Lehr. as here, were not married, did not preclude recognition of

the protected interest. Though this Court has acknowledged

"5 See also Smith v. Organization of Foster Families, 431 U.S. 816, 839-842

(1977); Ingraham v. Wright, 430 U.S. 651, 672 (1977); Lehr, Id., at 270

(White, J., dissenting).

® Though the form of process provided in Quilloin and Lehr was con-

sidered adequate, there was no question that a recognized protectable in-

terest was at issue.

the “considerable difficulty” of defining the concept of

“family” for purposes of the Due Process Clause, “the usual

understanding of ‘family’ implies biological relationships, and

most decisions treating the relation between parent and child

have stressed this element.” Smith v. Organization of Foster

Families, Id at 842-3. “The intangible fibres that connect

parent and child. ..are sufficiently vital to merit constitu-

tional protection in appropriate cases.” Lehr, Id., at 256. In

short, “[t]he nature of the interest at stake here is the interest

that a natural parent has in his. . .child, one that has long

been recognized and accorded constitutional protection.”

Lehr, Id., at 270 (White, J., dissenting).

In Lehr v. Robertson, the Court considered the adequacy of

New York’s pre-adoption notice requirements afforded an

unwed father who had not developed a relationship with his

daughter. In finding New York’s procedure adequate, the

Court had the opportunity to examine more closely the nature

of parenthood and to define precisely when constitutional pro-

tection attaches to that status. There, the Court, quoting

Justice Stewart in Caban, stated that “[p]arental rights do not

spring full-blown from the biological connection between

parent and child. They require relationships more enduring.”

Lehr, Id., at 260, quoting Caban, Id., at 397. Rather, the

Court required both natural parentage and a showing of com-

mitment to the parent/child relationship. Only where the

natural father has come forward to participate in the rearing

of the child are his rights entitled to protection by the Four-

teenth Amendment:

“When an unwed father demonstrates a full commit-

ment to the responsibilities of parenthood by ‘(comling]

forward to participate in the rearing of his child,)’ Caban.

441 U.S. 380 at 392, 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.’ But the mere existence of a

biological link does not merit equivalent constitutional

protection. The actions of judges neither create nor sever

genetic bonds. ‘[T]he importance of the familial relation-

ship, to the individuals involved and to the society, stems

from the emotional attachments that derive from the inti-

macy of daily association, and from the role it plays in

‘promot[ing] a way of life’ through the instruction of

children. . .as well as from the fact of blood relationship.’

Smith v. Organization of Foster Families for Equality

and Reform, 431 U.S. 816, 844 (1977) (quoting Wisconsin

v. Yoder, 406 U.S. 205, 231-233 (1972)).

“The significance of the biological connection is that it

offers the natural fether an opportunity that no other

male possesses to develop a relationship with his off-

spring. 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 interest lie.” Lehr v.

Robertson, Id., at 261-262.

The heart of the due process holding in Lehr was that New

York had adequately protected the unwed father’s opportunity

to form a relationship with his child. The Court declined to

decide whether New York’s procedures were adequate where

they would result in the termination of a developed relation-

ship. Id., at 262.” Lehr indicates that where an unwed father

7 Some states have gone to creative extremes to enhance this opportunity

rather than foreclose it. In In re Trisha M., 74 Cal. App. 3d 125, 141 Cal.

Rptr. 554 (1977), the putative father had been prevented from raising the

presumption of paternity in himself through the mother’s actions. The

California Court of Appeals went to the extent of granting custody prior to

determining any issue of parentage so that he could complete the conduct

necessary to establish himself as the presumed father under the California

Uniform Parentage Act. 141 Cal. Rptr. at 560. In In re Trisha M., the

necessary conduct was receiving the child into his home and holding her out

as his own child.

has demonstrated “‘a full commitment to the responsibilities of

parenthood by coming forward to participate in the raising of

his child,” he has earned “substantial protection under the

Due Process Clause”. The Court’s reasoning in Lehr applies

here. Since Massachusetts has foreclosed the natural, par-

ticipating father from asserting any rights, this Court should

carefully scrutinize the State’s infringement of his relationship

with his son.

Indeed, petitioner’s situation is more justly deserving of pro-

tection than that described in Lehr. It is beyond dispute that

he made the “full commitment” contemplated by Caban and

Lehr, taking every available opportunity to support, love and

relate to his son. (App. A-29-30). He visited with the child fre-

quently and regularly. (App. A-30). He supported both his son

and the mother by purchasing a home for them to live in and

contributed monthly to its upkeep. (App. A-29). Petitioner im-

mediately sought an acknowledgement of his paternity from

the mother and now seeks acknowledgement from the courts

so that he may continue to assume all the obligations, responsi-

bilities and functions of fatherhood. He thus presents a picture

far removed from the apparent indifference of the father in

Lehr who, having established no relationship with his child,

took no advantage of the opportunity the State provided and

thereby lost the protection he might otherwise have had. °®

Moreover, unlike any case this court has considered invol-

ving the constitutional protections afforded unwed fathers,

Massachusetts endorses the extinction of parental rights with-

out a hearing of any sort. Unlike formal adoption procedures

or other proceedings to terminate parental rights, all of which

presuppose some form of hearing, Massachusetts has barred

the petitioner from participating in the raising of his child

* He also distinguishes himself from a stranger to the marriage who cannot

support his claim with a sworn statement supported by substantial evidence

of a sexual relationship with mother at a time when mother was separated

and later substantial involvement with the child.

without any notice or opportunity to be heard. According to

Massachusetts law, there are now no circumstances under

which someone like petitioner could be heard. So long as con-

ception occurs while mother is married to another, the natural

father is permanently barred from asserting a claim no matter

how overwhelming the evidence of his paternity.°

This case presents the novel and important question of

whether the Due Process Clause affords any protection to a

natural father who has developed his relationship as much as

humanly possible only to find that the State can thwart his ef-

fort and sever his family ties to his child forever without any

opportunity to be heard.

B. The Holding In This Case Demonstrates That Massachu-

setts And Every Other State Considering The Claim Has

Misunderstood The Requirements Of Due Process

Analysis As Explicated By Board Of Regents v. Roth.

Since 1972 due process analysis holds that: “...a weighing

process has long been a part of any determination of the form

of hearing required in particular situations by procedural due

process. But to determine whether due process requirements

apply in the first place, we must look not to the ‘weight’ but to

the nature of the interest at stake.” Board of Regents v. Roth,

408 U.S. 564 at 570-571 (1972) (emphasis in original). '° “The

formality and procedural requisites for the hearing can vary,

depending upon the importance of the interests involved and

the nature of the subsequent proceedings.” Boddie v. Connec-

ticut. 401 U.S. 371, 378 (1971). But “[t]he constitutional re-

® In this regard, Massachusetts has rejected any consideration regarding

the substantiality of the claim. Thus, even if, on the face of the complaint,

petitioner could establish a case of paternity “beyond all doubt” he would be

barred from adjudicating his claim.

\© See also Smith v. Organization of Foster Families, Id. at 839-842 (1977);

Ingraham v. Wright, 430 U.S. 651, 672 (1977); Meacham v. Fano, 427 U.S.

215. 224 (1976): Goss v. Lopez, 419 U.S. 565, 575-6 (1975); Morrissey v.

Brewer, 408 U.S. 471, 481 (1972).

quirements of opportunity for some form of hearing before

deprivation of a protected interest, of course, does not depend

upon such a narrow balancing process.” Beard of Regents v.

Roth, supra at 570, n.8. This Court has consistently separated

the question of what interests fall within the Due Process

Clause and the question of what process is due. See, e.g.,

Annett v. Kennedy, 416 U.S. 134 (1974).

But when State courts have considered the claims of unwed

fathers seeking protection under the Due Process Clause, they

have uniformly ignored or misconstrued the Roth approach.

Instead of looking to the nature of the individual interest

asserted to determine whether it is entitled to protection in the

first instance, they have expressly engaged in a balancing pro-

cess, a “weighing of the competing private and public in-

terests,” in order to determine the existence of a protectable in-

terest. While this analytical approach is permissible once a

protectable interest has been shown and where the question is

what amount of process is due, it is not proper to apply this

analysis in determining whether or not a protected interest ex-

ists in the first place. Yet the states have mistakenly applied

this analysis regardless of the outcome, and in majority, con-

curring and dissenting opinions. See R.M.G. and C.W. v.

J.W. and W.W., 615 P.2d 666 (Colo. Sup. Ct. 1980); (“In

order to determine if due process provides the putative father

standing to rebut the presumption that the child is the issue of

the mother’s husband, we must weigh competing private and

state interests.” Dubofsky, J., specially concurring at 672; “I

agree. . .that the competing private and state interests must be

weighed in determining whether due process of law re-

quires. ..a hearing. . .”, Id. at 677, Lohr, J., dissenting); In re

Lisa R., 532 P.2d 123 (Cal. Sup. Ct. 1975) (“The question

whether appellant, as one claiming to be Lisa’s natural father,

can rebut the presumption that Lisa is the issue of her mother’s

marriage must thus be resolved by weighing the competing

private and state interests,” majority opinion at 131-132); A v.

X, Yand Z, 641 P.2d 1222 (Wyo. Sup. Ct. 1982) (“But, assum-

ing arguendo that A had a constitutionally cognizable interest,

competing private and state interests would have to be

weighed to determine whether a hearing were necessary to af-

ford due process of the law,” majority opinion at 1227);

Michelle W. v. Ronald W., 703 P.2d 88 (Cal. Sup. Ct. 1985)

(“...the issue must be resolved by weighing the competing

private and state interests,” majority opinion at 91);'' Peti-

tioner F, v. Respondent R., 430 A.2d 1075, 1078 (Del. Sup.

Ct. 1981) (“Thus, assuming arguendo that the putative father

has a constitutionally cognizable interest, that interest would

be outweighed by the competing public interest and public

policy in this case,” majority opinion at 1079); P.B.C. v.

D.H., 396 Mass. 68 (Mass. 1985) (majority opinion at 73; App.

A-1). See also Vincent B. v. Joan R., 126 Cal. App.3d 619

(Cal. App. Ct. 1981) (majority opinion at 624).

The erroneous path State courts have taken may be explained

by their fundamental misunderstanding of the holding in

Stanley v. Illinois, supra. Because Stanley involved the claim

of an unwed father to a hearing on his fitness before the State

could take custody of his children, its general due process

language is frequently cited. In Stanley, this Court stated:

“* what procedures due process may require under

any given set of circumstances must begin with a deter-

mination of the precise nature of the government func-

tion involved as well as of the private interest affected by

governmental action.’ Cafeteria Workers v. McElroy,

'! Indeed California has determined that an unwed father has no right to

adjudicate paternity where a presumed father is present but he has such a

right where no such parental figure exists and the child may otherwise

become a ward of the state. Compare In re Lisa R., 13 Cai.3d 636 (1975),

cert. denied, 421 U.S. 1014, rehg. denied, 423 U.S. 885 (1975), with

Michelle W., supra. Thus, in the California view a constitutionally protected

interest exists only where the balancing of interests burdens the State.

367 U.S. 886, 895 (1961); Goldberg v. Kelly, 397 U.S.

254, 263 (1970).

“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.” Id. at 650-651.

While the language of Stanley has been misconstrued as per-

mitting a “balancing” process between individual private in-

terests and state policies, a fair reading of Stanley does not

warrant such a conclusion. First, the quotation from Cafeteria

Workers is this Court's classic statement regarding what pro-

cess is due, not whether there is a protectable interest. Second,

the unwed father in Stanley undeniably had other state court

procedures available to him to adjudicate his claims. Third,

the Court was describing the type of balancing process neces-

sary to determine whether the type of procedure provided in

any given context passed constitutional muster. It was not con-

sidering the threshold inquiry of whether the asserted interest

fell within Fourteenth Amendment Protection. Finally,

though decided in the same term, Stanley preceded Roth's

watershed holding. The Stanley court was moving toward the

more objective standard Roth enunciated (“nature” of in-

terest) and moving away from the more subjective test

(“weight” of the interests).'* Stanley reflects this shift: the

Court emphasized the “essential,” '* “basic” '* and “precious” '

interest of “a parent in the companionship, care, custody, and

'* For example, a public school teacher who receives tenure upon hiring

couid invoke due process because the Roth test is satisfied. Yet, a teacher who

has worked for many years under an explicit year-to-year contract possesses

no protectable interest and may be dismissed summarily, despite the greater

magnitude of loss.

'S Meyer v. Nebraska, 262 U.S. 390, 399 (1923), quoted in Stanley, Id. at

651.

'* Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), quoted in Stanley, Id.

at 651.

'S May v. Anderson, 345 U.S. 528, 533 (1953), quoted in Stanley, Id. at

651.

management of his...children,”'* even as it permitted the

States to employ the more limited due process protections

given to less fundamental interests. '’ .

In this case, the Supreme Judicial Court of Massachusetts

not only erred in applying a balancing test, it erred also in

holding that the State had a ‘powerful countervailing interest’

that justified the complete preclusion of the natural father

from paternity adjudications. Jd. at 73 (App. A-6). The

Court's assumption that denial of the right to establish pater-

nity promotes Massachusetts’ legitimate interests in family life

embodies and effects the danger that Roth sought to avoid. At

the root of the Due Process Clause is the notion that the State’s

power over individual lives and liberties is limited by the pro-

cedural protections of the Due Process Clause. To deny a fun-

damental Fourteenth Amendment right because it promotes a

legitimate State interest is to beg the question, not answer it.

The approach taken in the area of paternal rights by State

courts considering the matter is at odds with the analysis this

court has mandated. Particularly in the sensitive area of the

rights of natural parents and their children, where state law

determines the final outcome in the vast majority of cases, '*

there is a substantial need for guidance from this court as to

the appropriateness of state court constitutional analysis.

'* Stanley, Id. at 651,

'’ Where the interests were less fundamental, the Court held that the facts

of the particular context determine how many of the traditional safeguards

should be applied. See Cafeteria Workers v. McElroy, 367 U.S. 886, 894

(1961) and Goldberg v. Kelly, 397 U.S, 254, 263 (1970), both quoted in

Stanley, Id. at 650. See also Fuentes v. Shevin, 407 U.S. 67, 69 (1972) (“the

household goods, for which appellants contacted and paid substantial sums,

are deserving of [due process] protection”). Indeed, it was the inherent sub-

jectivity of analyzing “the particular facts. . .to determine whether. . .a con-

stitutionally protected liberty interest” exists that formed the basis for the dis-

sent in Lehr. Lehr v. Robertson, Id. at 270 (White, J., dissenting).

'8 Lehr v. Robertson, supra; United States v. Yazell, 382 U.S. 341, 351-553

(1966).

ene |

Il. By Denyine A Natrurat Farner Tue Ricnt To Estasuisy

His Paternity, Massacnuserts Has Createp AN IMPER-

MISSIBLE GENDER-Basep CLASSIFICATION THAT VIOLATES

THe EQuaL Prorection CLAuseE.

The Massachusetts rule in this case holds that a natural

father has no standing to assert his paternity of a child con-

ceived while the mother was married to another man, even

where a substantial personal and financial relationship has

been developed with the child. This rule applies even though

Massachusetts expressly recognizes a natural mother’s right, in

precisely the same circumstances, to assert her claim of pater-

nity and support. '® By so doing, Massachusetts has established

an impermissible classification burdening natural fathers

which deprives petitioner and others like hin of the equal pro-

tection of the laws. It is a gender-based classification which

this court has never had the opportunity to consider.

The Massachusetts Supreme Judicial Court agreed that the

petitioner's rights were precluded in a situation in which the

parallel rights of the mother would be enforced, but it denied

that this rule was gender-based. As evidence of assertedly

even-handed treatment of men and women, the Court pointed

out that: “Not only mothers, but presumed fathers as well,

may initiate proceedings raising the issue of the child’s pater-

nity.” Id, at 74 (App. A-7). But the Supreme Judicial Court's

premise is false. The classification at issue is not between males

and females or between husbands and wives. Rather it is the

'* Under Massachusetts law, both the natural mother and the presumed

father (i.e., married to the mother at conception or birth) have the right to

establish the paternity of another. Baby X v. Misiano, 373 Mass. 265 (1977);

Symonds v. Symonds, 385 Mass. 540 (1982). See also M.G.L. c. 273,§ 12.

P.B.C. v. D.H., leaves open the question of “whether the child could, at some

point, for the purpose of establishing inheritance rights or for any other pur-

pose, bring an action attempting to prove that the [petitioner] is his natural

father.” (/d. at 75; App. A-8). See also Howell v. Kowalski, 380 Mass. 663

(1980).

classification between natural mothers and natural fathers

that is under attack.

The individuals who are similarly situated in this case must

be similarly treated. The presumed father (legal husband) is

not similarly situated; he is not a natural parent. His marriage

to the mother may have little or nothing to do with the child’s

welfare and, indeed, may even be inimicable to it. It is the dif-

ferential treatment of the natural mother who can initiate an

action for paternity from the natural father who cannot which

petitioner asserts violates the Equal Protection Clause. More-

over, because petitioner took the opportunity to “come for-

ward” and establish the kind of relationship with this child

that the Court in Lehr deemed constitutionally protected, the

“significance of the biological connection””® cannot be

ignored. Thus, the Massachusetts rule turns the values Lehr

enunciated on their head: the natural father is denied the op-

portunity to develop a relationship with his child and that op-

portunity is only available to another male. The result not only

differentiates impermissibly and unequally between natural

mothers and natura) fathers, it eliminates the rights of a

natural father altogether without consideration of the child’s

interest.

This Court has enforced the equal protection claims of

natural fathers in a series of cases. Caban v. Mohammed, 441

U.S. 380 (1979); Stanley v. Illinois, supra. Cf. Lehr v. Robert-

son, supra; Quiiloin v. Walcott, 434 U.S. 246 (1978). The

standard for review of asserted discrimination in these cir-

cumstances is clear:

“Gender based distinctions must serve [important] gov-

ernment objectives and must be substantially related to

the achievement of these objectives in order to withstand

judicial scrutiny under the Equal Protection Clause.”

Caban v. Mohammed, Id. at 388, quoting from Craig v.

Boren, 429 U.S. 190, 197 (1976). ?'

"20 Lehr, Id. at 262.

21 See also Reed v. Reed, 404 U.S. 71 (1971).

Here, the interests of the State have been articulated as

“legitimate and strong interests in the ‘strengthening and en-

couragement of family life for the protection and care of

children’ and in affording legitimacy to children.” P.B.C. v.

D.H., 396 Mass. 68 (1985) at 73 (App. A-6).?? While no one

would dispute the validity of these interests and that they are

“well within the power of the State to implement,”” this

classification is not substantially related to these aims and is

thus constitutiona!ly infirm.

First, Massachusetts’ interest in promoting the family unit is

at least diminished where conception and birth indisputably

occur at a time when no intact family exists and the mother is

a single parent. The conception of the child occurred at a time

when the mother, though still married, had been living

separate and apart from her husband for some time. She had

already commenced proceedings to obtain a divorce. The birth

of the child occurred when the mother was in fact divorced,

living as a single parent. (App. A-22).

Second, to the extent that the State interest includes protec-

tion of the family unit by preventing “[a] challenge to the pre-

sumption that the husband is the child’s father, brought by a

stranger to the marriage” (Id. at 74; App. A-7), it is not

served by precluding an adjudication of paternity by someone

like petitioner. The natural father is not a stranger making a

bald assertion of paternity. On the contrary, the record

reflects a compelling variety of credible evidence which,

coupled with the blood test which has been denied him, would

establish petitioner’s paternity “beyond all reasonable doubt.”

Id. at 71, quoting Phillips v. Allen, 2 Allen 453, 454 (1861);

(App. A-3). Acknowledgement of petitioner’s paternity by

the mother, frequent and regular visitation with the child

2 It is interesting to note that the Supreme Judicial Court’s language, in

rejecting petitioner’s right to adjudicate paternity, is taken from the pream-

ble (“Declaration of policy; purpose”) of the Massachusetts statute which

gives great deference to the rights and claims of biological parents. See Mass-

achusetts General Laws, Chapter 119,§ 1 (1984 ed.).

3 Stanley v. Illinois, Id. at 652.

agreed to in advance by the mother, the offer and acceptance

of child support, and the purchase of a home by petitioner

where mother and child lived, establish both the bona fides of

the petitioner's claim as well as his substantial efforts to

establish, maintain, nurture and develop his relationship with

his son.

Third, a natural mother’s claim of paternity and support

presents precisely the same potential for disruption to the

family unit, yet the mother’s claim is condoned by the State.

As Chief Justice Rose of the Wyoming Supreme Court stated in

his dissenting opinion:

“..the biological mother is permitted to bring an action

to disrupt the family unit (consisting of the mother,

presumed father and child) in order to declare paternity

in another—namely, the biological father (as in a bastardy

proceeding) while the biological father is prevented from

doing the same, i.e., bringing suit to establish his parent-

child relationship, which, perforce, would carry with it

the self-same family unit disruption and bastardy ramifi-

cations.” A v. X,Y and Z, 641 P.2d 1222, 1231 (Wyo.

1982).

The corollary of the mother’s bringing a paternity action is

that the natural father will! be responsible for support.** Thus,

the claim serves to take the duties and responsibilities of one

father and place them with another, implicitly rejecting the

concept of family and creating the issue of stigmatization.

Such consequences are permitted the mother, yet when made

by the natural father, as a positive assertion in order to assume

these same duties and responsibilities and to provide the child

with benefits such as support and rights of inheritance, the

State precludes them.

4 Such claims can, of course, also be made by the presumed father. See

Symonds v. Symonds, supra.

As the Colorado Supreme Court has stated in a similar con-

text:

“...[The rule] exemplifies a gender-based classification

predicated on an overbroad generalization that a mother

has a legitimate interest in establishing a determination of

paternity in a non-spousal father, while such father has

no interest in establishing a determination of paternity in

himself... .

“This statutory scheme creates more than a difference in

treatment of natural mothers and fathers. It establishes

contrary treatment.” Jd. at 671.

Fourth, Massachusetts’ valid interest in “affording legiti-

macy to children whenever possible” (App. A-6) is of mini-

mum significance in these factual circumstances. Legitimacy

as a legal concept establishes the obligation for financial sup-

port and the rights of inheritance. Neither issue is in dispute

here. The child is presumably supported by the mother’s hus-

band and in any case, petitioner has provided support and has

been ready, willing and able to continue to do so had the

mother, husband or guardian ad litem been willing to accept

his tender. As for the right of inheritance, the matter has never

been raised and it is not ripe for adjudication. *° What remains

of the State’s interest in affording legitimacy is its interest in

minimizing the potential for social stigma that some would say

attaches to one with that status. But in this context, that con-

cern too evaporates on closer examination. The adjudication

of paternity necessarily occurs in the context of whether or not

the best interests of the child would be served by visitation or

other contacts with the child. The issue of stigma is a relevant

factual consideration in determining the best interests of the

5 As noted, the State Court expressly declined to express an opinion as to

whether this child could sue petitioner for paternity to establish inheritance

rights. (App. A-8).

child after an adjudication of paternity. Weighed in the

balance of the “best interests of the child” formula, the

psychological effect of the so-called stigma, if any, may effect

the degree of access between father and child. But it may not

be used as a matter of social policy to preclude an adjudication

in the first place in all circumstances.

Indeed, this Court has held state custody determinations

based upon hypothetical stigmatization of the child constitu-

tionally improper. In Palmore v. Sidoti, U.S. (1984),

104 S. Ct. 1879, 80 L. Ed.2d 421, this Court held that the

possibility of stigmatization due to racial biases and stereo-

types was not a legitimate basis for a custody decision where a

white mother seeking custody was cohabiting with a black man:

“The Constitution cannot control such prejudices but

neither can it tolerate them. Private biases may be outside

the reach of the law, but the law cannot, directly or in-

directly, give them effect...‘Public officials sworn to

uphold the Constitution may not avoid a constitutional

duty by bowing to the hypothetical effects of private

racial prejudice that they assume to be both widely and

deeply held’”, Palmore v. Sidoti, U.S. at p.___, 104

S. Ct. at 1882 quoting Palmer v. Thompson, 403 U.S.

217, 260-61 (1971) (dissenting opinion of White, J.).

The purely private prejudice arising from the status of illegi-

timacy cannot be accorded consideration in this case as a mat-

ter of State policy any more than the supposed “damaging im-

pact on the child from remaining in a _ racially-mixed

household” * could be given deference in Palmore.’ See also

Michelle W. v. Ronald W., 703 P.2d 88 (Cal. Sup. Ct. 1985).

2° Palmore, supra U.S. at p. , 104 S. Ct. at p. 1881.

27 A number of states have enacted the “Uniform Parentage Act” (e.g.

California, Civ. Code § 7000 et seq., Stats. 1975 ch. 1244, § 11, pp.

3196-3204) which “makes a revolutionary change in the law by abolishing

the incidents of illegitimacy and establishing legal equality of children

without regard to the marital status of their parents”. See Michelle W. v.

Ronald W., supra, where the California Supreme Court expressly rejected

the “stigma” of illegitimacy as a basis for constitutional consideration.

Finally, what this Court has stated regarding state legisla-

tion is equally applicable to this judicially created State rule:

“If the State has open to it a less drastic way of satisfying its

legitimate interests, it may not choose a legislative scheme that

broadly stifles the exercise of fundamental personal liabilities.”

Kusper v. Pontikes, 414 U.S. 51, 59 (1973). To the extent that

Massachusetts has a legitimate interest in the stability and

sanctity of family life, it is already satisfied by the presump-

tion favoring the mother’s husband and by application of the

requirement that the presumption may not be rebutted “ex-

cept on facts which prove, beyond all reasonable doubt, that

the husband could not have been the father.” PBC v. DH, 396

Mass. 68 (1985) at 71 (App. A-3). All that petitioner seeks here

is the opportunity to rebut that presumption. Moreover,

Massachusetts need not allow access to its courts on a bare

claim of paternity. For example, in furtherance of its

legitimate interests, it could require a claimant to establish a

prima facie case by sworn affidavit filed with the complaint

that there was not an intact family at the time of conception

(mother living alone or with claimant), that conception occur-

red at a time when the claimant was having a sexual relation-

ship with the mother and that, after birth, claimant had

established and maintained a meaningful and substantial rela-

tionship with the child. Such requirements could not be con-

strued as impermissible. What the Constitution does not per-

mit is Massachusetts’ absolute ban on the right to rebut the

presumption altogether. *

*8 Thus, this case is not different from those cases that have reached this

Court challenging a State’s application of an irrebuttable presumption to

prevent an individual having an opportunity to assert an important interest:

“[W]here the private interests affected are very important, and the gx ‘ern-

mental interest can be promoted without much difficulty by a well-designed

hearing procedure, the Constitution requires the Government to act on an

individualized basis, with general propositions serving only as rebuttable

presumptions or other burden-shifting devices.” United States Department of

Agriculture v. Murry, 413 U.S. 508, n.18 at 518 (1973) (Marshall, J., concur-

ring); Cleveland Board of Education v. Lafleur, 414 U.S. 632 (1974); See

also Shapiro v. Thompson, 394 U.S. 618, 631 (1969); United States v.

Brown, 381 U.S. 437, 454, n.29 (1965); Carrington v. Rash, 380 U.S. 89, 96

(1965); Skinner v. Oklahoma, 316 U.S. 535 (1942).

The classification Massachusetts has created bears no

substantial relation to any important government objective. It

denies petitioner both his right to equal protection and to his

basic parental rights. The petitioner’s claim of gender-based

discrimination has not been decided before by this Court.

Given the number of conflicting State Court decisions on the

question, it is one that this Court ought to resolve.

Conclusion

Petitioner has raised novel and important questions regard-

ing the reach of the Due Process Clause and the application of

the Equal Protection Clause to this gender-based classifica-

tion. To the extent that State courts have adjudicated similar

claims, they have done so by uniform misconstruction of this

Court’s previously explicated analytical framework. For these

reasons and because substantial federa questions are pre-

sented, this petition for a writ of certiorari should be granted.

Respectfully submitted,

MATTHEW H. FEINBERG*

SEGAL, MORAN & FEINBERG

210 Commercial Street

Boston, MA 02109

MurRIEL CARPENTER

EspAILE, BARRETT & ESDAILE

75 Federal Street

Boston, MA 02110

MICHAEL J. Brooks

SEGAL, MORAN & FEINBERG

210 Commercial Street

Boston, MA 02109

* Attorney of Record

A-l

APPENDIX A

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

P.B.C. vs. D.H.

Middlesex, May 8, 1985.—October 10, 1985.

Present: HENNessey, C.J., Witxins, Liacos, Abrams, & O'Connor, JJ.

CiviL ACTION commenced in the Middlesex Division of the

Probate and Family Court Department on September 6, 1983.

A pretrial motion was heard by Edward M. Ginsburg, J.

Leave to file an interlocutory appeal was granted in the

Appeals Court by John M. Greaney, C.J.

The Supreme Judicial Court ordered direct appellate review

on its own initiative.

Steven I. Dean for the defendant.

Malcolm M. Donahue for the minor.

Muriel N. Carpenter for the plaintiff.

O’Connor, J. The plaintiff in this case contends that he has

a right to an adjudication of whether he is the father of a child

conceived while the child’s mother, the defendant, was mar-

ried to another man. We hold that in the circumstances of this

case he has no such right.

The complaint, filed in the Probate and Family Court, re-

quests that the court declare the plaintiff to be the natural

father of the child and that he be granted custody of the child,

or, if not custody, then visitation rights. The plaintiff moved

that the court order that he, the mother, and the child submit

to a Human Leukocyte Antigen (HLA) white blood cell test. A

judge denied the motion. Thereafter, there were proceedings

in the Appeals Court and before a single justice of this court, as

well as further proceedings in the trial court, resulting in the

allowance of the plaintiff's motion and an order that the plain-

tiff, the mother, and the child submit to the test on a specified

date.

A-2

When the mother and the child failed to submit to the test, a

judge of the trial court imposed sanctions by ordering that the

mother would be deemed to have made certain concessions

favorable to the plaintiff's claim. The plaintiff then moved

that the case be scheduled for trial, but, before a trial date was

assigned, the mother moved to dismiss the compiaint on the

ground that the plaintiff lacked standing to litigate the ques-

tion of his paternity. Taking into account the earlier proceed-

ings relative to the blood test, an affidavit that had been filed

by the plaintiff, and certain “undisputed evidence,” a judge

concluded that allowance of the motion to dismiss at that time

was inappropriate, and he denied the motion. At the same

time, he ordered the mother and the child to submit to the

HLA test. The order provided that the possible consequences

of noncompliance would be preclusion of the mother from

offering evidence at trial on the issue of paternity, incarcera-

tion until she complied with the order, and assessment of “daily

costs” against her.

The next procedural step was that the mother filed in the

Appeals Court a petition for review of the denial of her motion

to dismiss the complaint. A single justice of that court reasoned

that if the test were administered and showed that the plaintiff

was the child’s natural father, and if then, on appeal, it was

decided that the plaintiff had no standing to assert his pater-

nity, serious and longlasting emotional damage might unnec-

essarily be caused to the child. Accordingly the single justice

authorized an interlocutory appeal to the Appeals Court from

the denia! of the mother’s motion to dismiss the complaint,

and he ordered a stay of further proceedings in the trial court.

We transferred the case to this court on our own initiative. We

remand the case to the Probate and Family Court for the entry

of an order dismissing the complaint.

The trial judge and the single justice of the Appeals Court

relied on matters outside the pleadings in making their rulings.

The parties, too, in their briefs on appeal, rely on facts not

A-3

pleaded. Therefore, we treat the motion to dismiss as a motion

for summary judgment, and we consider the facts to be those

expressly or impliedly set forth in the pleadings, affidavits, and

briefs of the parties, and about which there appears to be no

controversy.

Those facts are as follows. For an extended period of time

before September, 1981, while the mother was married to

another man, the mother and the plaintiff had a sexual relation-

ship.' The mother filed a complaint for divorce in May, 1981.

The child was conceived the following September. A judg-

ment of divorce nisi was entered on December 8, 1981. The

divorce became final on June 9, 1982, and the child was born

the next day. The child has lived with the mother since birth

and has never lived with the plaintiff. Since September, 1983,

the mother has not allowed the plaintiff access to the child.

The complaint in this case was filed on September 6, 1983,

and after that the mother and her former husband remarried.

By affidavit and in her brief the mother asserts other facts

which the plaintiff appears to concede. Those facts are that

her remarriage to her former husband occurred on September

12, 1983, the child’s birth certificate lists her husband as the

father, the husband has never denied his paternity, and since

September, 1983, the mother, her husband, the child in ques-

tion, and an older chiid of the mother and her husband have

lived together continuously. We make those assumptions.

This court has held that a child born to a married woman is

presumed to be the child of the mother’s husband. Commen-

wealth v. Leary, 345 Mass. 59, 60 (1962). That presumption of

legitimacy may not be rebutted, even in a civil case, “except

on facts which prove, beyond all reasonable doubt, that the

husband could not have been the father.” Phillips v. Allen, 2

' The parties dispute whether their sexual relationship continued into Sep-

tember, October, and November, 1981. They also dispute the extent to which

the mother and her husband lived together between late 1981 and the sum-

mer of 1983. We make no assumptions as to those facts or other facts in con-

troversy. Resolution of the controverted facts would not affect our decision.

A-4

Allen 453, 454 (1861). We hold today that a child conceived by

a married woman is presumed to be the child of the man to

whom the mother was then married even if the mother and the

husband are divorced at the time of the child’s birth. Our hold-

ing fosters the important social policy of affording legitimacy to

children whenever possible. See Powers v. Steele, 394 Mass.

306, 310 (1985); Green v. Kelley, 228 Mass. 602, 605 (1917).

The plaintiff has not urged us to hold otherwise. He simply

argues that he should be permitted to rebut that presumption.

Here, the mother was married at the time the child was con-

ceived. The child, therefore, is presumed to be the husband’s

child. Although we have held that the presumption of legiti-

macy may be rebutted, and we have defined the burden of

proof in that regard, we have never confronted the question

whether the presumption may be rebutted by a man claiming

to be the child’s natural father. Nor does any statute answer

the question.

The question was not before us in Normand v. Barkei, 385

Mass. 851, 853 (1982), on which the plaintiff relies as support

for his contention that he has a right to prove that he is the

child’s father. Normand v. Barkei, supra, sheds little light on

the issue before us because in that case the children’s mother

was unmarried when the children were conceived and were

born. There was no question of legitimacy. The plaintiff

simply sought an order granting him visitation rights with

respect to two children unquestionably illegitimate, that he

claimed were his children.

We must decide for the first time, then, whether, in the cir-

cumstances of this case, a man is constitutionally entitled to a

judicial determination of whether he is the natural father of a

child conceived while the mother was married to another man.

We conclude that he does not have that constitutional right.

We further conclude, as a matter of public policy, that in the

circumstances of this case we should not recognize in the plain-

tiff a common law right to a paternity adjudication.

A-5

The plaintiff contends that denying him the opportunity to

establish his paternity would deprive him of the due process of

law guaranteed by the Fourteenth Amendment to the United

States Constitution. He relies on Stanley v. Illinois, 405 U.S.

645 (1972). In that case, the Supreme Court stated, “The pri-

vate interest here, that of a man in the children he has sired

and raised, undeniably warrants deference and, absent a

powerful countervailing interest, protection.” Jd at 651. An

understanding of the meaning and limits of that statement is

aided by an appreciation of the context in which the statement

was made. Stanley involved an acknowledged father’s efforts

to prevent his children from being declared wards of the State

upon the death of their mother with whom Stanley had inter-

mittently lived for eighteen years. At the time of the concep-

tion and birth of the children, the mother was unmarried, as

was Stanley. Unlike this case, no presumption of legitimacy

was involved. An Illinois statute, conclusively presuming that

a father of an illegitimate child is an unfit parent, provided

that upon the mother’s death the child would automatically

become a ward of the State. Focusing on the “cognizable and

substantial” interest of a man in the children “he has sired and

raised,” the Supreme Court held that the conclusive presump-

tion denying Stanley a right to be heard on his fitness as a

parent violated Stanley’s right to due process. Id. at 649-652.

We continue to recognize, as we did in Normand v. Barkei,

supra, that ordinarily and unwed father has a legally protect-

able interest in his children, and that he is entitled to establish

that he is their natural father. But it does not follow, and Stan-

ley v. Illinois, supra, does not require, that, in all circum-

stances, a man claiming to be the father of a child conceived

while the child’s mother is married to another man is constitu-

tionally entitled to be heard on the question of paternity.

As the plaintiff recognizes in his brief, “the guaranty of due

process. ..demands only that the law shall not be unreason-

able, arbitrary or capricious, and that the means selected shall

A-6

have a real and substantial relation to the object sought to be

attained.” Nebbia v. New York, 291 U.S. 502, 525 (1934). The

Commonwealth has legitimate and strong interests in “the

strengthening and encouragement of family life for the protec-

tion and care of children.” G.L. c. 119, §1 (1984 ed.), and in

affording legitimacy to children. Powers v. Steele, 394 Mass.

306, 310 (1985). Denying a plaintiff the right to establish his

paternity in the circumstances of this case promotes those in-

terests. Not only was the child’s mother married to a man

other than the plaintiff when the child was conceived, but also

the husband (the presumed father) has never denied that he is

the child’s natural father. Furthermore, the child’s mother

and the presumed father have been remarried almost since the

filing of the complaint herein, and, since that time, they have

continued to maintain a family unit which includes the child.

Although appropriate social policy might be clearer if the mar-

riage had been uninterrupted since the child was conceived,

we are satisfied that, in the circumstances obtaining here, de-

nying the plaintiff a right to litigate his paternity bears a sub-

stantial relationship to the aforementioned interests of the

Commonwealth, and, therefore, does not violate the plaintiff's

right to due process. Here, unlike in Stanley v. Illinois, supra,

there is a “powerful countervailing interest” that justifies

withholding the relief the plaintiff seeks. Our holding finds

support in other jurisdictions. See Vincent B. v. Joan R., 126

Cal. App.3d 619, 624-627 (1981); Petitioner F. v. Respondent

R., 430 A.2d 1075, 1078-1079 (Del. 1981); A. v. X, Y, and Z,

641 P.2d 1222, 1226-1227 (Wyo. 1982).

The plaintiff's constitutional agrument is not limited to the

due process clause of the Fourteenth Amendment. He relies

also on the Fourteenth Amendment's equal protection clause

and on art. 106 of the Amendments to the Constitution of the

Commonwealth (the Equal Rights Amendment). The plain-

tiffs sole argument regarding these constitutional provisions is

that to deny him the right to seek an adjudication of his pater-

A-7

nity while allowing the child’s mother to do so? is to establish

classifications based on sex, and that such classification is not

constitutionally justified by its relationship to any sufficiently

important interest of the Commonwealth. It is true that

“[g)jender-based distinctions ‘must serve important govern-

mental objectives and must be substantially related to achieve-

ment of those objectives’ in order to withstand judicial scru-

tiny under the Equal Protection Clause.” Caban v. Moham-

med, 441 U.S. 380, 388 (1979), quoting Craig v. Boren, 429

U.S. 190, 197 (1976). It is also true that “classification based

on sex is subject to strict judicial scrutiny under the State

[Equal Rights Amendment] and will be upheld only if a com-

pelling interest justifies the classification and if the impact of

the classification is limited as narrowly as possible consistent

with its proper purpose.” Lowell v. Kowalski, 380 Mass. 663,

666 (1980). But those constitutional principles do not apply in

this case because the described classifications are not gender-

based. Not only mothers, but presumed fathers as well, may

initiate proceedings raising the issue of the child’s paternity.

Symonds v. Symonds, 385 Mass. 540, 544 (1982).

That the distinction between those who may initiate pater-

nity proceedings and those who may not do so is not based on

sex is enough to defeat the plaintiffs argument. Further dis-

cussion, however, is appropriate. Even though no gender-

based classification has been established, “[e]qual protection

of the laws requires. . . .that all persons in the same category

and in the same circumstances be treated alike.” Opinion of

the Justices, 332 Mass. 769, 779-780 (1955). That requirement

is met here. The plaintiff is not “in the same category and in

the same circumstances” as the mother and her husband, the

presumed father, who, with the child in question and another

child, constitute a family unit. A challenge to the presumption

* “The mother herself is the proper party to seek a complaint for adjudica-

tion of paternity, for expenses of the pregnancy and support of the child.”

Baby X v. Misiano, 373 Mass. 265, 265 (1977).

eee

A-8

that the husband is the child’s father, brought by a stranger to

the marriage, such as the plaintiff, has the likely effect of seri-

ously disrupting an intact marriage and family contrary to the

interests of the Commonwealth. When the same challenge is

made by someone within the family, the ruptures in the mar-

riage and the family, most often, have already taken place,

and even when the family is intact, those within the family are

in far better position than is an outsider fairly to decide

whether the family can survive the challenge presented by liti-

gation of the paternity issue. These considerations justify

treating persons outside the family differently from persons

within it. Vincent B. v. Joan R., supra at 627; Petitioner F. v.

Respondent R., supra at 1080; A. v. X, Y, and Z, supra at

1224-1226. But see R. McG. v. J.W., 200 Colo. 345, 349-354

(1980).

We conclude that in the circumstances presented by this

case a man does not have a constitutional right to an adjudica-

tion of whether he is the father of a child conceived while the

child’s mother was married to another man. Also, because of

the social policy we have discussed above in favor of affording

legitimacy to children, whenever possible, and of “strengthen-

ing and encourag{ing] family life for the protection and care of

children,” we conclude that we should not recognize in the

plaintiff a common law right to such an adjudication. We ex-

press no opinion as to whether the child could, at some point,

for the purpose of establishing inheritance rights or for any

other purrose, bring an action attempting to prove that the

plaintiff is his natural father. We remand the case to the Pro-

bate and Family Court with instructions to enter an order

dismissing the plaintiff's complaint.

So ordered.

APPENDIX B

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

No. 85-0009

PBC

MEMORANDUM AND ORDER

This is a petition by the defendant, D H

under G.L. c. 231, §118, first par., for relief from an order of

the Probate Court denying her motion to dismiss for lack of

standing and for failure to state a claim. The primary question

is the question of standing.' Memoranda of law have been

received from counsel for all interested parties. As a single jus-

tice, I have no power tv allow a motion to dismiss which has

been denied in the Trial Court. I can, however, certify the

issues raised by the motion for interlocutory review by a panel

of this Court. I conclude that the issues should be so certified.

My reasons follow.

The facts relevant to the standing issue are these. D

H and W H were divorced by a

judgment of divorce nisi entered on December 8, 1981, which

became final on June 9, 1982. N H was

' No separate argument has been made on the failure to state a claim

branch of the motion. This ground is subsumed within the standing branch

of the motion.

A-10

born on June 10, 1982, one day after the divorce became final.

W H was named as N ’s father on

the birth certificate. It is undisputed that the plaintiff,

P B C , had an intimate relation-

ship with D H which extended over a period of

time, but the exact dates of the beginning and the end of the

relationship are in dispute. The plaintiffs affidavit, filed with

his complaint and largely unrebutted, alleges that he had sex-

ual relations with D H during the time

when N was conceived, that D told him

- and a therapist that the plaintiff was N ’s father, and

that D requested money from the plaintiff for the

child’s support. He subsequently purchased a home where

D lived with the child for several months, during

which time the plaintiff visited the child often and had him for

overnight visits. In early September of 1983, D in-

formed the plaintiff that she was moving away from the house

with the child, and the plaintiff filed his action to establish his

paternity and to obtain visitation rights. D

H remarried W H on September

12, 1983, subsequent to the filing of the plaintiff's complaint.

The defendant’s motion to dismiss alleges that the plaintiff

lacks standing to bring a claim for paternity with respect to

N H because the child is presumed legiti-

mate pursuant to both statutory law, see G.L. c. 46, §6 and

G.L. c. 190, §7, and common law. The defendant argues that

only the mother and presumed father of a legitimate child

should have standing to chalienge the child’s legitimacy. She

bases her view upon Massachusetts cases which she reads a

protecting the status of legitimate children by limiting stand-

ing and posing substantial evidentiary requirements for over-

coming the presumption of legitimacy. However, the defen-

dant concedes that this is an issue of first impression in Massa-

chusetts, and the relevant law is not easily applied to the facts

of this case.

A-11

1. Presumption of legitimacy. The defendant asserts two

alternative theories for the child’s presumed legitimate status:

first, that he was conceived during wedlock, and thus is pre-

sumed legitimate, see G.L. c. 46, §6, and second, that her

subsequent remarriage to her husband and the husband's

acknowledgement of Nathaniel as his child render Nathaniel

legitimate pursuant to G.L. c. 190, §7.

(a) It is clear that a child born in lawful wedlock is presumed

legitimate in Massachusetts, see Commonwealth v. Leary, 345

Mass. 59, 60 (1962) and cases cited. I cannot find any Massa-

chusetts decision holding that a child conceived in lawful wed-

lock is presumed legitimate. However, an Attorney General's

opinion, relying on the Leary case and a Michigari case, states

that a child conceived in wedlock is presumed to be legitimate,

see Op. Atty. Gen., June 12, 1970, and that presumption com-

ports with the great weight of authority in this country. ? If the

presumption extends to children conceived in wedlock, Na-

thaniel Homer would be presumed legitimate under Massa-

chusetts common law. ?

The common law presumption of legitimacy is not conclu-

sive, however, and may be rebutted by facts which prove,

beyond a reasonable doubt, that the husband could not have

been the father. Commonwealth v. Leary, supra at 60. Proof

of impotency, non-access, or exclusion by a blood grouping

test are all competent to overcome the presumption of legiti-

2 I generally hesitate to cite C.J.S. as authority but in this instance the

weight of authority is adequately and accurately collected in 10 C.J.S.,

Bastards, §3C.

* The defendant's reliance on G.L. c. 46 is misplaced. The statute does not

explicitly create a presumption of legitimacy, but merely directs town clerks

as to what information must be contained in birth and death records. The

above cited opinion of the Attorney General requires that the town clerk

record a birth as legitimate if the child was conceived during wedlock.

However, the information recorded on a birth certificate is not conclusive,

but is only prima facie evidence of the facts recorded. G.L. c. 46, §19.

Furthermore, the record of legitimacy may be amended if illegitimacy is

iegally determined or has been admitted by affidavit of the mother and hus-

band. G.L. c. 46, § 13.

A-12

macy. Ibid. This distinguishes Massachusetts from a great

many jurisdictions which have created a statutory presumption

of legitimacy which is conclusive as to everyone but the

mother and her husband, or the husband and his heirs. See

Annot., Who May Dispute Legitimacy of Child, 90 A.L.R.3d

1032, 1036-1057. A great many of the cases which the defen-

dant relies upon to support her standing argument arose in jur-

isdictions which have a conclusive statutory presumption of

legitimacy, and thus are inapposite.

(b) For purposes of establishing the inheritance rights of

illegitimate children, G.L. c. 190, §7, provides that an illegiti-

mate child shall be deemed legitimate if his parents intermarry

and his father acknowledges him as his child or has been ad-

judged as his father pursuant to G.L. c. 273. The statute gives

the illegitimate child the right to establish paternity, but does

not address the issue of who may question paternity. C

argues that the statute does not foreclose his claim because the

terms “parents” and “father” mean the real, natural parents

and father of the child, and W H is not

N ’s real father.

2. Standing Although §§11 through 15 of G.L. c. 273, do

not expressly confer standing on any individual to challenge

the presumption of legitimacy of a child born in wedlock,

cases decided pursuant to that statute have made it clear that

both the mother and her husband may challenge the presump-

tion and establish that someone else is the child’s real father.

See Commonwealth v. Stappen, 336 Mass. 174, 176-177

(1957); Commonwealth v. Leary, 345 Mass. 59, 60 (1962).

There is no Massachusetts statute which expressly grants

putative fathers standing to establish paternity, but a recent

case has recognized that G.L. c. 215, §6, grants a Probate

Court jurisdiction to adjudicate the visitation rights of a father

who asserts his paternity of an illegitimate child. Normand v.

Barkei, 385 Mass. 851, 852 (1982). If the plaintiff's paternity is

questioned, the court also has jurisdiction to determine the

A-13

paternity issue. Ibid. at 853. The Barkei case recognizes that

the general weight of authority grants visitation rights to the

father of an illegitimate child if it is in the child’s best interests,

ibid., and that the right to visitation may have a constitutional

basis. Ibid. at note 1. Barkei also recognizes that a putative

father has no other remedy, either pursuant to G.L. c. 273, or

any other statute, to establish his paternity and visitation

rights. The question presented here is whether the remedy

provided by G.L. c. 215, §6, as described in the Barkei case,

would be extended to a person who asserts that he is the father

of a child who may be presumed to be the legitimate child of

another man.

In other jurisdictions, the cases involving standing to dispute

the legitimacy of a child break down into basically three cate-

gories: (1) cases based on statutes which explicitly limit stand-

ing to specific persons, (2) cases based on statutes which

neither directly grant nor limit standing, and (3) standing based

on non-statutory grounds. In each of these categories, the

courts are divided on the question of whether the asserted

natural father has standing to challenge the presumption of

legitimacy. See Annot. 90 A.L.R.3d, supra. Generally, when

the statute which creates the presumption explicitly limits

standing to certain persons, the courts have been reluctant to

permit a man claiming to be the natural father to contest the

presumption of legitimacy. See 90 A.L.R.3d supra, §§5 and

15. However, some recent cases have determined that even in

a jurisdiction which expressly limits standing, it may in certain

circumstances be a denial of due process or equal protection to

deny the asserted natural father standing to contest the pre-

sumption of legitimacy. See 90 A.L.R.3d supra at §5; R. McG.

v. J.W., 615 P.2d 666 (Colo. 1980); Re R., 13 Cal.3d 635

(1975).

Although these cases are inapposite because there is no stat-

utory presumption of legitimacy in Massachusetts, some of the

constitutional considerations discussed therein may be equally

A-14

applicable to our common law presumption, especially in light

of the strict scrutiny given to classifications based on gender

under the Massachusetts Equal Rights Amendment. See

Lowell v. Kowalski, 380 Mass. 663, 666 (1980). To permit the

mother to question the presumption of legitimacy in proceed-

ings under G.L. c. 273, while denying the asserted father a

forum to chalienge the presumption, may be a gender-based

distinction which wiil be upheld only if a compelling interest

justifies the classification and if the impact of the classification

is limited as narrowly as possible consistent with its proper

purpose. Ibid. The Kowalski case recognizes that the State has

a compelling interest in differentiating between fathers and

mothers of illegitimate children for purposes of inheritance

laws because of the greater difficulties associated with estab-

lishing paternity and the greater potential for fraud. Ibid. at

669. However, the decision struck down as too broad an abso-

lute requirement that the child’s parents intermarry in order

for the father’s acknowledgement of the child to entitle him to

inherit. Ibid. Similarly, it is likely that the State has a compel-

ling interest in protecting the legitimacy of children conceived

in wedlock, but denying standing to the asserted natural father

may be too broad a remedy. See R. McG. v. J.W., supra at

670. But see A. v. X, Y and Z, 641 P.2d 1222 (1982) (asserted

father not granted standing; strict scrutiny not applied). The

evidentiary requirement of proof beyond a reasonable doubt

may be sufficient to achieve the State’s goal of protecting legit-

imate children while simultaneously protecting the asserted

father’s right to visitation, if he can prove that he is the natural

father and that such visitation would be in the child’s best in-

terests.

All of the above, persuades me that the issue of standing in

the circumstances present in this case has not been definitively

settled in Massachusetts and ought to be before the case pro-

ceeds further. This is particularly so in view of the recent

development of the law with respect to the constitutional

A-15

rights of fathers of illegitimate children based on the holding

and implications of Stanley v. Illinois, 405 U.S. 645 (1972).

This leads to a second relevant consideration. The tradi-

tional dogma on the certification of appeals from the denial of

motions to dismiss is to deny certification on the sound theory

that the question of the propriety of the denial of the motion

can be decided, if still relevant, in an appeal from the final

judgment entered in the case. The dogma appears to have sur-

face appeal here in view of the virtually irrefutable accuracy

of the HLA blood-grouping test. It appears that the results of

that test will settle the merits of paternity in this case one way

or the other, and it is tempting to say that the test ought to be

performed and its decisive results made known. There is a flaw

in this iogic, however, with respect to the rights of the child. If

the test demonstrates that the plaintiff is the father, and if an

appellate court finally determines that the plaintiff lacks

standing, there may be serious long-lasting emotional damage

done to the child. The case has already been terribly traumatic

for ail the parties and the prospect of added trauma to an inno-

cent child should, whenever possible, be avoided. It can be so

avoided here by permitting the standing issue to be settled out

of turn. Expediting the appeal will minimize the time delay

which imposes a burden on the other parties and will provide

the full measure of preliminary review to which I think the

parties are entitled.

Accordingly, it is ordered:

(1) that the defendant is permitted to file a notice of appeal

from the order of the Probate Court denying her motion to dis-

miss, and is further permitted to prosecute an interlocutory

appeal from the order of denial to a panel of this Court;

(2) that the decision of the appeal is to be expedited by

(a) the defendant filing her brief and appendix on or before

February 22, 1985, (b) the plaintiff and counsel for the child

filing their briefs (and any supplemental appendices) on or before

March 18, 1985, and (c) the appeal being placed on the April

A-16

list for oral argument in this Court;* and

(3) that further proceedings in the Probate Court in the case

be stayed until further order of this court or a single justice

thereof.

By the Court (Greaney, C.]J.),

s/WaARREN L. SHIELDS

ASSISTANT CLERK

Entered: January 29, 1985

‘ Extension of these time limits will be granted only for extraordinary

cause.

A-17

APPENDIX C

COMMONWEALTH OF MASSACHUSETTS

ProBATE & FAMILY Court

MIDDLESEX DIVISION

No. 5170

PBC

MEMORANDUM AND ORDER

This matter came on before the court for hearing on plain-

tiffs Motion to Compel and for Sanctions, and on defendant’s

Motion to Dismiss for Failure to State a Claim upon which

relief can be Granted and on plaintiffs Motion for Trial Date

Certain. Present were the attorney for the plaintiff, Muriel

Carpenter; the attorneys for the defendant, Steven Dean and

Harley Anderson; and the attorney for the minor child, Mal-

colm Donahue.

The central issue in the case at this stage concerns the pater-

nity of the minor child, N H . Mr. and Mr.

H were divorced by a Judgment of Divorce Nisi

dated December 8, 1981 which became final on June 9, 1982.

At the time of the divorce, the H had one (1) child. Mrs.

H was three (3) months pregnant with N at

the time of the Judgment of Divorce Nisi. It is undisputed that

the plaintiff and D H had an intimate rela-

tionship which extended over a period of time, the exact time

of the beginning and of the end of the relationship is in dispute.

Mr. and Mrs. H were remarried in September, 1983,

after the commencement of the current action.

The current action has been before the Trial Court, a Single

Justice of the Appeals Court (on two occasions), the full panel

A-18

of the Appeals Court (which declined to hear the matter), and

a Single Justice of the Supreme Judicial Court on the question

as to whether al! of the parties should be compelled to submit

to the HLA Blood Grouping Tests, and on the issue of the

appropriate sanctions for failure to submit to the tests. Initially,

the Trial Court refused to order the defendant, D

H , and the child to submit to the HLA Blood Group-

ing Tests. Based on the strong showing made in the petitioner’s

aftidavit, which is substantially unrebutted by the defendant

and the high degree of accuracy of the HLA Blood Grouping

Tests for determining paternity Chief Justice Greaney con-

cluded that it was an abuse of discretion for the trial judge to

deny the petitioner’s Motion for the test as evidence in the peti-

tioner’s pending Probate and Family Court action to establish

paternity. Mr. Justice Wilkins of the Supreme Judicial Court

declined to exercise jurisdiction under G.L. c. 211, §3 to

vacate the order for blood tests.

Upon remand Associate Justice Coffey of the Middlesex Pro-

bate and Family Court ordered all parties to submit to the

HLA Biood Grouping Tests. When the defendant, D

H , refused to comply Judge Coffey imposed as a

sanction the suggestion of Associate Justice Wilkins of the

Supreme Judicial Court that she would be taken to have con-

ceded that the tests would not exclude the petitioner’s paternity

and that the plaintiff would be entitled to show the signifi-

cance of that concession on a percentage basis. The plaintiff

appealed the sanction as being inadequate and the original

sanction was sustained by Chief Justice Greaney of the Ap-

peals Court as not constituting an abuse of discretion.

The plaintiff appeared before this Judge on December 19,

1984 seeking to set a trial schedule. Without having any prior

knowledge of the proceedings enumerated above, this court

suggested that the HLA Blood Grouping Tests was the most

probative evidence on the issue of paternity and suggested that

an appropriate motion be filed in order that the court might

deal with the issue before establishing a trial date.

A-19

In view of the long involvement of Associate Justice Coffey

with this case, inquiry was made whether he sought to retain

jurisdiction. Counsel informed the court that Associate Justice

Coffey was not retaining jurisdiction of this matter and have

so stated on the record. The court notes that by a second Mo-

tion for custody, visitation and sanctions, the plaintiff, on

September 20, 1984 sought among other things to have a find-

ing entered that the plaintiff be declared the natural father of

the minor child. The Motion was based on the refusal of the

defendant to submit to the HLA Blood Grouping Tests. Asso-

ciate Justice Coffey denied the Motion “without prejudice to

be re-submitted at the time of trial.”

This court is now faced with a serious dilemna. The defen-

dant now seeks to have the matter dismissed on the grounds

that only the husband and wife have standing to challenge the

paternity of a chiid conceived during coverture. Although this

question has not specifically been raised until now, the matter

was impliedly considered by Chief Justice Greaney of the Ap-

peals Court in his statement concerning the strong showing

made in the petitioner’s affidavit. In the petition before Mr.

Justice Wilkins under G.L. c. 211, §3 to vacate the order for

the blood tests, Justice Wilkins stated, “It is not argued here

that a man in the position of C has no right to have

his request for visitation considered, assuming he is found to be

the child’s father.” In view of the prior proceedings in this case

involving the propriety of the blood tests, and the showing of

the plaintiff in his Aftidavit and the undisputed evidence in

this case, this court does not believe that a Motion to Dismiss is

appropriate at this time. Whatever the merits of the defen-

dant’s position can be preserved and, if necessary, argued on

appeal after the case has been determined on the merits. To

encourage further piecemeal appellate review of this issue

under the circumstances of this case would be inappropriate.

All parties are entitled to some finality.

A-20

With respect to the trial of the case on the merits, this court

is concerned with the adequacy of the current sanction for

failure to submit to the HLA Blood Grouping Tests. On the

one hand, the defendant may have good reason for refusing to

take a test which has the possibility of producing highly proba-

tives evidence which could not only illegitimatize her child,

but also seriously disrupt her current family situation. On the

other hand, the plaintiff has stated a sufficient case so as to

pursue his claim seeking to establish paternity. At this point in

time when the line between children born in and out of wed-

lock is nowhere near as strong as it once was, and no one ques-

tions that the HLA Blood Grouping Tests has a degree of ac-

curacy far greater than the old exclusionary test, the court is

most reluctant to proceed without obtaining the best available

evidence. If the test is properly given, no significant physical

intrusion of any of the parties is involved. If the test is not

taken the court may well be deprived of the most probative

available evidence in determining the constitutional rights of

all the parties involved.

Another question which arises by the failure to obtain the

most probative available eviden-e concerns the burden of proof.

Where a plaintiff seeks to establish paternity in a situation

which would not only illegitmatize a child conceived during

coverture, but would also be potentially disruptive of an intact

family, the burden of proof may be more than the customary

civil standard. Under these circumstances, the results of a

properly administered HLA Blood Grouping Tests are even

more compelling. The HLA Biood Grouping Tests has the

potentiality of affirmatively determining paternity. The cur-

rent imposed sanction places the court in the same position it

was in with respect to blood grouping tests as existed prior to

the HLA Blood Grouping Tests.

In view of all of the above, it is hereby Ordered that:

1. The defendant's Motion to Dismiss for Failure to State a

Claim upon which Relief can be Granted is denied.

A-21

& Tie defender is orubreu’ ty appewr anu’ proulce tile

minor child, N H , for HLA Blood Grouping Tests

within thirty (30) days at a time and a place to be arranged by

all counsel. If the defendant has not complied with the order

to participate in the HLA Blood Grouping Tests, she shall ap-

pear before this court on Tuesday February 12, 1985 at 9:00

a.m. at which point the court will consider, among others, the

following sanctions: (a) that the defendant be foreclosed from

presenting any evidence of any kind whatsoever, whether in

her case, or in rebuttal of the plaintiff's case pertaining to the

issue of paternity; (b) that the defendant be incarcerated until

she agrees to comply with the order; (c) that the defendant be

assessed daily costs until she complies with the order.

3. Associate Justice Edward M. Ginsburg shall retain exclu-

sive jurisdiction over all aspects of this case.

By the Court,

January 2, 1985 s/ Epwarp M. Grinssurc

Date Epwarp M. Ginssurc,

ASSOCIATE JUSTICE

A-22

APPENDIX D

COMMONWEALTH OF MASSACHUSETTS

PROBATE AND FAMILY CourT

MIDDLESEX, SS.

P BC,

PLAINTIFF,

D H,

DEFENDANT.

COMPLAINT IN EQUITY FOR THE ESTABLISHMENT

OF PATERNITY AND FOR OTHER RELIEF PURSUANT

TO M.G.L. Ch. 215 §6

1. The plaintiff, P B C (“the putative

father”), resides at , Arlington in the County of Mid-

dlesex, Massachusetts.

2. The defendant, D H (“the mother’),

resides at , Lexington in the County of Middlesex,

Massachusetts.

3. N H (“the child”), resides at ,

Lexington in the County of Middlesex with the mother.

4. The child was born on June 10, 1982, when neither the

mother nor the putative father were married.

5. Beginning in 1978, the mother and the putative father

became involved in a close friendship which has continued to

the present and which involved sexual intimacy prior to, dur-

ing and subsequent to the time the child was conceived.

6. The putative father and the mother had sexual relations

in September, 1981, and the mother has told the putative

father that it was on that occasion that the child was conceived.

7. The mother has also told the putative father that she was

sexually intimate with her former husband, W

H , during the period August-September, 1981.

A-23

8. In the early months of 1982, the mother was reestablish-

ing a relationship with her former husband, and she began liv-

ing with him again in or about March, 1982.

9. In or about April, 1982, the defendant initiated a visit at

the plaintiff's residence with the plaintiff and his two children

of a former marriage who reside with the plaintiff.

10. In June of 1982, the mother phoned the teenaged daugh-

ter of the putative father to announce the birth of the child.

11. After the child was born, the mother told Eve Welts, her

psychotherapist at McLean Hospital in Belmont, Massachu-

setts that the child was fathered by the plaintiff.

12. The mother’s statement of the plaintiff's paternity to psy-

chotherapist Welts was followed by a series of joint therapy ses-

sions attended by Ms. Welts, the putative father and the mother

and on one occasion by the child in addition to the others.

13. At the aforementioned joint therapy sessions, the parties

discussed the plaintiff's paternity and the potential future rela-

tionships of the mother, putative father and child. The father

stated during the course of these sessions that he wanted to act

as a father toward the child and to be publicly acknowledged

as his father; the mother indicated that she did not want to

marry the putative father.

14. Soon after the child’s birth, the mother began taking the

child with her to the putative father’s home for visits with him

and his two teen-aged children.

15. In a conversation with the child’s father which occurred

several months after the child’s birth, the mother asked the

putative father for child support of fifty ($50) dollars per week

and told the putative father that she and her former husband

had plans to split up and would cease living together.

16. At a later meeting between the putative father and the

mother, the mother requested that the putative father pay a

higher amount of child support—one hundred ($100)dollars

per week—in that her former husband would be willing to pay

that amount. She also stated that she loved the putative father

and wanted to live near him.

A-24

17. The parties subsequently agreed that the putative father

would purchase a home in which the mother and child could

live and for which the putative father and mother would con-

tribute to the payment of the mortgage principal and interest

and taxes. The putative father was to pay four hundred ($400)

per month toward these expenses.

18. The putative father purchased a home in Lexington in

the County of Middlesex, Massachusetts in the spring of 1983,

and the mother and child have lived there since June, 1983.

19. On the day the mother moved into the Lexington home,

the child stayed with the putative father at his nearby home in

Arlington.

20. Since the mother and child moved into the Lexington

home, the putative father has typically visited the child several

evenings during the week and on Saturdays during the day.

21. Visits between the putative father and the child take

place at the child’s residence, at the putative father’s home and

at other locations.

22. Often the mother is not present when the putative father

visits with the child.

23. The plaintiffs teen-aged daughter babysits at the

mother’s residence when the mother is at work, and the puta-

tive father has visited the child during these times.

24. The putative father has purchased items for the use and

benefit of the child, and there is a crib and portable high chair

for the use of the child at the putative father’s home.

25. The putative father has participated in many activities

with the child typical of fatherhood such as bathing the child,

changing him, putting him to bed and playing with him.

26. The child recognizes the putative father and appears

happy to see him.

27. The father is trained as a pediatrician and a child neuro-

logist and is aptly suited by temperment, training and experi-

ence to care for the child and to provide him with a loving,

stable and financially secure environment.

A-25

28. The mother recently has told the putative father’s teen-

aged son that the child and he are brothers.

29. It is in the child’s best interest that a close relationship

between him and the putative father be maintained and that

his legal paternity be established.

30. The mother has told the putative father that she plans to

move out of the Lexington house on or before September 15,

1983 and that he should begin seeking tenants for the house

immediately.

31. The mother has not told the putative father where she

will move with the child.

Wuererore, the plaintiff prays that this Honorable Court:

1. issue a temporary restraining order enjoining the defen-

dant from removing the child from the Commonwealth of

Massachusetts;

2. issue a temporary restraining order prohibiting the

defendant from leaving her residence at in

Lexington, Middlesex County, Massachusetts before indicat-

ing to the plaintiff where her new residence will be and order-

ing the defendant to give notice to the plaintiff of her address

pending a determination of paternity and resolution of this ac-

tion;

3. after hearing, permanently restrain the defendant from

removing the child from this Commonwealth unless both par-

ents consent to the removal;

4. enter a Declara’ ry Judgment that the plaintiff is the

natural father of the child;

5. grant custody of the child to the plaintiff;

6. grant visitation rights to the plaintiff in the event that

physical custody is not granted to him;

7. grant such further relief as it deems meet and just.

A-26

PBC

By his attorney,

s/ MuprieEL N. CARPENTER

MunrieE. N. CARPENTER

EspaiLe, Barrett & ESDAILE

75 Federal Street

Boston, Massachusetts 02110

(617) 482-0333

DATE: September 6, 1983

A-27

APPENDIX E

COMMONWEALTH OF MASSACHUSETTS

PROBATE AND FAMILY CouRT

MIDDLESEX, SS.

PB Cc,

PLAINTIFF,

D H,

DEFENDANT.

AFFIDAVIT OF THE PLAINTIFF

B Cc , hereby affirm that the

following facts are true to the best of my knowledge and belief:

1. I am a physician employed in the emergency room at the

Whidden Hospital in Everett, Massachusetts.

2. In 1978, I became acquainted with the defendant,

D H , who worked as a nurse at the emer-

gency room at Whidden Hospital.

3. In the latter part of 1977 my divorce from my former

wife became final, and the defendant, knowing that I had

gone through a divorce, began discussing her marital difficul-

ties with me.

4. At some poxat in 1978 D separated from her

husband, and my relationship with her became closer. Under-

standing the difficulties she was experiencing I tried to help

her and recommended, for example, that she see psychothera-

pist Eve Welts at McLean Hospital, who had been very helpful

to me during my divorce proceedings. I also suggested that she

retain, David Lee, Esquire, the lawyer who had represezited

me and she eventually retained him.

5. As we became closer, D and I began having a

sexual relationship intermittently until one evening in August

of 1981 when D called me, took me out to dinner and

A-28

then back to her apartment. She stated that evening that she

did not want to continue with our relationship unless I was

ready to make a long-term commitment to her. I was unable to

give her the commitment she wanted, and it was decided that

we would no longer see each other.

6. About three weeks later, D , seeming very up-

set, phoned me and asked that I see her immediately. She

came to my house at her request, and we had a discussion and

eventually engaged in sexual relations. I was later to be told by

D that it was on this evening that she became preg-

nant with the child known as N H . who I

believe is my son.

7. Over the course of the next few months (October/ Novem-

ber, 1981) I continued to see D episodically, and we

continued to be sexually intimate on occasion.

8. At the end of 1981, we did not see each other at all until I

called and asked to see her in or about January, 1982 when we

met at a Howard Johnson’s restaurant. She did not remove her

coat during our meeting, and she told me that she would not

see me again.

9. In March of 1982 another emergency room nurse told me

that she had seen husband and that D was

pregnant and trying to work things out with him.

10. In late April or May, 1982, D called me and

said that she missed my children and wanted to visit them at

my home which she did. (I have an 18 year old son and a 15

year old daughter of my former marriage living with me.)

11. Shortly after giving birth to N. on June 10,

1982, D phoned my daughter to announce the news

of the birth. (D divorce of her former husband

W had become absolute on June 8, 1982.)

12. In July of 1982, D arrived at my home with

N. to show him to me and the children.

13. A couple of weeks later, D again visited my

home with the child and asked me how I felt about her. I was

A-29

surprised by the question because I knew she was still living

with her former husband W and I replied, “What do

you mean, you're back with your husband.” I then asked it the

new-born child was mine. Deborah became upset by the ques-

tion, stated that I had no right to ask it and left abruptly.

14. Shortly thereafter at a therapy session with therapist Eve

Welts, D stated that I am the father of N. H. There

followed joint meetings at the therapist’s office which D

and I attended. The child was at one of the meetings. We dis-

cussed the child’s future and the relationships of the three of

us. I stated that I wanted to act as a father toward N. H. and

to be publicly acknowledged as his father. The therapist

suggested that D wanted me to marry her, but

D denied this.

15. D continued to bring N to my home a

couple of times per week, and during this period D

told me that she had informed W that the child is

mine. D asked me for fifty ($50) dollars per week in

child support and stated that she and W would be

splitting up.

16. Later at a lunch meeting, D told me that she

loved me and wanted to live near me. She said that she would

cease living with her former husband, but she wondered if I

would be willing to pay one hundred ($100) dollars per week

in child support because her former husband had offered to

pay that much.

17. We resolved the matter by deciding that I would pur-

chase a home in which D and the baby and her older

child could live, and I would pay four hundred ($400) dollars

per month toward the mortgage (PIT) and she would pay the

balance as rent. The plan was to purchase a large enough

house so that D could also have a house-mate share

expenses.

18. I took D to a realtor and in the spring of 1983 a

nice Cape-style home in Lexington was found near a play-

A-30

ground and good schools. Lexington was chosen because of its

proximity to where I live and its suitability as a place to raise

children.

19. D moved in in June of 1983. I took care of the

baby on the day she moved in. Her former husband helped her

move in.

20. Since D has moved into the Lexington house, I

have taken advantage of her proximity to visit N

several times each week. Often my daughter babysits for

N while D is at work, and these are times I

often stop by to see the baby. I frequently give the baby a bath

and put him to bed. On Saturdays I have taken him for much

of the day. N is happy to see me and reuches for me

when I arrive. I play with him, change him, feed him and en-

joy being with him. N has slept overnight at my

house, and there are a crib and portable high chair at my

house for him to use.

17. Although the current thrust of my medical practice is

research in the fields of neuroanatomy and electronmicroscopy,

I am trained as a pediatrician and adult and child neurologist.

I am willing and able to care for N and to provide for

his physical, emotional and financial needs.

18. I have asked D to marry me recently, and she

has refused. I have requested that she affirm my paternity,

and she has refused. She will not submit to blood-grouping

tests to confirm N ’s paternity. —

19. Most recently D has told me that she is moving

from the Lexington house and that I am to immediately begin

showing the place to prospective tenants. While driving by her

home one evening recently I saw her packing suitcases into a

car which I did not recognize. She has spoken in the past of

possibly going to live with her family in Georgia. She tells me

that she isn’t looking for an apartment in this area and states in

answer to my inquiries that she doesn’t

A-31

20. Given D "s recent pronouncements about mov-

ing, her act of packing, her telling me to find new tenants for

the Lexington house and her vagueness with regard to where

she will go, I fear that she will move beyond the jurisdiction of

this court or that I may not be able to locate her and the child

and I will thereby lose my right to have N s paternity

determined and to have a part in his care and custody, which I

believe are in his best interest.

SIGNED UNDER THE PAINS AND PENALTIES OF PER-

JURY, THIS 6th DAY OF SEPTEMBER, 1983

A-32

APPENDIX F

COMMONWEALTH OF MASSACHUSETTS

PROBATE AND FAMILY CouRT

Docket No.

MIDDLESEX, SS.

P B C :

PLAINTIFF,

D H :

DEFENDANT.

PLAINTIFF’S MOTION FOR BLOOD GROUPING

TESTS TO AID IN THE DETERMINATION OF

THE ISSUE OF PATERNITY

Now comes the plaintiff in the above-captioned action and

respectfully requests that the court order the defendant and

the minor child, whose paternity is at issue, to submit, along

with the plaintiff, to human leukocyte antigen (HLA) white

blood cell and red blood cell tests and to whatever additional

blood or tissue tests are deemed necessary by a qualified labo-

ratory to aid the court in its determination of the paternity of

the minor child. The plaintiff requests that the testing be

ordered to be done forthwith at the Center. for Blood Research

in Brookline, Massachusetts or at such other qualified facility

as the Court may choose.

As grounds for this motion, the plaintiff states that the blood

grouping/tissue testing which is being requested by the plaintiff

has a high degree of accuracy in determining paternity as

recognized by the statutory and case law of this Common-

wealth. (See e.g. M.G.L. ch. 273 §12A and Commonwealth

v. Blazo, 1980 Mass. App. Adv. Sh. 1473.)

A-33

Respectfully submitted,

P B C

By his attorney,

s/ Muriet N. CARPENTER

MurieE. N. CARPENTER

Espace, Barrett & EspAILe

75 Federal Street

Boston, Massachusetts 02110

(617) 482-0333

DATE: Sept. 16, 1983

A-34

APPENDIX G

COMMONWEALTH OF MASSACHUSETTS

PROBATE AND FaMILy Court

Docket #5170

MIDDLESEX, SS.

P B C ;

PLAINTIFF,

D H ;

DEFENDANT.

PETITION OF PLAINTIFF FOR REVIEW OF

INTERLOCUTORY ORDER OF THE PROBATE AND

FAMILY COURT PURSUANT TO M.G.L. C.H. 231,

SEC. 118 (FIRST PARAGRAPH)

The above captioned matter is currently pending in the

Trial Court of Massachusetts, Probate and Family Court

Department. It is docketed in Middlesex County.

By his Complaint, the petitioner, P B

C , seeks to have his right to the custody or visitation

of the minor child, N H established pur-

suant to the Probate Court’s general equity jurisdiction. The

petitioner believes he is the natural father of N , who

was born on June 10, 1982. Neither party was married when

N was born. The respondent denies the petitioner's

paternity. Normand v. Barkei, 385 Mass. 851 (1982) holds that

the Probate Court has jurisdiction to determine paternity in an

action such as that which the petitioner has commenced where-

in he is asserting that he is the father of an illegitimate child

and is seeking visitation rights.

The petitoner appeals from the Court's denial of a discovery

motion—his Motion for Blood Grouping Tests to aid in the

Determination of the Issue of Paternity. Said Motion was

A-35

denied on October 13, 1983 and again denied after rehearing

on November 7, 1983. A copy of the Motion and copies of both

denials are attached hereto and marked Exhibits Al, A2 and

A3 respectively.

On or about September 3, 1983, the petitioner filed his veri-

fied Complaint in Equity for the establishment of paternity

and for other relief pursuant to M.G.L. Ch. 215, Sec. 6. The

Complaint is attached hereto and marked Exhibit B. In addi-

tion the petitioner filed an Affidavit with the Probate Court,

marked Exhibit C, in which he set forth the factual basis for

his belief that he is the father of N H

On September 23, 1983, petitioner's Motion for Blood

Grouping Tests was argued before the Probate Court. The

Court indicated that the results of said tests would be admissi-

ble into evidence at the trial of the action whether they ex-

clude the petitioner as the father of the child or are supportive

of his claim that he is the father. The Findings of Fact and

Conclusions of Law of the trial judge after hearing the Nor-

mand v. Barkei, supra, further support the petitioner’s conten-

tion that blood test results supportive of a putative father’s

claim of paternity are admissible into evidence in proceedings

such as this one. See Pages 8-13 of the Normand v. Barkei

Findings of Fact and Conclusions of Law attached hereto and

marked Exhibit D.

The Court indicated at the first hearing of the petitioner's

Motion for Blood Grouping Tests that it would not entertain

petitioner's Motion for Temporary Orders (Exhibit E) re-

questing joint legal custody, reasonable visitation rights and

that a guardian ad litem be appointed to determine what was

in the child’s best interest with regard to custody and visita-

tion. The Court indicated at that time that the paternity issue

had to be established according to the Normand v. Barkei deci-

sion prior to the making of any court order with regard to cus-

tody or visitation.

A-36

The petitioner maintains that his Motion for Blood Group-

ing Tests should be allowed forthwith so that the results can be

obtained, paternity of the child firmly established and so that

the petitioner can continue to pursue his right to visit the

child, which may be a right of constitutional stature, Nor-

mand v. Barkei at 852.

P B C

By his Attorney:

s/ MurieEL N. CARPENTER

MuriE. N. CARPENTER

EspaILe, Barrett & EsDAILE

75 Federal Street

Boston, MA 02110

617/482-0333

DATE: November 22, 1983

A-37

APPENDIX H

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

No. 84-87

ORDER

I have reviewed all the papers in this case and heard the

arguments of counsel. Based on the strong showing made in

the petitioner’s affidavit (which is substantially unrebutted by

the defendant), and the high degree of accuracy of the HLA

blood grouping test for determining paternity, see Common-

wealth v. Blazo, 10 Mass. App. Ct. 324, 325-327 (1980), I con-

clude that it was an abuse of discretion for the judge to deny

the petitioner’s motion for the test as evidence in the peti-

tioner’s pending Probate Court action to establish paternity. I

do not see any impermissible intrusion on the defendant’s con-

stitutional rights by the conduct of the test. I do perceive a

potentially serious constitutional problem if the test is not

allowed, viz. the deprivation to the petitioner of the most pro-

bative, available evidence for maintenance of a significant

claim.

Accordingly, an order is to enter in case no. 5170 in the Pro-

bate and Family Court Department for Middlesex County,

pursuant to Mass.R.Dom.R.P. 26 and 35, directing the peti-

A-38

tioner, the defendant, and the child, N H z

to submit to the Human Leukocyte Antigen blood cell test for

the purpose of determining the question of paternity. All fur-

ther proceedings necessary to enforce this order are to be con-

ducted in the Probate Court.

By the Court (GrEANEY, J.)

s/ SUSAN MILLER

ASSISTANT CLERK

Entered: January 3, 1984

A-39

APPENDIX I

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

No. 83-0505-CV

ORDER

It is ordered that the appeal in this matter be, and the same

hereby is, dismissed for lack of jurisdiction in a panel of the

justices to entertain the appeal because it was taken from a

purely interlocutory order for discovery (see Mass.R.Civ.P.

35[a]) which was entered by a single justice acting under the

first paragraph of G.L. c. 231, §118, as appearing in St. 1982,

c. 65.

By the Court (Grant, Kass &

Warner, JJ.)

s/ WaRREN L. SHIELDS

ASSISTANT CLERK

Entered: May 2, 1984

A-40

APPENDIX J

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTY

No. 84-160

SUFFOLK, SS.

D H :

PLAINTIFF,

P B C ;

DEFENDANT.

JUDGMENT

This matter came before the Court, Wilkins, J., presiding,

and in accordance with the memorandum of decision filed this

day;

it is ORDERED and ADJUDGED,

that the petition for relief under G.L. c. 211, §3, be and the

same hereby is, denied.

Dated at Boston, Massachusetts this seventh day of June,

1984.

s/ JoHN E. Powers

CLERK OF CourRT

A true copy.

Attest:

June 7, 1984

s/ JoHN E. Powers

CLERK

A-4i

APPENDIX K

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTY

No. 84-160

SUFFOLK, SS.

D H :

PLAINTIFF,

P B C ;

DEFENDANT.

MEMORANDUM OF DECISION

I decline to exercise the extraordinary power of this court

under G.L. c. 211, §3, to vacate the January 3, 1984, order

that certain blood cell tests be given. It is not argued here that

a man in the position of C has no right to have his re-

quest for visitation considered, assuming he is found to be the

child’s father. I do not know the reasons why the motion judge

denied the request for blood tests. The question whether

C is the father of the child is an important one in the

underlying action. A judge should not deny blood testing in

such a case unless therz is some articulable reason. The prelim-

inary showing by C was sufficient to warrant blood

testing in this case. Here, again, I stress that H does

not claim that C has no rights to have his visitation

request considered if he is the child’s natural father.

One further comment seems appropriate. H and

the child (acting through H , assuming no guardian

has been or will be appointed to protect the child’s interests)

may decline to take the test. H might be in contempt of

court, but the consequence may simply be that she will be

A-42

taken to have conceded that the tests would not exclude

C ’s paternity. C will be entitled to show

the significance of that concession on a percentage basis. It

may be that a blood test of the husband will also be appropri-

ate in resolving the paternity question.

s/ HerBert P. WILKINS

Hersert P. WILKINS,

June 7, 1984 ASSOCIATE JUSTICE

A true copy.

Attest:

June 7, 1984

s/ JOHN E. Powers

CLERK

= °§s . 4

A-43

APPENDIX L

COMMONWEALTH OF MASSACHUSETTS

PROBATE AND FAmiLty Court

Docket #5170

MIDDLESEX, SS.

P B C

PLAINTIFF

D H

DEFENDANT

MOTION FOR ORDER OF BLOOD GROUPING TESTS

Now comes the plaintiff in the above-captioned matter and

requests that the Court order the parties and chiid, N

H , to submit to blood grouping tests, including HLA

tests, on Wednesday, June 20, 1984 at i0:15 a.m. at the

Center for Blood Research, 800 Huntington Avenue, Boston,

Massachusetts.

As grounds for this Motion, plaintiff states that said testing

has been ordered by the Single Justice of the Appeals Court

and said time, date and place are available.

Respectfully submitted,

P B C

s/ MuriEL N. CARPENTER

MuriEL N. CARPENTER

EspaILE, BARRETT & ESDAILE

75 Federal Street

Boston, MA 02110

617/482-0333

A-44

TRIAL COURT

MIDDLESEX DIVISION PROBATE AND FAMILY

COURT DEPARTMENT

JUN 19,1984

The above motion is hereby allowed

s/ ARTHUR G. COFFEY

Justice, PROBATE AND FamiLy Court Depr.

DATE: June 8, 1984

Filed March 11, 1984

A-45

APPENDIX M

COMMONWEALTH OF MASSACHUSETTS

PROBATE AND FamMiILy Court

Docket #5170

MIDDLESEX, SS.

P B C

PLAINTIFF

D H

DEFENDANT

PLAINTIFF'S MOTION FOR CUSTODY,

VISITATION AND SANCTIONS

Now comes the plaintiff in the above-captioned matter who

states as follows:

1. The plaintiff believes he is the natural father of N

H , the child born to the defendant on June 10, 1982.

As detailed in the plaintiffs Verified Compiaint and the Affi-

davit filed therewith, there are numerous bases for the plain-

tiffs belief and as further detailed in said Complaint and Affi-

davit, the plaintiff had substantial contact with the child—

appropriate to his young age—until the defendant made the

decision to move back in with her former husband thereby

unilaterally cutting off the plaintiff's further access to the child

and causing him to file his Complaint for visitation and custody.

2. The plaintiffs rights vis a vis the child rest upon his being

found by the Court to be the child’s natural father. Normand

v. Barkei, 385 Mass. 851 (1982). For the past nine months, the

plaintiff has, therefore, sought access, through timely and pro-

per Court action, to the most probative evidence supportive of

his paternity claim: namely, the results of blood tests taken of

the child, the defendant and himself so that he can re-establish

his relationship with the child.

A-46

3. Initially, the Plaintiff's Motion for Blood Grouping Tests

was denied by the Trial Court on October 13, 1983. It was

denied again after rehearing on November 7, 1983.

4. Given the action of the Trial Court, and the plaintiff's

belief that he had the right to discover the blood test results, he

petitioned the Single Justice of the Appeals Court for review of

the interlocutory order pursuant to M.G.L. C. 231, Sec. 118,

and the Single Justice, after hearing arguments of counsel and

reviewing the papers in the case, ordered, on January 3, 1984,

that the blood tests be granted. The Single Justice perceived ea

potentially serious constitutional problem if the tests were not

allowed—the deprivation to the petitioner of the most proba-

tive available evidence for the maintenance of a significant

claim and saw no impermissible intrusism on the defendant's

constitutional rights by conduct of the test.

5. There followed an appeal to the Appeals Court by

H , which after the submission of briefs, was dismissed

on May 2, 1984 for lack of jurisdiction based on the Appeals

Court’s recognition that the appeal was taken from a purely

interlocutory order for discovery and not from an injunction

granting the substantive relief sought by the Complaint.

6. The defendant then petitioned the Single Justice of the

Supreme Judicial Court for relief pursuant to that Court’s ex-

traordinary powers of superintendence of lower courts. Said

relief was denied on June 7, 1984.

7. The plaintiff then rescheduled hearing of his Motion for

Blood Grouping Tests for June 18, 1984. On Friday afternoon,

June 15, 1984, plaintiff's attorney received a phone call from

the attorney for the child indicating his inability to attend the

hearing and as a consequence, all counsel agreed to reschedule

the hearing for June 19, 1984. On that date, all counsel ap-

peared and the Court indicated that decision on the motion

could be obtained by calling the Court in the afternoon. Plain-

tiffs counsel called the Court at the indicated time and learned

that the blood grouping tests had been ordered by the Court

A-47

for June 20, 1984 at 10:15 a.m. at the Center for Blood

Research, as requested in the plaintiff's motion. Counsel went

to the Court to pick up the copies of the motions on which the

allowance was noted and to have said copies hand delivered to

counsel for the child and counsel for the defendant, which was

accomplished by Minuteman Messenger, Inc. at approximately

4:30 p.m. on June 19, 1984 (see Ex. A.).

8. On the morning of June 20th (the day of the blood tests),

the Center for Blood Research called the office of plaintiff's

counsel indicating that counsel for the defendant had called

the Center late in the afternoon on June 19th, cancelling the

appointments of the defendant and the child for the next day

in direct defiance of the order of this Court. This action of

defense counsel occurred despite the Court’s twice repeated,

clear statements to the defendant at the Motion hearing on

June 19th that should the defendant not attend the Court

ordered blood tests, the result would be the Court’s finding the

plaintiff to be the father and granting him visitation with the

child. Thus, it was made clear to the defendant and her

counsel in their presence by the Court that defendant’s failure

to obey the Court’s blood test order would result in the plain-

tiffs obtaining the substantive relief he seeks.

Wuererore, the plaintiff seeks the following immediate relief:

1. Legal custody of the minor child, N

H ;

2. The shared physical custody of the minor child accord-

ing to the following schedule:

Monday night from 5 p.m. to 8 p.m.; Wednesday over-

night from 5 p.m. to 9 a.m.; 7 p.m. Friday night to 6

p.m. Saturday and on alternating weekends 7 p.m. Fri-

day to 9 a.m. Monday.

or, in the alternative, visitation of the minor child according to

the following schedule:

Monday night from 5 p.m. to 8 p.m.; Wednesday over-

night from 5 p.m. to 9 a.m.; 7 p.m. Friday night to 6 p.m.

A-48

Saturday and on alternating weekends 7 p.m. Friday to 9

a.m. Monday.

3. A finding that for the sole purposes of this litigation the

plaintiff be declared the natural father of the minor child; and

4. Payment of all costs and attorneys fees of the plaintiff

associated with obtaining blood grouping tests supportive of

his paternity as detailed in the Affidavit of his attorney filed

herewith.

P B C

By his Attorney:

s/ Mure, N. CARPENTER

Munrie. N. CARPENTER

EspAiLe, Barrett & EspDAILE

75 Federal Street

Boston, MA 02110

617/482-0333

DATE: June 29, 1984

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.