Opposition Brief — P. B. C. v. D. H.

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See rs |

Me FEB 7 1986

JOSEPH F. SPANIOL, JR.

In the a

Supreme Court of the United States.

OCTOBER TERM, 1985.

P.B.C.,

PETITIONER,

V.

D.H.,

RESPONDENT.

Response to Petition for a Writ of Certiorari to the

Supreme Judicial Court of Massachusetts.

BRIAN A. RILEy,*

20 Ashburton Place,

Boston, Massachusetts 02108.

(617) 742-7950

STEVEN I. DEAN,

One Commercial Street,

Foxboro, Massachusetts 02035.

(617) 543-6331

*Counsel of Record

BATEMAN & SLADE, INC BOSTON, MASSACHUSETTS

Questions Presented.

I. Has Massachusetts properly applied the Equal Protection

analysis in its protection of the fundamental constitutional

rights of a mother, her husband, and their children?

II. Did Massachusetts properly apply due process analysis

in dismissing the petitioner's complaint for his failure to show

any cognizable interest?

III. Has the State properly applied the requirements of due

process analysis as delineated by Board of Regents v. Roth?

Table of Contents.

Opinion below

Statement of the case

Statement of facts

Reasons for denial of the petition for certiorari

Conclusion

-_ WN —

10

Appendices follow page 11

Table of Authorities Cited.

CASES.

Anonymous v. Anonymous, 43 Misc.2d 1050, 252 N.Y.

S.W.2d 797 (1964)

Av. X, Y and Z, 641 P.2d 1222, cert. den., 74.L.Ed.2d

518, 103 S.Ct. 388 (Wyo. 1982)

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

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

Brugman v. Prejean, 288 So.2d 702 (La. App. 1974)

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

Commonwealth ex rel. Weston v. Weston, 201 Pa.

Super. 554, 193 A.2d 782 (1963)

Deatherage v. Phipps, 441 P.2d 1020 (Okla. 1967)

Dorsey v. Williamstown, 170 So.2d 773 (La. App.

1967)

Griswold v. Connecticut, 381 U.S. 479 (1965)

Hudson v. Hudson, 151 Neb. 210, 36 N.W.2d 851

(1949)

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il TABLE OF AUTHORITIES CITED.

In Re Lisa R, 13 Cal.3d 636 (1975), cert. den., 421

U.S. 1014, reh. den., 423 U.S. 885 (1975)

Knaver v. Barnett, 360 So.2d 399 (Fla. 1978)

Lehr v. Robertson, 463 U.S. 248 (1983)

Lynn v. State, 47 Ohio App. 158, 191 N.E. 100 (1934)

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

Moore v. East Cleveland, 431 U.S. 494 (1977)

P.B.C. v. D.H., 396 Mass. 68 (1985)

Perkins v. Perkins, 34 Conn. Supp. 187, 383 A.2d 634

(1977)

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

(1981)

Pierce v. Society of Sisters, 268 U.S. 510 (1925)

Prince v. Massachusetts, 321 U.S. 158 (1944)

P v. P, 86 Misc.2d 844, 383 N.Y.S.2d 1014 (1976)

Re Adoption of Young, 469 Pa. 141, 364 A.2d 1307

(1976)

Re Kessler’s Estate, 76 S.D. 158, 74 N.W.2d 599

(1956)

Roe v. Wade, 410 U.S. 113 (1973)

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

(1977)

Speight v. Wheeler, 310 So.2d 716 (Miss. 1974)

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

State v. Fury, 53 N.D. 333, 205 N.W. 977 (1925)

Taylor v. Richardson, 354 F. Supp. 13 (1973 D.C.

applying Cal. law)

Tracy v. Baker, 282 F.2d 431 (9th Cir. 1960)

Ventresco v. Bushey, 159 Me. 241, 191 A.2d 104 (1963)

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TABLE OF AUTHORITIES CITED.

Vincent B. v. Joan R., 126 Cal.App.3d 619 (1981)

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

CONSTITUTIONAL PROVISIONS AND RULES.

United States Constitution

Ninth Amendment

Fourteenth Amendment

Massachusetts Rules of Civil Procedure

Rule i2(B)(6)

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No. -

In the

Supreme Court of the United States.

OCTOBER TERM, 1985.

gh 5 ae

PETITIONER,

Vv.

D.H.,

RESPONDENT.

Response to Petition for a Writ of Certiorari to the

Supreme Judicial Court of Massachusetts.

Opinion Below.

The opinion of the Massachusetts Supreme Judicial Court,

which the petitioner attempts to challenge, is reported at 396

Mass. 68 (1985) and appears in the Appendix hereto at la.

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2

Statement of the Case.

The above-captioned matter was a case of first impression

in Massachusetts wherein a male was seeking to bastardize

the legitimate child of a married couple and thereby to establish

a claim of paternity to one of the couple’s children. The child,

N.H., is the legitimate child of D.H. and W.H. according to

Massachusetts statutes and rulings delineated for the Mas-

sachusetts Supreme Judicial Court. As the Supreme Judicial

Court recognized, petitioner fails to cite one authority from

any jurisdiction in the United States, granting him standing to

bastardize a legitimate child. Further, the court also recognized

the strong need to protect the fundamental constitutional rights

of a mother, her husband, and their family.

In September 1983, P.B.C. filed a complaint in the Mas-

sachusetts Probate Court to establish a claim of paternity. The

parties engaged in various discovery efforts, including

petitioner's efforts to obtain the administration of HLA Blood-

Grouping Tests. The petitioner received a lower court order

for such blood-grouping tests, including an order to incarcerate

the respondent-mother, and an order for monetary penalties

against the respondent.

In December 1984, respondent filed a mciion to dismiss for

lack of standing, for failure to state a claim upon which relief

can be granted per Mass.R.Civ.P. 12(B)(6) and for lack of

subject matter jurisdiction. D.H.’s motion to dismiss surveyed

the authorities in Massachusetts and throughout the United

States outlining P.B.C.’s failure to present any authority estab-

lishing his right to challenge the legitimacy of the child.

The respondent's motion to dismiss was denied by a probate

court justice in January 1985. Respondent appealed to the

Massachusetts Appeals Court which certified the matter for

interlocutory review by a full panel of said court.

3

Subsequently, the Massachusetts Supreme Judicial Court

ordered a direct appellate review on its own initiative. After

consideration of written briefs and oral arguments, the Mas-

sachusetts Supreme Judicial Court ruled that the petitioner had

no standing for an adjudication whether he is the father of a

child conceived while the child's mother was married to another

man. The Massachusetts Court ruled that while the presumption

of legitimacy may be rebutted by a child's mother, his pre-

sumed father, and the child himself/herself, a stranger to the

family relationship had no standing to encroach upon the fam-

ily’s fundamental Constitutional rights by bringing an action

to establish a claim of paternity.

Statement of Facts.

The undisputed facts, submitted by the parties and recog-

nized by the Massachusetts Court are as follows:

While the mother was married to W.H., the mother and the

petitioner had a sexual relationship for a period of time, ending

in July/August 1981 (App. | la-12a). The mother also experi-

enced marital difficulties, filing a complaint for divorce in

May 1981. The child was conceived in September of 1981,

when the mother had reconciled with her husband. A judgment

of divorce nisi was granted by the Massachusetts Probate Court

and the decree became final, automatically, on June 9, 1982.

The child was born the next day.

The child was immediately acknowledged as the offspring

of D.H. and her husband, W.H. The child’s birth certificate

lists the respondent’s husband as the father and the husband

has consistently acknowledged his paternity.

During the following fifteen months, through the commence-

ment of this action, the child lived with the mother and with

4

her former husband, the acknowledged father. The child never

lived with the plaintiff.

The complaint was filed on September 6, 1983. Since that

date, the mother, D.H., her former husband, W.H_, have

remarried, and have lived continuously together with their

children as a family (App. 10a, 12a).

During eighteen months of probate court hearings, the

petitioner never presented any evidence to support the allega-

tions contained in his own complaint and his unverified af-

fidavit. The respondent and her husband presented various

indicia of their relationship with the child, including birth

certificate, medical records, and affidavits.

Reasons for Denial of the Petition for Certiorari.

I. The petitioner fails to present any novel question of con-

stitutional rights in his challenge to state court decisions which

were based upon established analyses of United States Supreme

Court decisions. The United States Supreme Court has previ-

ously denied certiorari in two similar efforts to appeal. A v.

X, Y and Z, 641 P.2d 1222, cert. den., 74 L.Ed.2d 518, 103

S. Ct. 388 (Wyo. 1982); In Re Lisa R, 13 Cal.3d 636 (1975),

cert. den., 421 U.S. 1014, reh. den., 423 U.S. 885 (1975).

A. The Massachusetts Supreme Judicial Court properly

applied due process analysis, finding that petitioner failed to

demonstrate a cognizable interest pursuant to the analysis of

the United States Supreme Court, or any state court. Mas-

sachusetts also properly applied due process analysis in recog-

nizing the substantial fundamental constitutional rights of the

mother, her husband, and their family.

The Massachusetts Supreme Judicial Court, in this case,

expressly confirmed the existence of a rebuttable presumption

of legitimacy in cases where a child was conceived during wed-

5

lock and where the child was acknowledged by a male. This

presumption may be rebutted by a class of individuals who

are male and female. Specifically, the mother, the presumed

father, and the child all have standing to dispute the child’s

paternity. In this particular case, the child was conceived during

wedlock, atid the parents, though technically divorced, consis-

tently acknowledged the child as their own since its birth and

have remarried.

The petitioner, P.B.C., presented a fallacious argument to

the Massachusetts Supreme Judicial Court and he presents the

same argument to this United States Supreme Court. Specifi-

cally, petitioner asks the Court to assume that which he seeks

to ultimately prove. He asks the Court to assume his paternity,

and subsequently to grant him standing to attempt to prove his

paternity to a child which is already recognized as the legitimate

offspring of a married couple.

Failing to present any constitutional, statutory, or common

law authority to support his argument, petitioner attempts to

derive a right of standing from the holding and implications

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

In Stanley, the petitioner was an unwed male who was the

undisputed biological father of a decedent’s children. A state

law deprived the father of custody without any hearing on

parental fitness or proof of neglect. The United States Supreme

Court held that the undisputed father was deprived of due

process and equal protection of the laws. 405 U.S. at 647-658.

It is most significant to note that Stanley v. Illinois was a

custody case. Paternity and standing to bring an action regard-

ing paternity were not at issue. Paternity was undisputed. Stan-

ley provides no authority for any court to assume paternity

and subsequently allow one to attempt to establish a claim of

paternity.

Indeed, Stanley very carefully and explicitly enunciates the

substantial fundamental Constitutional rights of a true father,

6

and of the family unit. As the court stated, “[t]he integrity of

the family unit has found protection in the Due Process Clause

of the Fourteenth Amendment. . . the Equal Protection Clause

of the Fourteenth Amendment ... and the Ninth Amend-

ment. ..” 405 U.S. at 651.

[O}rdinarily an unwed father has a legally protectable

interest in his children, and ... he is entitled to

establish that he is their natural father. But it does

not follow, and Stanley v. Illinois, . . . does not

require, that, in all circumstances, a man claiming

to be the father of a child conceived while the child’s

mother is married to another man is constitutionally

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 unreasonable, arbitrary or capri-

cious, and that the means selected shall have a real

and substantial relation to the object sought to be

obtained.” Nebbia v. New York, 291 U.S. 502, 525

(1934). The Commonwealth has legitimate and

strong interests in “the strengthening and encourage-

ment of family life for the protection and care of

children,” G.L. c. 119 § 1 (1984 ed.), and in afford-

ing 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 these interests. . . . 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 [cert. den., 74 L.Ed.2d 518, 103

S.Ct. 388] (Wyo. 1982).

(App. 6a-7a.)

7

As the petitioner concedes, this Court has recognized the

constitutionally protected interests of a father in maintaining

his parental relationship with his child. See Lehr v. Robertson,

463 U.S. 248 (1983); Smith v. Organization of Foster

Families, 431 U.S. 816 (1977); Caban v. Mohammed, 441

U.S. 380 (1979); Stanley v. Illinois, 405 U.S. 645 (1972).

Petitioner fails to recognize that he is seeking to intrude

upon a_previously-established constitutionally protected,

father-child relationship which is enjoyed by the respondent's

husband and the child. Indeed, petitioner fails to justify his

position with the decisions of the United States Supreme Court

and virtually all state courts which protect the fundamental

constitutional rights of women and men as parents, and families

as a unit. Moore v. East Cleveland, 431 U.S. 494 (1977); Roe

v. Wade, 410 U.S. 113 (1973); Wisconsin v. Yoder, 406 U.S.

205 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965);

Prince v. Massachusetts, 321 U.S. 158 (1944); Pierce v. So-

ciety of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262

U.S. 390 (1923); Smith v. Organization of Foster Families,

431 U.S. 816, 844 (1977); Taylor v. Richardson, 354 F. Supp.

13 (1973 D.C. applying Cal. law); State v. Fury, 53 N.D.

333, 205 N.W. 977 (1925); Deatherage v. Phipps, 441 P.2d

1020 (Okla. 1967); Re Kessler’s Estate, 76 S.D. 158, 74

N.W.2d 599 (1956); ‘orsey v. Williamstown, 170 So.2d 773

(La. App. 1967); Brugman v. Prejean, 288 So.2d 702 (La.

App. 1974); Speight v. Wheeler, 310 So.2d 716 (Miss. 1974);

Ventresco v. Bushey, 159 Me. 241, 191 A.2d 104 (1963);

Anonymous v. Anonymous, 43 Misc.2d 1050, 252 N.Y.

S.W.2d 797 (1964); Commonwealth ex rel. Weston v. Weston,

201 Pa. Super. 554, 193 A.2d 782 (1963); Re Adoption of

Young, 469 Pa. 141, 364 A.2d 1307 (1976); Knaver v. Barnett,

360 So.2d 399 (Fla. 1978); Perkins v. Perkins, 34 Conn.

Supp. 187, 383 A.2d 634 (1977) (based on “long-standing

policy favoring the legitimacy and best interests of children”);

8

Hudson v. Hudson, 151 Neb. 210, 36 N.W.2d 851 (1949);

Lynn v. State, 47 Ohio App. 158, 191 N.E. 100 (1934); Tracy

v. Baker, 282 F.2d 431 (9th Cir. 1960); P v. P, 86 Misc.2d

844, 383 N.Y.S.2d 1014 (1976).

B. The analysis in this case and in all four states considering

similar claims, correctly applied the requirements of due proc-

ess analysis as explicated by Board of Regents v. Roth.

As set forth in Board of Regents v. Roth, 408 U.S. 564

(1972), Boddie v. Connecticut, 401 U.S. 371 (1971), the Court

must look to the nature of interests presented and subsequently

weigh the competing interests to determine entitlement to due

process and the nature of due process.

This analysis was appropriately applied by the Massachusetts

Supreme Judicial Court in this case, as it was correctly applied

in each instance by state supreme courts, considering claims

of previously unacknowledging males seeking standing to ad-

judicate paternity claims. See P.B.C. v. D.H., 396 Mass. 68

(1985);A v. X, Yand Z, 641 P.2d 1222, cert. den., 74.L.Ed.2d

518, 103 S. Ct. 388 (Wyo. 1982); 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). Indeed, Mas-

sachusetts considered the nature of the interests involved, and,

second, it assumed, for sake of argument, that the petitioner

did have a cognizable interest. Even with that assumption, the

Supreme Judicial Court recognized that the possible interest

of the petitioner was strongly outweighed by the interests of

the mother and her right to family privacy, the interests of the

presumed father and his relationship to the child, the Common-

wealth’s interest in promoting the strength of family life for

the protection and care of children, and the family’s right to

privacy (App. 8a-9a).

Petitioner’s argument fails in that he is looking to go beyond

the analysis of Roth. Whereas Roth directs the Court to consider

the nature of the interests involved, the petitioner in this in-

9

stance, is asking the Court to assume, or hypothesize some

relationship between the petitioner and the child. Such argu-

ment defies all appropriate due process analysis and the related

social policy concerns.

II. Massachusetts has appropriately recognized a classifica-

tion protecting the rights of mothers, presumed fathers, and

children against attack by strangers to the family relationship.

The Massachusetts Supreme Judicial Court considered the

equal protection arguments of the plaintiff and dismissed them,

finding that this Commonwealth position recognizes the stand-

ing of a class which cannot be described as gender exclusive.

In Massachusetts, as in most other states, the paternity of the

child can be challenged by mothers, presumed fathers, and by

the child himself/herself. The court determined this reality to

be sufficient to defeat the petitioner’s argument (App. 7a-8a).

The Massachusetts Court went further to consider the treat-

ment of persons who may be in like circumstances. The court

found that the petitioner is not in the same category and in the

Same circumstance as the mother and her husband, the pre-

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

child, constitute a family unit. The court stated:

A challenge to the presumption that the husband is

the child’s father, brought by a stranger to the mar-

riage, such as the plaintiff, has the likely effect of

seriously 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 marriage 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 pre-

sented by litigation of the paternity issue. These con-

10

siderations justify treating persons outside the family

differently from persons within it.

(App. 8a.)

The classification which Massachusetts has recognized is

not gender based and it clearly bears a substantial relation to

the important governmental objective of protecting the con-

Stitutional rights of mothers, fathers, and family relationships.

The petitioner is without a claim of gender-based discrimina-

tion.

Conclusion.

The petitioner's application for a writ of certiorari to the

Supreme Judicial Court of Massachusetts must be denied.

Petitioner has failed to raise any question of due process and

he has failed to raise any question as to the propriety of the

Massachusetts Equal Protection Analysis. Clearly, there has

been no gender-based classification imposed by the court of

this Commonwealth. Clearly, the four states which have con-

sidered this issue, have appropriately employed the due process

analytical framework set forth by the United States Supreme

Court. Petitioner’s attempt to hypothesize his paternity and

therefore seek standing to establish his paternity is a blatant

11

fallacy and must be dismissed. For these reasons, the petition

for a writ of certiorari should be denied.

Respectfully submitted,

BRIAN A. RILEY,*

20 Ashburton Place,

Boston, Massachusetts 02108.

(617) 742-7950

STEVEN I. DEAN,

One Commercial Street,

Foxboro, Massachusetts 02035.

(617) 543-6331

*Counsel of Record

12

Table of Contents.

Appendix I — Opinion of the Supreme Judicial Court

of the Commonwealth of Massachu-

setts, dated October 10, 1985

Appendix II — Affidavit of the petitioner D.H.

la

10a

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Appendix I.

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

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

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

Present: HENNESSEY, C.J., WILKINS, 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

married 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

2a

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

plaintiff, the mother, and the child submit to the test on a

specified date.

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 complaint on the

ground that the plaintiff lacked standing to litigate the question

of his paternity. Taking into account the earlier proceedings

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

the plaintiff, and certain “undisputed evidence,” a judge con-

cluded 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, incarceration

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 paternity,

serious and longlasting emotional damage might unnecessarily

be caused to the child. Accordingly the single justice authorized

an interlocutory appeal to the Appeals Court from the denial

3a

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

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, 198!, 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 judgment

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

tember, October, and November, 198!. They also dispute the extent to which

the mother and her husband lived together between late 1981 and the summer

of 1983. We make no assumptions as to those facts or other facts in controversy.

Resolution of the controverted facts would not affect our decision.

——— st :t«~SYS

4a

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

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

tion, and an older child 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. Common-

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

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

holding fosters the important social policy of affording legiti-

macy 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

conceived. The child, therefore, is presumed to be the hus-

band’s child. Although we have held that the presumption of

legitimacy 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 vy. 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

Sa

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

circumstances 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 plaintiff a common law right to a paternity adjudication.

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

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

and raised, undeniably warrants deference and, absent a pow-

erful countervailing interest, protection.” /d at 651. An under-

standing 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 conception

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 substan-

tial” interest of a man in the children “he has sired and raised,”

the Supreme Court held that the conclusive presumption deny-

~~ Se

6a

ing Stanley a right to be heard on his fitness as a parent violated

Stanley’s right to due process. /d. at 649-652.

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

supra, that ordinarily an unwed father has a legally protectable

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

he is their natural father. But it does not follow, and Stanley

v. Illinois, supra, does not require, that, in all circumstances,

a man claiming to be the father of a child conceived while the

child’s mother is married to another man is constitutionally

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 unreasonable,

arbitrary or capricious, and that the means selected shall have

a real and substantial relation to the object sought to be at-

tained.” 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

interests. 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 con-

tinued 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,

denying the plaintiff a right to litigate his paternity bears a

substantial relationship to the aforementioned interests of the

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

7a

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

there is a “powerful countervailing interest” that justifies with-

holding 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 argument 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 plaintiff's

sole argument regarding these constitutional provisions is that

to deny him the right to seek an adjudication of his paternity

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 governmental objec-

tives and must be substantially related to achievement of those

objectives’ in order to withstand judicial scrutiny under the

Equal Protection Clause.” Caban v. Mohammed, 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 Amend-

ment] and will 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.”

Lowell v. Kowalski, 380 Mass. 663, 666 (1980). But those

constitutional principles do not apply in this case because the

?“The mother herself is the proper party to seek a complaint for adjudication

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

v. Misianc, 373 Mass. 265, 265 (1977).

8a

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 paternity

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

is enough to defeat the plaintiff's argument. Further discussion,

however, is appropriate. Even though no gender-based classifi-

cation 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 that

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

marriage, such as the plaintiff, has the likeiy effect of seriously

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 marriage and

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 litigation 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

9a

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

express no opinion as to whether the child could, at some

point, for the purpose of establishing inheritance rights or for

any other purpose, bring an action attempting to prove that

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

Probate and Family Court with instructions to enter an order

dismissing the plaintiff's complaint.

So ordered.

Boe Te ee eee See, ee CR Ee OSL Pe Ae pe eee Cee ME me Sa ae ~

10a

Appendix II.

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS. PROBATE COURT

DOCKET NO. 5170

D.H.,

Petitioner

VS. AFFIDAVIT OF THE PETITIONER D.H.

F tess

Respondent

I, D.H., hereby affirm that the following facts are true to the

best of my knowledge and belief:

1. In September, 1972, i met W H at College

in , Massachusetts, where we were both students.

2. In May, 1974, W H graduated from College

and I shortly thereafter, in September, 1974, began nursing school

at the School of Nursing.

3. W H and I were married in March, 1975 and we moved

into an apartment at _— Street in , Massachusetts.

4. On November 17, 1977, W H and I had our first child,

5. In July, 1978, W H began a full-time graduate program

at University. I began working full-time as a nurse to

help support our family.

8. Is. ‘anuary, 1979, I began working at a new job as a nurse

at the Hospital in , Massachusetts.

7. In July, 1979, I was transferred to the emergency depart-

ment of the Hospital.

lla

8. In August, 1979, I was introduced to P B C who was

a supervising physician in the emergency room at the

Hospital.

9. Late in 1979 and early in 1980, P B C and I became

friends. He made repeated efforts to develop a romantic re-

lationship; however, I refused his repeated offers. We did

become friends, and during that period he began to tell me

many details about his divorce. In March, 1980, while W H

and I were having disagreements, P B C encouraged me to

see , a social worker who had counselled with P B C

during his divorce. P B C told me that he thought could

help me to work through my disagreements with my husband

W H, whether that meant separation or reconciliation. Also,

in March, 1980, P B C strongly encouraged me to see Attorney

who had counselied P B C through his divorce. P B C

Stated at that time that if I did not take some sort of legal

action, and my disagreements with W H continued, that W H

might remove our child from the area. I did see P B C’s

attorney, , and was informed that I did not need to take

any legal action.

10. In May, 1980, after five years of marriage, W H and

I separated. W H continued his studies at Univer-

sity and began working full time at the School,

while I continued in my capacity as a nurse at the

Hospital. W H and I continued to maintain contact and to

mutually care for our daughter,

11. In July, 1980, while W H and I were separated, |

entered into a physical relationship with P B C. He had made

many attempts to start one earlier, but I had refused. During

this time, he enlisted my help with his children from a previous

marriage who were in the custody of his ex-wife, . During

t's time, I did help with his children by visiting them, and

became friends with his children. At the same time I was continu-

ing with my husband, W H, to mutually care for our daughter,

PSE ee Ae ee Oe eer CST ae On ey eee ore *

:

:.

12a

12. In February, 1981, my husband, W H, discontinued

his studies at University to take on a second job.

He began giving me additional money to help support our

daughter, . W H and I continued to meet very regularly

to do things as a family with our daughter, ;

13. In May, 1981, W H and I had an argument about his

being late picking up for an overnight stay. P B C, at

that point, urged me to leave at P B C’s house while I

met W H, “to teach him a lesson.” P B C had been encouraging

me for over a year to obtain a divorce from my husband, W H,

and on this night in May, 1981, P B C again urged me to see

his attorney, , once again to obtain a restraining order

against W H and to take action toward a divorce. The next

morning I met with attorney , an associate of attorney

. Attorney stated that in addition to obtaining a

restraining order it would be advantageous to file for a divorce.

That afternoon, attorney and I appeared in Cambridge

to obtain a restraining order and to file for a divorce, upon P

B C’s urging.

14. In August, 1981, my husband W H and I began a

process of reconciliation. In that same month of August, I

terminated my relationship with P B C, never having relations

with him again. Late one weekend in August, my daughter,

and I spent a weekend camping in Salisbury with my hus-

band, W H, and W H and I resumed all aspects of our marriage

relationship.

15. In September, 1981, W H and I began staying together

on a regular basis, and continued to have relations which we

had resumed in August, 1981. On September 5, 1981, he took

me out for my birthday and we spent that night together. It

was on that night that we believe our son, , was conceived.

16. In November, 1981, I told my husband W H that I was

pregnant, and we decided that we should live together and,

after making arrangements, W H moved in with me in De-

cember, 1981.

l3a

17. During this period, W H and I discussed whether to

let the divorce proceedings continue or whether to terminate

the divorce proceedings. We decided to let the divorce go

through because we thought it would be much easier to simply

let the proceedings continue and get remarried, rather than to

stop the proceedings through our attorneys. It had been a very

stressful period of time since I had filed for a divorce at P B C’s

urging, and W H and I did not wish to have any more involve-

ment with the legal proceedings or with P B C.

18. In January, 1982, P B C called me, begged me to meet

him, and asked me to meet him at a Howard Johnson’s restau-

rant to talk. I met with him at the restaurant and told him that

W H and I were living together again, that our relationship

was well, and that I was happy, and that I did not want to see

P B C again. During this period of time, I was continuing to

have contact with P B C’s daughter, , whom I had be-

friended in the previous year. However, I never, during my

conversations with , asked to meet P B C, and never

asked if I could meet her at P B C’s house.

19. On June 9, 1982, the divorce decree between W H and

I became absolute. At the time, W H and I were living together

as husband and wife, holding ourselves out as a family unit

with our daughter, . At the time, we were not aware that

the divorce decree had become absolute.

20. On June 10, 1982, our child, N H, was born. His birth

certificate lists my husband, W H and myself, as the parents.

At the time of N H’s birth, W H acknowledged N H as his

child, we acknowledged ourselves as the parents of N H, and

continued to live together as a family.

21. In August, 1982, P B C’s daughter, , invited me

for a visit. While I was there, P B C came home and stated that

he was forty-one years old, and he wanted to die. When i

asked him why, he refused to discuss it. He also asked if N H

was his child, and I told him no. He stated that he didn’t think

l4a

he was. P B C stated he loved me, missed me, and began

pressuring me to see him again. I did not want that, as W H

and I were living together again, and had resumed our family

relationship. P B C continued to pressure me, however, and

I became confused. At the time, I was experiencing post-par-

tum depression and, as a result of the additional pressure

applied by P B C, I began to see the only social worker with

whom I had any prior experience, , whom I had met

two years previous through P B C. After several sessions with

, | refused to attend any further sessions because I felt

both and P B C were encouraging me to resume my

relationship with P B C. I did not want to continue that relation-

ship, I loved W H. did not appear sensitive to my

feelings, and seemed to be aligning herself with P B C; there-

fore, I discontinued counselling sessions.

During this time, in August, 1982, P B C became concerned

about any possibility that he was N H’s biological father. He

did not want anyone to know about our previous relationship,

and did not want anything to do with N H. He made me

promise that I would never sue him for paternity. He never

once mentioned having blood tests done. I never asked him

for child support. There were no planned visits between N H

and P BC. P B C did see N H on occasion when I was visiting

P B C’s children with whom I did have a good relationship;

however, such occasions were rare, and I never intended nor

wanted N H to have any exposure to P B C for various reasons.

22. PB C’s efforts to draw me away from my husband,

W H, and to interfere with our family relationship continued

throught [sic] the spring of 1983. During that period, W H

and I decided that we would move out of as we

were looking for additional living space as a family, and we

wished to find what we thought would be a better school system

for our daughter, , who was about to enter first grade in

September. I wanted to live in because of the quality

lSa

of the school system, and also because W H and I attended

church at in . W H felt that

was too far away for his business. W H and I were unable to

come to any agreement regarding a town, and, I therefore,

had decided that | would attempt to rent an apartment in

hoping that W H would find it to be a desirable

area and a convenient are, [sic] and therefore, change his mind

about buying a house there.

23. During this period of time, in the spring of 1983, P B C

upon hearing that I was looking for a place to live, offered to

take me to a realtor’ in who was a friend of his, and

who had sold him a house in the past. That realtor,

Realty, suggested that P B C buy a house as an investment,

and rent me the house or a portion of it. P B C purchased a

house in , with plans of converting it into an illegal

two-family house, and agreed to rent me that house for $650.00

per month.

24. In June, 1983, I moved into the house in

W H helped me to move into the house. While W H and I

disagreed as to where we ought to be living, we continued to

work on provided [sic] a family home environinent for the

children. W H, at that time, continued to provide financial

support for both our children, and W H also stayed at the

house very frequently.

During the initial month I was living in vec

attempted to intrude upon my family relationships, and attempted

to exercise some control over me as my landlord. P B C would

drive by the apartment late at night, complain to me later about

W H and | continuing to live together, and attempt through

various means to have access to my children, and N H.

W H and | avoided these efforts by P B C, wanting to protect

our children, and N H, from contact with P B C. We did

have a close relationship with P B C’s daughter , and she

continued to baby-sit for and N H. Infrequently,

would request to baby-sit at her own house for her convenience,

l6a

so | brought a crib and a portable high chair, which W H and

I hac purchased for N H, over to ‘s house for her to use

in caring for N H along with toys for both children. This

continued until moved back with her mother.

25. After living in for approximately one month,

I realized that I had made a mistake, and that W H was rot go-

ing to change his mind about locating permanently in

W H and I began to discuss the possibility of buying a house

in another town, specifically, , and in late July began

looking for a house in that town. At that point, P B C became

concerned about my intention to move away from

and P B C asked me to refrain from paying him the agreed

upon $650.00 per month rent, stating that he would deduct it

from the $2,000.00 I had loaned him to purchase the house.

P B C also became much more persistent in his efforts to

interfere with the family relationship that W H and I were

enjoying.

26. In August, 1983, W H and I went on a vacation together.

We had made our decision to relocate, and we had also decided

to remarry in the fall.

27. Two weeks later, P B C filed a lawsuit against me and

served me with restraining orders. I immediately moved back

to with W H and our children, intendiiig to remain there

until W H and I were able to purchase a house in

28. On September 12, 1983, W H and I remarried.

29. On November 10, 1983, we purchased a two family

house in

30. W H and "7 have had a very good, solid, loving and

caring relationship both during our previous marriage and since

our reconciliation in August, 1981. Our relationship and our

family relationship has especially flourished since our remar-

riage in September, 1983 and our move to . Our

marriage has never been stronger. We would like to have

17a

another child, but feel we should wait until the Court proceed-

ings in this case have been resolved.

This Court case has taken a great toll on us, emotionally

and financially. I believe that P B C has taken this action out

of revenge and malice as demonstrated by his actions and as

demonstrated by the fact that he never acknowledged N H as

his child or attempted to assert any claim to paternity for over

fifteen (15) months following N H’s birth. He only began to

assert any claims to paternity after he realized that W H and

I were going to remarry in September, 1983.

Signed under the Pains and Penalties of Perjury, this 13th

day of July, 1984.

S/

D.H.