# Petition for Writ of Certiorari — Jerry K. v. Dawn D. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1019%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 525 U.S. 1055 ## Text ei Supreme Court, v. % rich 98 62s iuL6 OR Orrice OF THE ChERK No. In the Supreme Court of the United States October Term, 1998 Jerry K., Petitioner, Real Party in Interest, and Appellant VS. Dawn D.., Respondent, Petitioner, and Appellee On Petition for a Writ of Certiorari to the United States Supreme Court Petition for Writ of Certiorari FEY eye? SERRE PEE Ly No. In the Supreme Court of the United States October Term, 1998 Jerry K., Petitioner, Real Party in Interest, and Appellant Vs. Dawn D., Respondent, Petitioner, and Appellee On Petition for a Writ of Certiorari to the United States Supreme Court Petition for Writ of Certiorari George E. Mc Gill Henry James Koehler IV 120 Birmingham Drive 9454 Wilshire Blvd. Suite240 Suite 207 Cardiff-By-The-Sea, Beverly Hills, CA CA 92007 - 90212 (760) 436-1146 (310) 247-7100 Counsel of Record Of-Counsel Steven F. Wingfield 8241 La Mesa Bivd. La Mesa, CA 91941 (619) 238-1568 Of Counsel July 4, 1998 mares OO NA Om MBE 9 AS PNA ERIE IT v9 QUESTIONS PRESENTED Whether a state deprives a person due process, equal protection and his right to privacy under the due process clause and/or the Equal Prutection Clause under the 14* Amendment to the United States Constitution and/or rights to privacy under the United States Constitution when a) a parent and child are deprived of a natural parent relationship based on the unilateral decision of one parent to exclude the other parent, when the excluded parent with said child; b) a woman/mother has the unilateral power to choose and dis-choose a legal man/father based on her unilateral exclusion of the biological father from a relationship with his child (a form of unclean hands prevention) by statute; c) a state’s statutory scheme prevents a natural/biological father, who comes forward in a prompt fashion to preserve his liberty interests and who is unilaterally prevented from a relationship by the mother, from being deprived of a hearing to establish his paternity or visitation rights; d) a statutory scheme grants rights to a natural mother to prevent a man from having a relationship or building a relationship with to a child by merely keeping the child from contact with that man, natural father or not. Questions Presented............... i, Table of Authorities ............... iii, iv ME cb-cnnseccecccbmcesses Vv Opinions Below ..............-++: 1 Pa pa cneenoceseetsnsass 1 Statement Of case .............20- 9 Reasons for Granting............. 13 I ccecntsdssetharea ee « 27 Appendix A Opinion of the Trial Court ...... 31 Appendix B Opinion of the Supreme Court of the State Gah occececednceceters 45 Appendix C Denial of visitation of the Trial Court .117 TABLE OF AUTHORITIES Page Cases (Mont. 1995) | FEE. 26 Adoption of Marie R. (1978) 79 Cal. App.3d 624, 145 Cal. Rptr. 122... 25 In Re Adoption of B.G.S. (1990) Sea 27,28 In Re Angelia P, (1981) 28 Cal.3d908..... 28 (Minn.Ct.App. 1998) STE TEMA i ck e dss csc ccesccss- 26 (1987) 257 Ga. 292, 358 S.E.2d 459........... 27 Brasher vy Brasher (1967) 253 Cal,App.2 867. 28 C.C. v. A.B. (Mass. 1990) 550 N.E.2d 365, 372 Caban v Mohammed (1979) 441 U.S. 380, SRE a a vv ekcctccccics 14, 17, 22, 27 Clark v Jeter (1988) 486 U.S. 456........ 28 (La.Ct.App. 1985) 391 U. Ss. BB, (1968) ee 24 Gorton y, Gorton (N.Y. Fam.Ct. 1984) Se og ees. 26 Green y, Long (Del. Fam.Ct. 1988) 547 A.2d 630 26 Gregory v, McLemore (Okla.Ct.App. 1995) 899 P.2d 1189..... oo toe 26 Griswold y, Connecticut, 381 U.S. 479 CU ere CE Ss ees 24 In Re the Guardianship of Ethan S. (1990) 221 Cal.App.3d 1403, 271 Cal Rptr. 121. 21 -iii- Harris y Mc Crac (1980) 448 U.S. 297..... 28 ly. Harrington (Miss. 1994) 644 So.2d 1218 26 In Interest of J.W.T. (Tex. 1994) 872 S.W.2d 189 26 Cal. Rptr. 519... 26 Johnson v Calvert (1993) 5 Cal. 4th 84... 24 Johnson y, Studley-Preston (Idaho 1991) 812 P.2d 1216 In re Kelvin M. (1978) 77 Cal. App.3d 396, 143 Cal Rptr. 561............... 24 Adoption of Kelsey S., (1992) 1 Cal.4th 816. 24 Kovacs v. Cooper, 336 U.S. 77, 95 (1949) 23 KS. y. RS. (ind. 1996) 669 N.E.2d 399..... 26 Lehr v Robertson 463 U.S. 248, SE iiss ci wesc dccécc ce’ 22, 27 Levy v, Louisiana, 391 U.S. 68, (1968).. 24 ME v.NH. (NJ. Super.Ct. App.Div. 1991) Sia bkdasvsbunns cs dees ues 26 Mathews v, Eldridge (1976) 424 U.S.319. 27 In the Matter of Raquel Marie X. (1990) 76 N.Y.2d 387, SS9N.E.2d418........ 28 559 N.Y.S.2d 885, cert.den. 111 S.Ct. 517 May v, Anderson, 345 U.S. 528, (1953).. 23 McDaniels vy, Carisor (Wash. 1987) 738 P.2d 254 26 R.McG. v. J. W, (Colo. 1980) 615 P.2d 666... 25 In Re Melissa G, (1989) 213 Cal. App.3d 1082, SOU CUI nc cccccccceses Meyer v. Nebraska, 262 U.S. 390, (1923). 23 Michael H. et al. v. Gerald D, (1989) -iv- 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91,57 U.S.L.W.4691 .... 13,19, 21 Pickett y Brown (1983) 462 U.S.1........ 28 Plyler vy Doe (1982) U.S. 202............. 28 Prince v. Massachusetts, 321 U.S. 158 ee Ba Tins sccccese 23 Quilloin y Walcott (1978) 434 U.S. 246, ES 16, 17 Richard Wy, Roberta Y (N.Y. App.Div. 1995) Ge a ihiienis 60% i os iseccse 26 Rodney F, v Karen M. (1998) 61 Cal App.4th 233, and amended 61 Cal.App.4th 1131 13 In Re Roger S. (1977) 19 Cal.3d921....... 28 Shapiro vy Thompson (1969) 394 U.S. 618, ger Spanien FEN 15 Simcox y, Simcox (Ill. 1989) 546N.E.2d 609. 26 Skinner v, Oklahoma, 316 U.S. 535, (1942) 23, 24 in re Marriage of Slayton (lll_App.Ct. 1996) nS Ce a a 26 Smith y, Jones (La.Ct-App. 1990) 566 So.2d 408 26 Smith v Organization of Foster Famili for Equality and Reform (1977) 431 U.S. 816, SE ee ee 22 Stanley vy. Illinois (1972) 405 U.S. 645... 26,27 In Re Steve B.D., (1986) 112 Idaho 22, ESS Pe 26 In re Paternity of T.R.B. (Wis.Ct-App. 1990) 454. N.W.2d561....... oy ies te 26 Turner y, Whisted (Md. 1992) 607 A.2d 935; 26 Wisconsin v Yoder (1972) 406 U.S. 205, Sooo i Giaheebaacccce. 22 -V- (RAJ v. LBV. (Ariz.Ct.App. 1991) 817 P.2d 37; Willmon y, Hunter (Ark. 1988) 761 S.W.2d 924 25 Family Code § 7540. Family Code § 7541. Family Code § 7550 Family Code § 7551 Family Code § 7554 Family Code § 7600 Family Code § 7610 Family Code § 7611 Family Code § 7630 Family Code § 7631 Uniform parentage Act section 2, 9B U.L.A. 295, 296. Si OO IIAU YD N >» Constitutions Constitution of the United States Harry D. Krause, The Uniform Parentage Act, 8 Fam. L.Q. 1, 6-8 [1974]............ 24 -vi- — Bes = 00 oS In The Supreme Court of The United States October Term, 1998 Jerry K., Petitioner, Real Party in Interest, and Appellant vs. Dawn D., Respondent, Petitioner, and Appellee OPINIONS BELOW The ruling of the Trial Court, Superior Court of California, County of Riverside, of 10/28/96, against which Appellee, Dawn D., applied for a Writ of Mandate, is attached as Appendix A. The opinion of the Supreme Court of California, filed April 6, 1998, reported at Cal. 4th , is attached as Appendix B. The denial of visitation by the Trial Court, Superior Court of California, County of Riverside, of 7/1/98, is attached as Appendix C. JURISDICTION Jerry K., the appellant, appeals from a California Supreme Court decision, dated April 6, 1998, which held that “. . . application to this case of sections 7611 and 7630 [of Family Code] does not deprive him of due process. . . [and] to issue a writ of mandate directing respondent Superior Court of Rivziside County to vacate its order denying Dawn’s motion for judgment on the pleadings and to enter a new order granting the motion”, which ruling > a resulted in appellant being forever excluded from a hearing to establish his rights as a parent and all parental rights appertaining thereto. - In the decision of to Michael H. et al. vy. Gerald D, (1989) 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91, 57 U.S.L.W. 4691, Justice Stevens cast a concurring and the deciding opinion based on his understanding that California Statute provided for reasonable visitation rights to be granted to any person, other than a parent, having an interest in the child’s welfare, and a decision in Rodney F, v Karen M. (1998) 61 Cal App.4th 233, and amended 61 Cal.App.4th 1131, (review denied Apr. 22, 1998), wherein the Appellate Court said, “That we are even stability we are preserving. . . . where all the parties know who is the biological father, there is no reason to assume the integrity of the ‘family’ will be in jeopardy if visitation is allowed.”, Jerry K. further applied to the trial court for visitation, in order to exhaust all avenues. On July 1, 1998, the Superior Court of Camiunme, County of Biverside, dic deny such motion for visitation. *. The judgment of the Supreme Court of the State of California granting the Appellee’s Writ of Mandate for judgment on the pleadings was filed on April 6, 1998. A notice of Appeal was sent to the Supreme Court of the State of California on July 3, 1998. This appeal is being docketed in this Court within 90 days from the judgment below. The -2- ee jurisdiction of this court is invoked under 28 U.S.C. section 1257. The provisions of 28 U.S.C. section 2403 may be applicable. CONSTITUTIONAL PROVISIONS AND STATUTES Constitution of the United States AMENDMENT XIV Section 1. [Citizenship - Due process of law - Equal protection. ] All persons born or naturalized in the United States, and bject to the jurisdiction thereof. are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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. California State Constitution § 7. Due process; Equal protection; Privileges and immunities (a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws; provided, that nothing contained herein or elsewhere in this Constitution imposes upon the State of California or any public entity, board, or official any obligations or responsibilities which exceed those imposed by the Equal Protection Clause of the 14th Amendment to the United States Constitution with respect to the use of pupil school assignment or pupil ; transportation. In enforcing this subdivision or any other =" provision of this Constitution, no court of this state may impose upon the State of California or any public entity, board, or official any obligation or responsibility with respect to the use of pupil school assignment or pupil transportation, (1) except to remedy a specific violation by such party that would also constitute a violation of the Equal Protection Clause of the 14th Amendment to the United Stztes Constitution, and (2) unless a federal court would be permitted under federal decisional law to impose that obligation or responsibility upon such party to remedy the specific violation of the Equal Protection Clause of the 14th amendment of the United States Constitution. (b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked. Family Code § 7540. Except as provided in Section 7541 , the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. § 7541. Use of blood tests to determine paternity (a) Notwithstanding Section 7540 , if the court finds that the conclusions of all the experts, as disclosed by the evidence based on blood tests performed pursuant to Chapter 2 (commencing with Section 7550), are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly. (b) The notice of motion for blood tests under this section may be filed not later than two years from the child's date of birth by the husband, or for the purposes of establishing paternity by the presumed father or the child through or by the child's guardian ad litem. As used in this subdivision, -4- “presumed father" has the meaning given in Sections 7611 and 7612. (c) The notice of motion for blood tests under this section may be filed by the mother of the child not later than two years from the child's date of birth if the child's biological father has filed an affidavit with the court acknowledging paternity of the child. (d) The notice of motion for blood tests pursuant to this section shall be supported by a declaration under oath submitted by the moving party stating the factual basis for placing the issue of paternity before the court. (c) Subdivision (a) does not apply in any of the following cases: (1) A case which reached final judgment of paternity on or before September 30, 1980. = (2) A case coming within Section 7613. (3) A case in which the wife, with the consent of the husband, conceived by means of a surgical procedure. § 7550. Short title This chapter may be cited as the Uniform Act on Blood Tests to Determine Paternity. § 7551. Order for genetic tests in civil proceeding involving paternity; “Genetic tests" In a civil action or proceeding in which paternity is a relevant fact, the court may upon its own initiative or upon suggestion made by or on behalf of any person who is involved, and shall upon motion of any party to the action or proceeding made at a time so as not to delay the proceedings unduly, order the mother, child, and alleged father to submit to genetic tests. If a party refuses to submit to the tests, the court may resolve the question of paternity against that party or enforce its order if the rights of others and the interests of justice so require. A party’ s oN refusal to submit to the tests is admissible in evidence in any proceeding to determine paternity. For the purposes of Gls dhaiae “genetic tests" means any genetic test that is generally acknowledged as reliable by accreditation bodies designated by the United States Secretary of Health and Human Services. § 7554. Effect of test results (a) If the court finds that the conclusions of all the experts, as disclosed by the evidence based upon the tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly. (b) If the experts disagree in their findings or conclusions, or if the tests show the probability of the alleged father's paternity, the question, subject to Section 352 of the Evidence Code, shall be submitted upon all the evidence, including evidence based upon the tests. § 7600. Citation of part This part may be cited as the Uniform Parentage Act. § 7610. Methods of establishing The parent and child relationship may be established as follows: (a) Between a child and the natural mother, it may be established by proof of her having given birth to the child, or under this part. (b) Between a child and the natural father, it may be (c) Between a child and an adoptive parent, it may be established by proof of adoption. § 7611. Presumption of paternity A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following <. i caacceaaieeceiaiainiiaiillidiaitiiaait eee (a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court. (b) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is truc: (1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempte¢ marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce. (2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation. (c) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: (1) With his consent, he is named as the child's father on (2) He is obligated to support the child under a written voluntary promise or by court order. (d) He receives the child into his home and openly holds out the child as his natural child. (c) If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is 4. the child's father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil Procedure. This subdivision shall remain in effect only until January 1, 1997, and on that date shall become § 7630. Persons who may bring action; When action may be brought (a) A child, the child's natural mother, or a man presumed to be the child's father under subdivision (a), (b), or (c) of Section 7611, may bring an action as follows: (1) At any time for the purpose of declaring the existence of the father and child relationship presumed under subdivision (a), (b), or (c) of Section 7611. (2) For the purpose of declaring the nonexistence of the (a), (2), or (c) of Section 7611 only if the action is brought witbin a reasonable time after obtaining knowledge of raternity of the child by another man may be determined in the same action, if he has been made a party. (b) Any interested party may bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed under subdivision (d) of Section 7611. (c) An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under Section 7611 or whose presumed father is deceased may be brought by the child or personal representative of the child, the State Department of Social Services, the mother or the personal representative or a parent of the mother if the mother has died or is a minor, a man alleged or alleging himself to be the father, or the personal representative or a parent of the alleged father if the alleged father has died or is a minor. An action under this subdivision shall be consolidated with a proceeding pursuant to Section 7662 if a proceeding has been filed under Chapter 5 (commencing with Section 7660). The parental rights of the alleged natural father shall be determined as set forth in Section 7664. § 7631. Action by man not presumed father to establish paternity Except as to cases coming within Chapter 1 (commencing with Section 7540) of Part 2, a man not a presumed father may bring an action for the purpose of declaring that he is the natural father of a child having a presumed father under Section 7611, if the mother relinquishes for, consents to, or proposes to relinquish for or consent to, the adoption of the child. An action under this section shall be brought within 30 days after (1) the man is served as prescribed in Section 7666 with a notice that he is or could be the father of the child or (2) the birth of the child, whichever is later. The commencement of the action suspends a pending proceeding in connection with the adoption of the child until a judgment in the action is final. STATEMENT OF THE CASE RAISING THE FEDERAL QUESTION The appellee requested a judgment on the pleadings in the Trial Court. The trial court found that appellant had due process liberty interests in establishing a relationship with his child as he has “promptly come forward and demonstrated a full commitment to his parental responsibilities.” The trial court found that in a balance of “the interests of the father against the interests of the state”, since father and mother were cohabiting at time of conception, that conclusive presumption of paternity did not fall to the husband and “it can be implied -9- that the legislature perceived a decreased threat to the family stability.” The court ruled the appellee’s “Motion for Judgment on the Pleadings is denied” and granted blood tests and further hearing for child custody and The appellee petitioned the Appellate Court for a Writ of Mandate for Judgment on the Pleadings and was denied. | The appellee petitioned the Supreme Court of the State of Califomia for the Writ of mandate, which was granted on April 6, 1998, holding that the appellant had no due process rights to establish paternity, petition for child custody or visitation hearings, and thereby terminated all parental rights of the biological father. The appellant argued his due process liberty interests and his claims of equal protection under the law and Constitutions of the State of Califomaia and the Constitution of the United States. The Supreme Court considered and rejected appellant’s constitutional claims and granted a Writ of Mandate for Judgment on the Pleadings in a split decision, the question of due process claims troubling two of the Justices in a written dissent. Around November of 1994, Jerry K. and Dawn D. met on jury duty and became friends. On or about January 6, 1995, Dawn D. moved in and began cohabiting with Jerry K. There was talk of their getting married as soon as they were able and of her getting pregnant and having a child. There was a mutual agreement. Dawn D. announced she was pregnant in March of 1995 after a pregnancy test. On April 8, 1995, Dawn D. moved out of Jerry K.’s home and moved in with her parents, going back to her husband later. Jerry K. immediately began negotiations for -10- ee parental rights to visitation and a custody share with the as yet unborn child, promising support both financially and emotionally. Negotiations broke off and Jerry K. filed a Summons and Petition for Paternity on or about August 17, 1995. Negotiations continued between attomeys. The child was born on November 9, 1995. An agreement was reached to schedule a blood test to establish paternity and Dawn D., her husband and the child showed up on May 1, 1996 for a blood test. Instead the husband physically attacked Jerry K. and charges were filed. Negotiations broke off. A court date was set, and a hearing was held. Dawn D. was relying upon Family Code section 7540 which states that “the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.” The court found that Dawn D. was separated and not cohabiting with her husband during conception; hence, the conclusive presumption was not applicable. The trial court found that Jerry K. had preserved his interests in the child, came forward promptly and “demonstrated a full commitment to his parental responsibilities.” The trial court found that there had been an agreement “reached for visitation and payment of child support.” The trial court found Jerry K. had due process rights and that in balancing the individual interests with the state’s interests, that “the legislature perceived a decreased threat to the family stability if a wife is not cohabiting with her husband at the time of conception.” The trial court ruled on October 28, 1996 that Judgment on the Pleadings was denied, that Jerry K. had preserved his due process liberty interests and could attempt to establish paternity through a genetic blood test, with further hearings scheduled upon the completion of the tests. The appellee filed for a Writ of Mandate with the AR 4* District Court odf Appeal of the State of California and requested a Stay, which Stay was granted. Appellant responded, the Writ was denied. Appellant applied to the trial court for an order for the genetic blood tests to be taken and for a hearing to be scheduled. Test results reflected a 98.6% probability of patemity. Appellee applied for a Writ of Mandate and a Stay was granted. Appellant, Jerry K., argued that he had a due process liberty interest and that the California statutory scheme is unconstitutional because it denies him due process hearing and/or equal protection as a father. On April 6, 1998, the Supreme Court granted the Writ of Mandate for Judgment on the Pleadings and held that Jerry appellee the unilateral ability to keep Jerry K. from establishing a relationship with the child. Based upon that behavior, Jerry K. was prevented from getting even getting a hearing to allow contact or to establish a relationship. In Michael H. et al, vy Gerald D, (1989) 491 U.S. 110, 109 S.Ct. 2333, Justice Stevens believed that visitation was available to any person with an interest in the child. In Rodney F. v Karen M. (1998) 61 Cal App.4th 233, and amended 61 Cal App.4th 1131, the Second District Appellate Court stated that visitation is appropriate in circumstances such as these. Jerry K. filed an Order to Show Cause for visitation, and was denied on July 1, 1998. The last avenue for relationship with his child was exhausted. REASONS FOR GRANTING _ THE QUESTIONS ARE SUBSTANTIAL a. Equal Protection The equal protection clause of the Constitution requires that legislation operate equally upon all members of a group, in this case upon biological parents. However mothers are afforded almost total control of the parental choice, being able to choose and dischoose the father at allows the mother to deny the biological father entrance to a relationship with his child based simply on her unwillingness to allow access to the father casts an unusual burden and impossible burden on the father and the child to have a relationship with each other. Mother can simply refuse marriage, or simply deny access to a father so he may not take the child into his home and hold the child out as his own. The mother in the instant case argued that the state has an interest in upholding the child’s welfare and stability of a marital family. In the dissent Justice Chin examined these issues and found mother’s argument lacking. “{O]n the facts of this case, they do not justify the state’s categorical that Jerry’s exclusion from the child’s life is warranted and its refusal to afford Jerry a hearing on the matter.” In order for the state’s interests to override a personal interest there must be an overwhelming state interest that needs to be preserved.. In Caban v Mohammed (1979) 441 U.S. 380, 99 S.Ct. 1760, the Court determined that the sex based distinction bore no substantial relationship to any important state interest, and as such, was in violation of Constitutional equal protection principles, in an adoption scheme that required only a mother’s consent for an adoption and not a father’s. It is <0. similar here, the mother is invested with a measure of control and unilateral veto power upon paternity by simply | withholding her hand in marriage or by saying no to father’s access to the child for no reason other than her own personal choice, be it invidious, vindictive or magnanimous. Father is afforded no like control or exercise. Mother need not show detriment to the child by the relationship, nor the best interests of the child in legislation clearly discriminates against fathers based on their gender and does not hold mothers to equal standards. When fundamental rights are involved even a rational relationship between the regulation and a permissible legislative purpose may not be sufficient to uphold the regulation. Such regulation will stand only if it is “necessary to promote a compelling governmental interest.” Shapiro y Thompson (1969) 394 U.S. 618, 89 S.Ct. 1322. In a case where the biological father has come forward promptly to accept his responsibilities, mother’s unilateral reluctance to prevent such relationship does not : rise to the level of an overwhelming state interest in preventing such a relationship. In fact, it would seem that it would be quite the contrary. The state has found a well of support for the child, the very basis for the paternity | statutes in the first place - that the child have a mainstay of support both financial and emotional that the child may grow well in society and not be a drain on the Public dole or resources. It is clear that the court and the California based on sex. In fact it encourages mother when she docs not want to play fairly with father or child. She only needs to refuse biological father access and substitute some non- biological man in his place to prevent biological of his paternal rights and the child of a biological father. -14- The statutory scheme of the California Family Code is the source for possible great harm to the child. Mother can unilaterally deny the child a natural father. She can substitute another man in his place, a man who does not necessarily have the best interests of the child in mind. He can be a party who only wishes to visit vindictive or misguided harm and/or punishment on the natural father. He can be substituted and not be able or willing to offer the financia! or emotional support that the child needs. Mother can use this substitute for the purpose of displacing natural father and later opt for a blood test of this substitute and disqualify him as father and thereby create a totally legally fatherless child who is now denied forever the support necessary for healthy growth. Further mother can set out on a path of fraud for the fathers - natural and selected - and the child for her own selective In a similar type scheme of unilateral control over a child by a mother under Georgia law re: adoption, Quilloin y Walcott (1978) 434 U.S. 246, 98 S.Ct. 549, Georgia law permits a father veto power over unilateral control and decision making by only petitioning the court to legitimate his child, the very thing that is lacking in the California statutory scheme. In fact, as in this case, the mother holds all the power to prevent such legitimation by the natural father. There is no basis for the underlying assumption that only a father who has undertaken the bonds of marriage or who has provided a common home may have a natural parental interest and so constitutionally protected liberty interests. In fact a father who comes forward, and in this case even before the birth of the child, to establish paternity, accept the obligations financially for the child and attempt to gain a custodial or a, 2 visitation position w th the child is demonstrating his concern and interest. In the instant case there can be no plea that the extant family needs to be protected by the fiction of husband-dad vs bio-dad in that the biological father was cohabiting with mother at time of conception and he came before birth of the child. There is no overwhelming state interest to preserve this kind of marriage when, as the trial court found, mother was not living with her husband at time of conception. The Quilloin Court, supra, premised its decision to forever terminate biological father’s rights on the fact that father never came forward for over a period of eleven years to preserve his interest or accept his where the father never has come forward to participate in the rearing of his child, nothing in the Equal Protection forward, promptly and before the child was bon. So there The California statutory scheme can be and is used in this case to interfere with the parental relationship So necessary for the proper development of the child and -16- as such is contrary to the very spirit of the Uniform Parentage Act. The California statutes therefor are contrary to both of these interests. They are in direct contravention to the establishment of the parent-child relinquishes or proposes to relinquish or consent to an adoption. The Trial Court granted to the Jerry K. the claim of cohabitation with her husband at the time of conception and the Supreme Court did not challenge the findings. into an agreement at one point which she then capriciously decided not to honor making only the court an available remedy to Jerry K to establish a relationship with his child. There was nothing more Jerry K. could have done, as the Trial Court found when it granted Jerry K.’s petition. rk The due process clause of the Fourteenth Amendment to the Constitution of the United States provides that no “state shall deprive any person of life, liberty, or property, without due process of law. . (U.S. Constitution, 14% Amendment section 1) Of course there is more to due process than procedure, there are substantive protections of certain liberties from state intervention except for compelling reasons. There are no such compelling reasons here. In fact, in the Michael H. et al. vy Gerald D, (1989) 491 U.S. 110, 109 S.Ct. 2333, Justices O’Connor and Kennedy expressed the view that no single mode of historical analysis, as imposed by Justice Scalia in his opinion, should be imposed when identifying due process liberty interests. Justice Stevens found that due process had not been violated by the statutory scheme of irrebutable presumption of paternity because visitation was available to any person, other than a parent, having an interest in the child’s welfare (which visitation is not available, but was based on a mis-reading of the California statutory scheme.) Justice Brennan, joined by Justices Marshall and Blackmun, expressed the view that the statutory scheme of the presumption statute was unconstitutional and the flaw in the statute was the kind that procedural due process was designed to correct and violated procedural due process rights. Justice White expressed the view that an unwed father who has demonstrated a sufficient commitment to his paternity has a protected liberty interest in a relationship with his child, that the presumption statute of the California scheme was not justified by the states interests and that procedural due process rights were violated by the denial of any meaningful opportunity to be heard in order to establish patemity. The score is 7-2 that there may be some due process rights involved. It follows that this case stands for the position that the United States Supreme Court will not - -18- iniaesiiimnaninenadiiaiaieihaiiaiaailiiiiiaiiiiiaiiida | foreclose the possibility that a natural father might ever have an interest protected by the Federal Constitution in his relationship with his child. Only due process was parent’s legal relationship with the child. “The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.” (Uniform parentage Act section 2, 9B U.L.A. 295, 296.) This position over-rides any State statutory scheme to the opposite in spirit and in fact. Since the advent of the Uniform Parentage Act many statutes that discriminated against the children of unwed parents have been ruled unconstitutional. (Harry D. Krause, The Uniform Parentage Act, 8 Fam. L.Q. 1, 6- 8 [1974]) Within a year after the Michael H. case, supra, the California Courts refused to apply a conclusive presumption to prevent natural fathers to establish paternity in In Re Melissa G, (1989) 213 Cal App.3d 1082, 261 Cal.Rptr. 894, on Constitutional grounds and in In Re the Guardianship of Ethan S, (1990) 221 Cal.App.3d 1403, 271 Cal.Rptr. 121, on grounds of equitable estoppel. In 1990, the law of conclusive presumption was changed to allow for parent-child Jationshi In the instant case there would have been a parent- child relationship if the natural father had been allowed a court hearing to establish his paternity and petition for such a custodial position. It would have existed de facto had mother not unilaterally decided to prevent such. After such unclean hands prevention, mother relies on the absence of this relationship to prevent the establishment of -19- paternity. The court allowed such unclean hands to serve as a bar to a court hearing. The fundamental right to a day in court to establish such a fundamental right as a paternal relationship is more important than any unilateral capricious maternal desire to prevent father-child relationship. Father has a procedural due process right that has been denied and must be reinstated. “When an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘com[ing] forward to participate in the rearing of his child,” Caban, supra, his interest in personal contact with his child acquires eee ee Reform (1977) 431 US. 816, 97 S.Ct. 2094. ‘Quoting Wisconsin v Yoder (1972) 406 U.S. 205, 92 S.Ct. 1526. “The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development. If he fails to do so, the Federal Constitution will not automatically compel a state to listen to his opinion of where the child’s best interests lic.” Lehr y Robertson 463 U.S. 248, 103 S.Ct. 2985. Thus it is obvious that the important question of the unwed father’s rights regarding his child has substantial protection under the due process clause. The California Courts have recognized a father’s | “The private interest here, that of a man in the children he has sired and raised, undeniably i -20- warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come{s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.’ Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J., concurring). "The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed ‘essential,’ Meyer v, Nebraska, 262 U.S. 390, 399 (1923), ‘basic civil rights of man,' Skinner y. Oklahoma, 316 U.S. 535, 541 (1942), and '[rlights far more precious ... than property rights, May v, Anderson, 345 U.S. 528, 533 (1953). ‘It is cardinal with us that the custody, care and nurture of the child reside first in the neither supply nor hinder.' Prince v. Massachusetts, 321 U.S. 158, 166 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v, Nebraska, supra., at 399, the Equal Protection Clause of the Fourteenth Amendment, supra., at 541, and the Ninth Connecticut, 381 U.S. 479, 496 (1965) (Goldberg, J., concurring). “Nor has the law refused to recognize those family relationships unlegitimized by a marriage -21- ceremony. The Court has declared unconstitutional a state statute denying natural, but illegitimate, children a wrongful-death action for the death of their mother, emphasizing that such children cannot be denied the right of other children because familial bonds in such cases were often as warm, enduring, and important as those arising within a more formally organized family unit. Levy v, Louisiana, 391 U.S. 68, 71-72 (1968). ‘To say that the test of equal protection should be the “legal” rather than the biological relationship is to avoid the issue. For the Equal Protection Clause necessarily limits the authority of a State to draw such “legal” lines as it chooses.’ Glona vy. American Guarantee Co., 391 U.S. 73, 75-76 (1968). In re Kelvin M. (1978) 77 Cal._App.3d 396, 143 Cal.Rptr. 561 California has recognized a genetic father’s duc _ process rights, Johnson v Calvert (1993) 5 Cal.4th 84, Adoption of Kelsey S., (1992) 1 Cal.4th 816. Here the natural father is being prevented from even having his day in court, procedural due process rights, to attempt to establish his parental status and accept the rights and responsibilities of fathering a child. Where interests of such Constitutional importance are involved, the very fundamental rights of a father and child to a father-child relationship, there is no foundation for a state to prevent such, and certainly not in such instances as this. c. Unilateral power is not equal or due process Under the California statutory scheme the natural father of a child has no rights unless the mother decides to allow it. Mother can even give the child away to others -22- without his consent and even over his objections with no hearing, as mother has, in essence, done here by excluding Jerry K. and giving the child to her husband. It is not necessary to recite the litany of abuses that can arise from this ability for mother to exercise unilateral power through anger, vindictiveness, fraud, or even misguided conceptions of good intentions. In the Adoption of Maric R. (1978) 79 Cal_App.3d 624, 145 Cal Rptr. 122, the trial court found that the presumed father constructively received the baby as his own, although actual receipt of the baby, whom the presumed father had never seen, was prevented by the mother. The Court of Appeal reversed since there was no actual contact, however minimal, between the man claiming to be the father and the child holding that absent this minimal contact, there can be no receipt, constructive or otherwise, into the home of a purported father, despite the fact that his attempts at contact with the child were refused by the mother. In Jermstad y, McNelis (1989) 210 Cal.App.3d 528, 258 Cal. Rptr. 519, the trial court allowed the father access to his child and stated orally that the father had equal rights with the mother. On that basis, it awarded him custody. If the trial court . . . deems it to be in the best interest of the child it may grant sufficient custody to the natural father to pei mit him to receive the child into his home and openly hold out the child as his natural child. This will result in the natural father acquiring the status of a presumed father... Despite the wishes of the mother, under the Uniform Parentage Act the natural father may acquire the status of a presumed father. (at p. 543). Here we have a isther who is prevented from receipt of the child into his home which the Supreme Court uses to deny him any parental rights at all. However, with -23- a perusal of the above decisions, his coming forward promptly, as the trial court found, should entitle him to constructive receipt and as such give him standing under the federal Uniform Parentage Act. Several states have dealt with this problem and have decided that a mother does not have a unilateral right to prevent a father from a relationship with his child and then rely on that prevention to deny him status as a father, that fathers have Constitutional rights whether mothers like it or not. In Idaho, in In Re Steve B.D., (1986) 112 Idaho 22, 730 P.2d 942, the Supreme Court of that state found two constitutional rights of unwed fathers: to enjoy established relationships with their children and to form the inchoate interest in establishing a relationship could not be denied by the state. In Georgia, the Georgia Supreme Court concluded that unmarried fathers have a constitutionally protected opportunity interest to develop a relationship with their children, that this interest begins at conception and probably lasts through the minority of the child. In Re Baby Girl Eason, (1987) 257 Ga. 292, 358 S.E.2d 459. In Louisiana, the Louisiana Supreme Court considered the question of a father’s Constitutional guaranteed right in In Re Adoption of B.G.S. (1990) 556 So.2d 545. The Court held that “a fully committed unwed father of a newborn child has a Constitutionally protected interest in his opportunity to develop a mutually beneficial emotional or psychological bond with his child” (at 550) and rejected the interpretation of Lehr (supra) and Stanley y. Illinois (1972) 405 U.S. 645 that only an unwed father with a developed relationship with his child may have a constitutionally protected interest in parenthood, that, for -24- the father of a newborn, the requirement is “coming forward to participate in the rearing of his child” (quoting Lehr, 463 U.S. at 261 and Caban, 441 U.S. at 392.) The court further found further, applying the test of Mathews y. Eldridge (1976) 424 U.S. 319, that the “risk of an erroneous deprivation of such an interest is not insubstantial, given the statute’s complete reliance upon the natural mother to decide whether the natural father shall be notified or consulted prior to the termination of his interest.” (In Re Adoption of B.G.S, (1990) 556 So.2d 545, 553.) In New York, in (1990) 76 N.Y.2d 387, 559 N.E.2d 418, 559 N.Y.S.2d 885, cert.den. 111 S.Ct. 517, the court found that a living together arrangement was rejected since it “can easily be used to block the father’s rights. But even more significantly, it permits adoption despite the father’s prompt objection even when he wishes to form or actual has attempted to form a relationship with the infant that would satisfy the State as substantial, continuous and meaningful by any other standard.” (Id. at 405, 559 N.E.2d at 426, 559 N.Y.S.2d at 863) the court struck down the statute as unconstitutional. Here Jerry K. has been prevented from asserting his rights and relationship with his child merely be a unilateral decision of the mother to deny Jerry access to his child, and, such action is supported by statute. His Constitutional rights to Due Process and Equal Protection are denied by the unclean hands of the mother. At least 20 States believe that fathers in Jerry K’s position are entitled to some form of hearing before they are excluded from the lives of their biological children. (RAS. v. LBV. (Ariz.Ct-App. 1991) 817 P.2d 37; Willmon y, Hunter (Ark. 1988) 761 S.W.2d 924; R McG. 25. vis W. (Colo. 1980) 615 P.2d 666; Weidenbacher v. Duclos (Conn. 1995) 661 A.2d 988; Green y, Long (Del. Fam.Ct. 1988) 547 A.2d 630; Johnson v, Studley-Preston (Idaho 1991) 812 P.2d 1216, 1219-1221; Simcox y. Simeox (Ill. 1989) 546 N.E.2d 609, 612; Jn re Marriage of Slayton (Ill_App.Ct. 1996) 660 N.E.2d 562; KS. v. RS. (Ind. 1996) 669 N.E.2d 399; Smith v, Jones (La.CtApp. 1990) 566 So.2d 408; Finnerty v. Boyett (La.Ct.App. 1985) 469 So.2d 287; Turner v. Whisted (Md. 1992) 607 A.2d 935; In re Paternity of B.J.H. (Minn.Ct._App. 1998) 573 N.W.2d 99; Kelly y, Cataldo (Minn.Ct_App. 1992) 488 N.W.2d 822, 826-828; Jy v. Harrington (Miss. 1994) 644 So.2d 1218; J ML. y. C.L (Mo.CtApp. 1976) 536 S.W.2d 944, 945-947; Matter of Paternity of Adam (Mont. 1995) 903 P.2d 207; ME _y. NE. (NJ. Super.Ct. App.Div. 1991) 599 A.2d 1297, Richard Wy, Roberta Y (N.Y. App.Div. 1995) 629 N.Y.S.2d 512; Gorton y, Gorton (N.Y. Fam.Ct. 1984) 475 N.Y.S.2d 767; Gregory v, McLemore (Okia.Ct-App. 1995) 899 P.2d 1189; Jn Interest of J.W.T. (Tex. 1994) 872 S.W.2d 189; McDaniels y, Carlson (Wash. 1987) , 738 P.2d 254; In re Paternity of T.R.B. (Wis.Ct-App. 1990) 454 N.W.2d 561; see also C.C. vy. A.B. (Mass. 1990) 550 N.E.2d 365, 372, fn. 10 (leaving open possibility of action “where, due to the actions of the mother, (the natural father] ha[s} not yet formed a substantial relationship with the child”); Stone, supra, 474 S.E.2d at page 566 (leaving open possibility of action where natural father “proves that he would share in the care of, responsibility for, and support of the child but for the mother’s ion”). of the Justices of the Supreme Court have been among the main believers in due process rights - Justices Breyer, Suter and Kennedy, in their own right. -26- Justice O’Connor wrote the opinions finding that a statute of limitations re: paternity issues are unconstitutional. Justice Ginsberg has been primary in the rights of Equal Protection. CONCLUSIONS constitutional liberty interests of equal protection and due process that are at stake here. These questions do not only involve the interests of the father herein but also the liberty interests of the child, whose interests are not being represented herein except by the natural father. All over this country, the plight of fatheriess children and the absence of fathers from the homes and lives of their children are being decried. California has a problem of epidemic proportions in the amount of unwed births per year, of children going to bed in homes absent of their natural father. And this problem is not much less in other Cities and states in the United States today. Here we have a father who has come forward to accept the rights and responsibilities of fatherhood and he is being prevented from doing so by the unilateral capricious and fickle decision of mother. Mother is being supported by a statutory scheme that not only prevents the natural father from a relationship with his child - equal protection but also even prevents him from a day in court - procedural due process. In fact the only way a natural father who has been denied access to the courts to bring an action for the purpose of declaring that he is the natural father of a child having a presumed father under section 7611 of the Family Code is if the mother relinquishes for, consents to, or proposes to relinquish or consent to, the adoption of the child. Certainly this is a most blatant statutory scheme for -27- the denial of due process, lack of equal protection under the law, and lack of right to privacy in procreation and life. There have been a few overwhelming Supreme Court cases on the issue of Due Process - Pickett y Brown (1983) 462 U.S. 1, and Clark y Jeter (1988) 486 U.S. 456. California used to recognize due process rights -InRe Angelia P, (1981) 28 Cal.3d 908, and In Re Roger S. (1977) 19 Cal. 3d 921. Equal Protection has been important to this Court in Harris y Mc Crae (1980) 448 U.S. 297 and Plyler vy Doe (1982) U.S. 202. In California, a mother was not allowed to lose her child to a married father under the exact reverse circumstances in Brasher v Brasher (1967) 253 Cal,App.2 867. Susan v Priest (1976) 18 C The petition for a Writ of Certiorari .should be granted. Dated: July 4, 1998 Respectfully submitted, — George Mc Gill, Esq. 120 Birmingham Dr., Suite 240 Cardiff-by-the Sea, CA 92007 (760) 436-1146 -28- Henry James Koehler [TV (Of Counsel) Law Offices of Henry James Koehler IV 9454 Wilshire Blvd., Suite 207 Beverly Hills, CA 90212 Steven F. Wingfield (Of Counsel) 8241 La Mesa Blvd. La Mesa, Ca 91941 (619) 238-1568 -30- Appendix A et. Appendix “A” Title: JERRY KRCHMAR v DAWN ELIZABETH DEZERN Date: 10/28/96 D-157628 RULING ON SUBMITTED MATTER Defendant and her husband, Frank Farkas were married in June 1989. In early January, 1995. Defendant separated from her husband and began living in a household with Plaintiff. In February 1995, Defendant became pregnant. In April, 1995, Defendant moved out of the home with Plaintiff and recommenced living with her husband. On August 18, 1995, Plaintiff filed the complaint in this action to establish his relationship with an as yet unborn child. A child was born to Defendant on 11/9/95, and that child is residing, and has resided, with Defendant and her husband since that time. Between December, 1995, and April, 1996, the parties through counsel, agreed to participate in paternity testing, although Defendant now refuses to voluntarily test for paternity. On 7/18196 Plaintiff filed a Notice of Motion for child custody, visitation and for blood testing.. On 8/27/96, Defeudant filed a Notice of Motion for Judgment on the Pleadings. The matters were argued on 10/8/96 and the matter deemed submitted. Plaintiff s counsel made a timely request for a Statement of Decision. -32- The gravamen of Defendant's Motion for Judgment on the Pleadings's that Plaintiff has no standing to allege paternity since her husband, Frank Farkas, is a presumed father. "Family Code ° 7540. Presumption arising from birth of child during marriage Except as provided in Section 7541 , the child of a wife cohabiting with her husband, who is not impoteni or sterile, is conclusively presumed to be a child of the marriage." The presumption under this code section is not applicable. There is no evidence that Defendant's husband was impotent or sterile at the time the child was conceived, however, the court finds that Defendant was not cohabiting with her husband at the time the child at issue was conceived. It is clear that Defendant and her husband had separated and that Defendant was cohabiting with Plaintiff during the time that the child was conceived. Family Code Section 7541 applies to use of blood tests to rebut the presumption under Family Code Section 7540. "Family Code * 7541. Use of blood tests to determine paternity (a) Notwithstanding Section 7540, if the court finds that the conclusions of all the experts, as disclosed by the evidence based on blood tests performed pursuant to Chapter 2 (commencing with Section 7550), are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly. a. (b) The notice of motion for blood tests under this section may be filed not later than two years from the child's date of birth by the hushand, or for the purposes of establishing paternity by ‘he presumed father page two D-157628 or by the child's guardian ad litem. As used in this subdivision, “presumed father" has the meaning given in Sections 7611 and 7612. (c) The notice of motion for blood tests under this section may be filed by the mother of the child not later than two years from the child's date of birth if the child's biological father has filed an affidavit with the court acknowledging paternity of the child. (d) The notice of motion for blood tests pursuant to this section shall be supported by a declaration under oath submitted by the moving party stating the factual basis for placing the issue of paternity before the court. (e) Subdivision (a) does not apply in any of the following cases: (1) A case which reached final judgment of paternixy on or before September 30, 1980. (2) A case coming within Section 7613. (3) A case in which the wife, with the consent of the husband, conceived by means of a surgical procedure." -34. If the presumption of Family Code Section 7540 does not apply, then paternity must be determined pursuant to the Uniform Parentage Act, commencing at Family code Section 7600. ~ Family Code Section 7611 provides for a presumption of paternity in certain circumstances. " 7611. Presumption of paternity A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions: (a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court. (b) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: (1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce. (2) If the attempted marriage is invalid without a _. court order, the child is born within 300 days after the termination of cohabitation. (c) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: 1) With his consent, he is named as the child's father on the child's birth certificate. (2)He is obligated to support the child under a written voluntary promise or by court order. (d) He receives the child into his home and openly holds out the child as his natural child. (e) If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that be is the child's father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil Procedure. This subdivision shall remain in effect only until January 1, 1997, and on that date shall become inoperative. (Bolding added)." pagethree D-157628 In the case at hand, Defendant's husband is a presumed father pursuant to Family Code Section 7611 (a) and (d), «se the child was born while Defendant and her husband were married, and Mr. -36- Farkas has received the child into his home and held out the child as his natural child. It does not appear that Plaintiff is in any of those classes defined under FC 7611, and therefore cannot be classified as a presumed father. The presumptions raised (with the exception of that presumption under FC § 7540) are presumptions affecting the burden of proof, and may be rebutted by clear and convincing evidence. "Family Code § 7612. Rebuttal of paternity ‘ory: th ‘ (a) Except as provided in Chapter 1 (commencing with Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2 or in Section 20102, a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate. action only by clear (b) If tvvo or more presumptions arise under Section 7611 which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. (c) The presumption under Section 7611 is rebutted by a judgment establishing paternity of the child by another man.". Family. Code Section 7630 provides control over who may bring an actiop to establish paternity. “ 7630. Persons who may bring action; When action -37~ may be brought (a) A child, the child's natural mother, or a man presumed to be the child's father under subdivision (a), (0), or (c) of Section 7611, may bring an action as follows: (1) At any time for the purpose of declaring the existence of the father and child relationship presumed under subdivision (a), (b), or (c) of Section 7611. (2) For the purpose of declaring the nonexistence of the father and child relationship presumed under subdivision (a)' (b), or (c) of Section 7611 only if the action is brought within a reasonable time after obtaining knowledge of relevant facts. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party. (b) Any interested party may bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed under subdivision (d) of Section 7611. (c) An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under Section 7611 or whose presumed father is deceased may be brought by the child or personal representative of the child, the State Department of Social Services, the mother or the personal representative or a parent of the mother if the mother has died or is a minor, a man alleged or alleging himself to be the father, or the personal -38- representative or a parent of the alleged father if the alleged father has died or is a minor. An action under this subdivision shall be consolidated with a proceeding pursuant to Section 7662 if a proceeding has been filed under Chapter 5 (commencing with Section 7660). The parental rights of the alleged natural father shall be determined as set forth in Section 7664." page four ~D-157628 Defendant cites the court to Michael M. V. Giovanna F,, (1992) 5 Cal. App.4th 1272, in support of her position. The facts in that case are somewhat similar to those in this case. In Michael M. V. Giovanna F.,, In that case the child was conceived by the mother and biological father prior to the mother marrying her husband. Int the present case the child was conceived while Defendant and her wife were separated after marriage. Defendant correctly cites a headnote in In Michael M, V, Giovanna F., in its finding that under what is now Femily Code Sections 7630 & 7611, the Plaintiff had no standing to sue for a declaration of paternity, since there was another presumed father and Plaintiff had been unable to take the child into his home and hold it out as his own. Defendant,.however, has apparently failed to read the text of the opinion in that case. The court in In Michael M. V. Giovanna F, stated "We therefore hold that where unwed parents conceive, and the -39- mother marries another before the birth of the child, the biological father’s substantive due process right to a relationship with his child requires that he be allowed standing under the UPA to attempt to establish his paternity of the child, so long as he has promptly taken sufficient steps to preserve his interest." is This due process issue was also addressed in the context of an adoption case, relative to the rights of a non-presumed parent to object to an adoption. The California Supreme Court in Adoption of Michael H.. (1995) 10 Cal.4th 1043, 1052, restated its holding in Adoption of Kelsey S. (1992) 1 Cal. 4th 816 in stating “that an unwed father who has no statutory right to block a third party adoption by withholding consent may nevertheless have a constitutional right to do so under the due process and equal protection clauses of the Fourteenth father's constitutional interest is merely inchoate (Lehr v. Robertson (1983) 463 U.S. 248, 261-263 [77 LEd.2d 614, 626-628, 103 S.Ct. 2985]) and does not ripen into a constitutional right that he can assert to prevent adoption unless he proves that he has “promptly come[] forward and demonstrated] a full commitment to his parental responsibilities..." (Kelsey S., supra, I Cal. 4th 816, 849.) It is hard to imagine what else the Plaintiff could have done under these circumstances to -40- “preserve his interest" in this case and to prove that he has" promptly come forward and demonstrated a full commitment to his parental responsibilities". Piaintiff filed the within action to determine parentage prior to the birth of the child. Once he learned that the child was born, he began negotiations with Defendant for blood testing, payment of child support and visitation. It would appear from correspondence between counsel that an agreement had been reached for visitation and payment of child support. It also appears that Plaintiff took a parenting class which was completed on 1217/95 in preparation for the birth of the child and his anticipated parental duties. The analysis does not end there however. After determining that the defendatn has due process rights, the court must then balance the interests of the father against the interests of the state. The state has a continuing interest in the welfare of the child and in “familial stability" (citations omitted) Michael M. V. Giovanna F.. supra. In the case at hand, the child was conceived while Defendant and her husband were living separate and apart, and while the Defendant pregnant, she recommenced living with her husband, apparently with the knowledge that she was pregnant As noted earlier, this is not a situation that falls under the conclusive presumption of Family Code Section 7540. Certainly under those circumstance, the legislature has indicated an intention to page five D-157628 -41- place a strong emphasis on family stability, which would allow parentage to be challenged only in exceptional circumstances by someone other than the husband and wife. Since Family Code Section 7540 applies only “to a child of the wife cohabiting with her husband", it can be implied that the legislature perceived a decreased threat to the family stability if a wife is not cohabiting with her husband at the time of the conception. Under these circumstances the court finds that Plaintiff should be allowed to attempt to establish that he is the biological father of the minor child. THE COURT RULES: 1. Defendant's Motion for Judgment on the Pleadings is denied. 2. Plaintiffs Motion for Blood Tests is granted. Each party and the minor child shall participate in parentage testing through the Long Beach Genetics,. testing and communicate those arrangements to counsel for Defendant. Plaintiff shall advance the costs of the testing subject to allocation at subsequent hearing or time of trial. 3. Further hearing on Plaintiffs Motion for child -42- custody, visitation and attorney's fees and costs is continued to January 3, 1997 at 7:30 a.m. in Dept F3. 4. The clerk of the court is directed to mail a copy of this Ruling on Submitted Matter/Statement of Decision to counel. MINUTES OF SUPERIOR COURT Appendix B -45- Filed 4/6/98 IN THE SUPREME COURT OF CALIFORNIA DAWN D., Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Riverside Respondent; JERRY K., Real Party in Interest. S$060966 Ct. App. 4/2 E019631 Super. Ct. No. D-157628 In this case we determine whether the presumption -46- created by Family Code section 7611' and the standing Family Code section 7611 provides: “A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with section 7540) or Chapter 3 (commencing with section 7570 [establishment of paternity by voluntary declaration]) of Part 2 or in any of the following subdivisions: [{] (a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court. [J] (b) Before the child’s birth, he and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: (Y] (1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its terminaticn by death, annulment, declaration of invalidity, or divorce. [{] (2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation. [{] (c) After the child’s birth, he and the child’s natural mother have married, or attempted to marry, each other by a marriage (continued...) -47- rule embodied in section 7630' constitutionally may be applied to preclude an (...continued) solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: [{V (1) With his consent, he is named as the child’s father on the child’s birth certificate. [{] (2) He is obligated to support the child under a written voluntary promise or by court order. [{] (@) He receives the child into his home and openly holds out the child as his natural child. [{] (e) If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is the child’s father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil Procedure. This subdivision shall remain in effect only until January 1, 1997, and on that date shall become inoperative.” (Italics added.) All further statutory citations are to the Family Code unless otherwise specified. Section 7630, subdivision (a), provides: “A child, the child’s natural mother, or a man presumed to be the child’s father under subdivision (a), (b), or (c) of Section 7611, may bring an action as follows: [J] (1) At any time for the purpose of declaring the (continued...) -48- alleged biological father from establishing his paternity of a child bor during the mother’s marriage to another man. The husband in this case is presumed to be the child’s natural father, as the child was bom during the marriage (§ 7611, subd. (a)) and he has received the child into his home and openly holds out the child as his natural child (§ 7611, subd. (d)). Because, however, the husband and wife were not cohabiting at the time of conception, the presumption is not conclusive. (See, e.g., Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1114; City and (...continued) | existence of the father and child relationship presumed under subdivision (a), (b), or (c) of Section 7611. [§] (2) For the purpose of declaring the nonexistence of the father and child relationship presumed under subdivision (a), (b), or (c) of Section 7611 only if the action is brought within a reasonable time after obtaining knowledge of relevant facts. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party.” -49- County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1915; § 7540.) The alleged biological father does not meet any of the statutory criteria for presumed fatherhood. He relies, instead, on an asserted constitutional liberty interest, protected as a matter of substantive due process, not to be denied the opportunity to establish a parental relationship with the child. We conclude the alleged biological father in this case has no constitutionally protected liberty interest defeating California’s statutory presumption favoring the husband. FACTS AND PROCEDURAL POSTURE Our recitation of facts is drawn from the trial Section 7540 provides: “Except as provided in Section 7541, the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.” -50- court’s findings and the parties’ pleadings. Dawn D. and her husband, Frank F., were married in June 1989. In early January 1995 Dawn separated from her husband and began living with Jerry K. Dawn became pregnant the following month. In April 1995 she moved out of Jerry’s household and returned to her husband. In August 1995 Jerry filed the complaint in the present action to establish a parental relationship and secking eventual visitation with the as-yet unborn child. In anticipation of his assuming fatherly responsibilities, Jerry completed a parenting course. On November 9, 1995, Dawn gave birth to a son, who has resided with Dawn and Frank ever since that time. Jerry attempted to negotiate with Dawn and Frank an agreement for child support and visitation, but the parties have not effectuated such an agreement. Dawn moved for judgment on the pleadings. She argued Jerry could not assert a valid claim to be the father -51- of her son, inasmuch as her husband is presumptively the child’s natural father and California law recognizes only one natural father for any child. She further contended Jerry was not within the class of persons granted standing to seek blood testing under the Family Code. Finally, she contended the state’s interest in the integrity and preservation of the family unit outweighed Jerry’s interest in establishing his paternity of her son. The trial court denied Dawn’s motion. Relying on Michael M. v. Giovanna F. (1992) 5 Cal.App.4th 1272 (Michael M.) and Adoption of Kelsey S. (1992) 1 Cal.4th $16 (Kelsey S.), the court found that because Jerry had done all he could to demonstrate a commitment to his parental responsibilities, he had established “due process rights” that must be balanced against the state’s interest in enforcing the statutory presumption in favor of Frank. The trial court noted the state’s continuing interest in the welfare of the child and in family stability, an interest best -52- exemplified in the conclusive presumption contained in section 7540, which allows parentage to be challenged by someone other than the husband or wife only in however, that the inapplicability of section 7540 in this case supports an inference “the [Ljegislature perceived a decreased threat to the family stability if a wife is not cohabiting with her husband at the time of the conception.” The court therefore concluded Jerry should be permitted to try to establish he is the child’s biological father and, to that end, granted Jerry’s motion for blood testing. Dawn petitioned the Court of Appeal, secking a stay of further proceedings and a writ of mandate to compel the trial court to vacate its order denying her motion for judgment on the pleadings and enter a new order granting the motion. The Court of Appeal invited Jerry to file a response and notified the parties that unless good cause were shown it might issue a peremptory writ in -53- the first instance. (See Palma vy. U. S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) After consideration of the parties’ responsive papers, the Court of Appeal summarily denied the petition. We granted Dawn’s petition for review, directed respondent court to show cause before this court why the relief sought in the petition for writ of mandate should not be granted, and stayed all proceedings in the superior court pending final determination of this cause. DISCUSSION The Uniform Parentage Act, section 7600 et seq. (the Act), provides the framework by which California courts make paternity determinations. (§ 7610, subd. (b).) Under section 7611 of the Act, a man is presumed the natural father of a child born during, or within 300 days after the termination of, his marriage to the child’s mother. (§ 7611, subd. (a).) He also attains the status of presumed father if he receives the child into his home and openly holds out the child as his natural child. (§ 7611, subd. (d).) By either of these provisions, Dawn’s husband, Frank, is presumed the father of the child involved in this litigation.’ Jerry, by contrast, meets none of the statutory marnied nor attempted to marry Dawn, nor, despite his considerable efforts to assert parental rights, has he actually received the child into his home. (§ 7611; see Kelsey S., supra, 1 Cal.4th 816, 826-830 [declining to 1 Had Frank and Dawn been cohabiting at the time of the child’s conception (see, e.g., Steven W. v. Matthew S., supra, 33 Cal.App.4th 1108; City and County of San Francisco v. Strahlendorf, supra, 7 Cal.App.4th 1911), Frank’s paternity would be “conclusively” presumed (§ 7540). Although the presumption arising from the birth of a child to a wife cohabiting with her husband is denominated “conclusive,” in fact the presumption is subject to challenge under certain circumstances not relevant here. (See §§ 7540, 7541, subds. (b), (c).) -55- recognize doctrine of constructive receipt of child into man’s home].) The presumptions arising under section 7611 are rebuttable presumptions affecting the burden of proof and may be rebutted in an appropriate action by clear and convincing evidence. (§ 7612, subd. (a).) The Act, however, restricts standing to challenge the presumption of a husband's patemity to the child, the child’s natural mother, or a presumed father. (§ 7630, subd. (a); cf. § 7631.)' The Act thus precludes Jerry from bringing 1 As noted (see fn. 2, ante), section 7630, . subdivision (a), grants standing only to the child, the child’s mother, or a man presumed to be the child’s father as a result of his marriage to the child’s mother to bring an action to declare the existence or nonexistence of the father and child relationship presumed as a result of the mother’s marriage to the | presumed father. Thus, even if Jerry had himself become a presumed father under subdivision (d) of section 7611 by receiving and acknowledging the child, subdivision (a) of section 7630 would not (continued...) -56- (...continued) confer on him standing to challenge the paternity of another whose presumed fatherhood was based on marriage to the child’s mother at the time the child was born. Section 7630, subdivision (b), by contrast, allows “[{a]ny interested party” to bring an action to determine the existence or nonexistence of the father and child relationship presumed under subdivision (d) of section 7611. No reported cases have interpreted this provision in light of facts similar to those present here. Arguably Jerry would qualify as an “interested party” for purposes of bringing an action to establish Frank’s nonpaternity under subdivision (d) of section 7611. Such an action, however, whatever its outcome, would appear neither to affect Frank’s status as a presumed father under subdivision (a) of section 7611 nor to confer _ on Jerry presumed father status. (See also § 7635, subd. (b) [in an action to determine the paternity of a presumed father, the mother, each presumed father, and any alleged natural father must receive notice and an opportunity to be heard, and may be made parties).) Section 7631 provides in pertinent part: “Except as to cases coming within [the conclusive presumption of section 7540], a man not a presumed father may bring an action for the purpose of declaring that he is the natural father of a child (continued...) -57- and the child to submit to blood tests to resolve the question of biological parenthood. (See §§ 7551 [court may order blood tests in a civil action or proceeding in which patemity is a relevant fact], 7554 [governing determinations of paternity based on blood tests].) Jerry does not argue he has statutory standing to bring this action; his argument is directed to the proposition that a biological father has a liberty interest, protected as a matter of substantive due process, in being permitted to develop a parental relationship with his offspring. The Act, he contends, is therefore (...continued) having a presumed father under Section 7611, if the mother relinquishes for, consents to, or proposes to relinquish for or consent to, the adoption of the child.” Because Dawn is not relinquishing for or consenting to her child’s adoption, section 7631 has no relevance to this case. -58- | unconstitutional to the extent it deprives him of the opportunity to establish his parenthood. A preliminary question is the nature of our inquiry in the case of a substantive due process challenge to the Act. California courts have examined substantive due process claims to a right to establish parenthood on a case- by-case basis. “As our discussions have indicated, the reasonableness of a statutory limitation on the right to offer proof of parentage depeads on circumstances prevailing in each particular case. Accordingly, a court, make a preliminary determination, as by offer of proof, that due process concepts would be offended if the particular claimant to parentage were denied an opportunity to prove his claim.” (Jn re Lisa R. (1975) 13 Cal.3d 636, 651, fn. 17; see also Michelle W. v. Ronald W. (1985) 39 Cal.3d 354, 360.) Dawn forcefully argues that such a method of -59- analysis runs the risk of merely substituting this court’s policy choices for those of the Legislature. As the United States Supreme Court recently noted in a different context, “(W]e ‘ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionma),ng in this unchartered area are scarce and open-ended.’ [Citation.] By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore ‘exercise the utmost care whenever we are asked to break new ground in this field,’ [citation], lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Cour‘, [citation].” (Washington v. Glucksberg (1997) ___ US. ___ [138 L.Ed.2d 772, 787] [upholding, against Fourteenth Amendment challenge, Washington statute criminalizing the act of causing or assisting a suicide].) -60- We are sympathetic to the democratic motivation underlying the cautious attitude of the authority just quoted. Nevertheless, if the judiciary is to fulfill its role in our tripartite system of government as the final arbiter of constitutional issues, it cannot hope to escape the tension challenges raised by those who would seek exceptions thereto. We can, however, while entertaining such challenges, seek to hold the tension in check by always presuming the constitutional validity of legislative acts and resolving doubts in favor of the statute. (Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1252.) The due process clause of the Fourteenth Amendment to the federal Constitution provides that “[n]o state shall deprive any person of life, liberty, or property, without due process of law. . . .” (U.S. Const., 14th Amend., § 1.) The United States Supreme Court has long recognized that this provision is not only a guarantee of 61- procedural due process, but also substantively protects certain liberties from state infringement except when justified by the most compelling reasons: “[A] ‘substantive due process’ claim relies upon our line of cases which interprets the Fifth and Fourteenth Amendments’ guarantee of ‘due process of law’ to include a substantive component, which forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” (Reno v. Flores (1993) 507 U.S. 292, 301-302.) The high court has recognized that the liberty interests protected by the due process clause are broader than just the freedom from physical restraint: “In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the rights to marry . . .; to have children . . .; to direct the education and upbringing -62- basin aan of one’s children . . .; to marital privacy . . .; to use contraception . . .; to bodily integrity . . .; and to abortion.” (Washington v. Glucksberg, supra, U.S.___, 138 L.Ed.2d at p. 787, citations omitted.) The United States Supreme Court has developed the following methodology for deciding whether an asserted interest is a fundamental liberty interest protected by due process: First, the court must make a “‘careful description’ of the asserted fundamental liberty interest.” (Washington v. Glucksberg, supra, 138 L.Ed.2d at p. 788.) This “careful description” is concrete and particularized, rather than abstract and general; thus, in Washington v. Glucksberg, a case addressing a state the view the interest in question was ““whether there is a liberty interest in determining the time and manner of one’s death’” or a “‘liberty to choose how to die.”” (Jd. at p. 789.) Instead, the high court formulated the interest more -63- specifically as “whether the ‘liberty’ specially protected by the Due Process Clause includes a right to commit suicide - which itself includes a right to assistance in doing so.” (Ibid.) Likewise, in a case challenging the policy of the Immigration and Naturalization Service to place deportable alien iuveniles in custodial child care rather than to release them to unrelated adults, the Supreme Court rejected the contention the right at issue was the “freedom from physical restraint,”” instead characterizing it as “the alleged right of a child who has no available | parent, close relative, or legal guardian, and for whom the | government is responsible, to be placed in the custody of a | willing-and-able private custodian rather than of a | institution.” (Reno v. Flores, supra, $07 U.S. 292, 302.) Second, the court must determine whether the asserted interest, as carefully described, is one of our fundamental rights «nd liberties; central to this -64- ™ | | determination is whether the asserted interest finds support in our history, our traditions, and the conscience of our people. (Washington v. Glucksberg, supra, 138 L.Ed.2d at p. 788; Reno v. Flores, supra, 507 U.S. 292, 303.) Only if a court decides the asserted liberty interest is a fundamental interest protected by the due process clause does it weigh the state’s countervailing interest, to determine whether the latter is sufficiently compelling to justify the state’s infringement of the liberty interest. “(Bly establishing a threshold requirement—that a challenged state action implicate a fundamental right- before requiring more than a reasonable relation to a legitimate state interest to justify the action, [this approach] avoids the need for complex balancing of competing interests in every case.” (Washington v. Glucksberg, supra, 138 L.Ed.2d at pp. 788-789.) Adhering to the United States Supreme Court's methodology for analyzing substantive due process claims, -65- our first step, therefore, is to make a “careful description” of the asserted liberty interest. (Washington v. Glucksberg, supra, 138 L.Ed.2d at p. 788.) Carefully described, the interest for which the alleged biological father, Jerry, seeks constitutional protection is his interest in establishing a relationship with his child bom to a woman married to another man at the time of the child’s conception and birth. The next step is to decide whether this interest is | constitutionally protected. This question has a ready answer, for the United States Supreme Court has considered and rejected due process protection for this interest. In Michael H. v. Gerald D. (1989) 491 U.S. 110, 124-127, four justices, in a plurality opinion by Justice Scalia, concluded the biological father of a child born to a woman married to another man had no liberty satceeat tin easitintslaan Nin eclitiorehiin titite te child notwithstanding that he had lived with the mother and -66- child for almost a year and visited her for an additional eight months, and the child called him “Daddy.” In rejecting the liberty interest claim of a man who was not only the biological father, but also had an actual personal relationship with the child, the plurality necessarily rejected as well the position that a biological connection without any actual personal relationship gives rise to a protected liberty interest. Three dissenting justices in Michael H. v. Gerald D., supra, 491 U.S. 110, concluded the actual personal relationship between the biological father and his child was a protected liberty interest. They rejected, however, the possibility that a biological father having no existing personal relationship with his child born to a woman married to another man could have any liberty interest in establishing a relationship with the child: “[AJlthough an unwed father’s biological link to his child does not, in and of itself, guarantee him a constitutional stake in his -67- relationship with that child, such a link combined with a substantial parent-child relationship will do so.” (id. at pp. 142-143 (dis. opn. of Brennan, J., joined by Marshall, J., and Blackmun, J.).) The dissenting opinion concluded, “a mere biological connection is insufficient to establish a liberty interest on the part of an unwed father. . . .” (Id. at p. 143, fn 2.) Thus, at least seven of the nine high court justices in Michael H. expressly rejected the view that an unwed father’s biological link to a child aione gives rise to a protected liberty interest. (See also Lehr v. Robertson (1983) 463 U.S. 248, 259-260 [drawing a “clear distinction between a mere biological relationship and an actual relationship of parental responsibility.” (Italics added}).) Here, Jerry has never had any personal relationship with Dawn’s child, only an alleged biological link with an attempt to negotiate an agreement for child support and visitation. As explained above, in Michael H. -68- v. Gerald D., supra, 491 U.S. 110, the United States Supreme Court decided that a biological father’s mere desire to establish a personal relationship with the child is not a fundamental liberty interest protected by the Due Process Clause. Accordingly, in this case Jerry’s claim must fail. Contrary to our conclusion, the dissent maintains Jerry does have a protected liberty interest in establishing a relationship with Dawn’s child. It relies on two United States Suprenie Court decisions, Michael H. v. Gerald D., supra, 491 U.S. 110 and Lehr v. Robertson, supra, 463 U.S. 248, and one of this court’s adoption cases, Adoption of Kelsey S., supra, 1 Cal.4th 816. The dissent, however, fails to acknowledge the distinction the high court in Michael H. vy. Gerald D., supra, 491 U.S. 110, drew between an unwed father’s interest in maintaining and preserving an existing parent-child relationship and the claim, rejected by at least seven justices, that an unwed -69- father’s biological connection alone to a child born to a married woman gives rise to a protected liberty interest in establishing a relationship with the child.' Contrary to the dissent in the present case, that dissenting Justice Brennan in Michael H. v. Gerald D., supra, 491 U.S. 110, 136, would find the mother’s marital status “not decisive” (id. at p. 144) on the question whether the Constitution protects a biological father’s interest in establishing a relationship with the child does not mean her marital status is irrelevant, especially where, as here, the child was born into the marital family and the alleged biological father has no actual relationship with the child. Nor, contrary to the dissent, is Justice Brennan’s apparent conclusion that the duration of the biological parent-child relationship is irrelevant to its constitutional status (id. at p. 144, fh. 3) the equivalent of a conclusion that its very existence is likewise irrelevant. Indeed, as we have seen, in a passage ignored by the dissent in this case, Justice Brennan found a mere biological connection insufficient to create a constitutionally protected liberty interest on the part of the biological father. (Id. at pp. 142-143, fn. 2 [dis. opn. of Brennan, J.}.) We do not find Justice Brennan’s conclusion in this regard necessarily inconsistent with the dissent of Justice White, which Justice Brennan joined; even if (continued...) -70- Oe ee ee ee ee ee ee As for Lehr v. Robertson, in that case an unwed mother, after her child’s birth, married another man who then adopted the child; the unwed father claimed due process entitled him to notice and a hearing before the adoption could occur. (Lehr v. Robertson, supra, 463 U.S. 248, 250.) Like Adoption of Kelsey S., supra, | Cal.4th 816, Lehr v. Robertson concermed a child born to two unwed parents, not, as here, a child born into a marriage. Thus, the adoption cases do not support protecting as a liberty interest Jerry’s desire to establish a relationship with Dawn’s child born into a marriage. Moreover, the high court in Lehr v. Robertson never clearly decided to what extent the unwed father in that case had a protected liberty interest in the opportunity to develop a relationship with his child, nor was it necessary (...continued) it were, however, we believe Justice Brennan's opinion best reflects his own views. 2. for the court do so. Rather, after deciding that an unwed father’s desire to establish a relationship with his child born to an unwed mother was not entitled to the constitutional protection accorded to existing parent-child relationships, the court concluded the state had adequately protected any constitutional interest the father may have possessed by providing a means for unwed biological fathers to register with the state and receive notification of any adoption proceedings involving their children. (Lehr v. Robertson, supra, 463 U.S. 248, 261-265.) The high court’s subsequent decision in Michael H. v. Gerald D., supra, 491 U.S. 110 imade clear that the biological father of a child born to a woman married to another man has no liberty interest in establishing a relationship with the child. The dissent further suggests Jerry is potentially liable for financial support of Dawn’s child, but the cases it cites in support of this startling assertion do not so hold. In Alicia R. v. Timothy M. (1994) 29 Cal.App.4th 1232, Ti» 1235-1238, a biological father was ordered to pay support only after a judgment of nullity of the mother’s marriage” with a finding there were no children of the marriage, and after blood tests had established his paternity. In County of Orange v. Leslie B. (1993) 14 Cal-App.4th 976, 980- 983, the Court of Appeal declined to apply the conclusive presumption of a husband’s paternity (former Evid. Code, § 621), noting: “Here there is no marital union to disrupt [by holding the biological father liable for child support]. [Wife] and [Husband’s] brief marriage ended well before [the child] was born. The three never lived together as a family unit. [The child] knows [Husband] is not her father and [Husband] did not know about [the child] until he was brought into this action, 13 years later.” (Id. at p. 982.) The dissent cites no -73- authority remotely similar to this case, in which the child was born into a validly existing marital family unit.’ CONCLUSION Because Jerry cannot establish a constitutionally protected liberty interest in being allowed to form a parental relationship with Dawn’s child, application to this case of sections 7611 and 7630 does not deprive him of — Citing Salas vy. Cortez (1979) 24 Cal.3d 22, 34 (Salas), Jerry argues the state has an interest in an accurate determination of biological paternity. He takes that decision out of context. In Salas we concluded procedural due process requires the appointment of counsel for indigent defendants in paternity actions prosecuted by the state, balancing the state’s largely financial interest in denying counsel against the profound emotional, financial and legal implications of an erroneous paternity judgment. (/d at pp. 29-34.) Salas did not address the situation in the present case, where a man is actively seeking to establish his paternity of a child born to a married woman whose husband is statutorily presumed to be the child’s father and is fulfilling that role. (See § 7611, subds. (a), (d).) <4. due process. The judgment of the Court of Appeal therefore is reversed, and the cause is remanded to that court with directions to issue a writ of mandate directing respondent Superior Court of Riverside County to vacate its order denying Dawn’s motion for judgment on the pleadings and to enter a new order granting the motion. WERDEGAR, J. WE CONCUR: GEORGE, C.J. KENNARD, J. BAXTER, J. BROWN, J. 93. CONCURRING OPINION BY KENNARD, J. The due process clause of the Fourteenth Amendment to the federal Constitution, in its “substantive” aspect, protects fundamental liberties from state interference absent a compelling reason for the state’s action. At issue in this case is whether a biological father’s desire to establish a relationship with his child born to a woman married to another man is a constitutionally protected fundamental liberty interest. I concur fully in the majority’s conclusion that, in the absence of any existing personal relationship with the child, a biological father lacks any constitutionally protected liberty interest. I write separately to note that This case involves Dawn, Dawn’s child conceived and bom during her marriage to her husband Frank, and Jerry, who alleges he is the biological father of Dawn’s child. Dawn and Frank have had exclusive custody of the child since birth, and Jerry has established no personal relationship with the child. Before birth, Jerry brought suit alleging that he is the biological father of Dawn’s was born during Dawn’s marriage to Frank, Frank is the father of Dawn’s child, and it precludes Jerry from bringing any legal action to challenge that presumption. (Fam. Code, §§ 7611, subd. (a), 7630, subd. (a).) Jerry contends nonetheless that he has a liberty interest protected by the due process clause of the United States Constitution in establishing a parental relationship with Dawn’s child. The trial court held that if Jerry was the biological father of Dawn’s child he had a substantive due process right to establish a relationship with the child, and on that basis ordered bicod testing to determine whether Jerry was the 76 biological father of Dawn’s child. The Court of Appeal denied without comment Dawn’s petition for a writ of mandate seeking to overturn the trial court’s ruling. II As the majority opinion explains, in Michael H. v. Gerald D. (1989) 491 U.S. 110, 124-127, seven justices of the United States Supreme Court concluded that, in the absence of any existing personal relationship with the child, a biological father’s desire to establish a relationship with his child born to a woman married to another man is not a fundamental liberty interest protected by the due process clause of the Fourteenth Amendment to the federal Constitution. But, even if the high court had not decided the question in Michael H. v. Gerald D. and we were free to consider the matter independently, I would still reach this same conclusion. As the majority notes, in deciding whether an asserted interest is one of our fundamental rights and liberties substantively protected by the due process clause, a court must examine whether the interest, “ ‘carefully described,’ ” finds support in our history, our traditions, and the conscience of our people. (Washington v. 3 Glucksberg (1997) __ U'S._, 117 S.Ct. 2258, 2268- 2269; accord, Reno v. Flores (1993) 507 U.S. 292, 303.) Here, there is no support in history or our legal tradition for Jerry’s claim that a biological father without any actual personal relationship with his child bor to a woman married to another man has a fundamental right to establish a relationship with the child. Indeed, history and tradition are directly to the contrary, for society has consistently denied to the biological father in these circumstances any opportunity to establish paternal rights over the child of another man’s wife. For centuries, there has existed the presumption of legitimacy: the legal presumption that a child born during wedlock is the husband’s issue (absent proof of the husband’s impotence). (10 Am.Jur.2d (1963) Bastards, § 11, p. 851 77 [“The principle that children born into wedlock are presumed to be legitimate is universally recognized.”].) Lord Coke stated the common law rule: “By the common law if the husband be within the foure seas, that is within the jurisdiction of the king of England, if the wife hath issue, no proofe is to be admitted to prove the child a bastard, . . . unlesse the husband hath an apparent impossibilitie of procreation.”' (Coke on Littleton, Institutes of the Laws of England (1628) 244a [bk. 3, ch. 6, § 399}.) recognized the presumption of legitimacy. In 1872, our Legislature codified the presumption as follows: If the husband and wife were cohabiting at the time of conception and the husband was not impotent, the presumption that the husband was the father was indisputable. (Code Civ. Proc., former § 1962, subd. 5, enacted 1872, amended by Stats. 1955, ch. 948, § 3, p. 1835, repealed by Stats. 1965, ch. 299, § 110, p. 1363, eff. Jan. 1, 1967 [“the issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate”]; Estate of Mills, supra, 137 Cal. 298, 301- 304.) A similar provision continues in our current Family Code. (Fam. Code, § 7540.) If the parents were married but not cohabiting at the time of conception, the — presumption could be disproven, but only by a member of As this court noted long ago, Shakespeare also restated this presumption: “King John: Sirrah, your brother is legitimate; Your father’s wife did after wedlock bear him; And, if she did play false, the fault was hers; Which fault lies on the hazards of all husbands That marry wives.” (Shakespeare, King John, act I, scene 1, quoted in Estate of Mills (1902) 137 Cal. 298, 301.) 78 a narrow class of persons. (Civ. Code, former §§ 193, 195, superseded by Evid. Code, former § 661, enacted by Stats. 1965, ch. 299, § 2, p. 1310, repealed by Stats. 1975, ch. 1244, § 14, p. 3202; accord, Fam. Code, §§ 7611, subd. (a), 7630, subd. (a).) Most important, the group of persons with standing to disprove the presumption has always been limited to designated members of the marital family and their descendants, and an alleged biological father has never been permitted to challenge the paternity of a child born into the marriage of a woman and another man. (Civ. Code, former §§ 193, 195 [permitting challenges only by the husband, wife, or their descendants]; Fam. Code, §§ 761i, subd. (a), 7630, subd. (a) [permitting challenges only by the husband, wife, or — see also In re Madalina (1917) 174 Cal. 693, S96 (describing this refusal to permit outsiders to challenge the presumption of legitimacy as the “rule prevailing generally in all civilized communities”); Michael H. v. Gerald D., supra, 491 U.S. 110, 124-126 (plurality opn. of Scalia, J. [discussing history of the presumption of legitimacy]).) Nor is there an inconsistency between Michael H. v. Gerald D., supra, 491 U.S. 110 and our court’s decisions prohibiting an unwed mother from unilaterally consenting to an adoption over the objections of an unwed father who has come forward to assume parental responsibility. (Adoption of Michael H. (1995) 10 Cal.4th 1043; Adoption of Kelsey S. (1992) 1 Cal.4th 816.) When carefully described, the interest for which Jerry seeks constitutional protection differs from the interest at issue in our adoption cases. In those cases, the child was not bom to a mother who was the wife in an intact marital family, but to two unwed parents, one of whom (the mother) wished to terminate her parent-child relationship. The interest at issue thus was the interest of an unwed father in establishing a relationship with his child born to an unwed mother who was terminating her 79 parent-child relationship. Due process protection for this interest does not dictate that Jerry’s different interest is likewise protected by due process. The common law likewise differentiated between fathers of children born to unwed mothers and fathers of children bom into the marriage of a woman and another man. At common law, the unwed mother of a child had the right to custody of the child to the exclusion of the biological father. (Ex Parte Knee (1804) 127 Eng.Rep. 416; Rex v. Soper (1793) 101 Eng.Rep. 156; 10 Am_Jur.2d, supra, Bastards, §§ 60-61, pp. 889-890; Annot., Right of mother to custody of illegitimate child (1927) 51 A.L.R. 1507, 1512; accord, Civ. Code, former § 200, repealed by Stats. 1975, ch. 1244, § 4, p. 3195; Guardianship of Smith (1954) 42 Cal.2d 91, 93.) If, however, the unwed mother died, abandoned or neglected the child, or gave the child up for adoption, the biological father had a right to custody of the child. (10 Am.Jur.2d, supra, Bastards, §§ 61-62, pp. 890-891; accord, Guardianship of Smith, supra, at p. 93.) Our adoption cases, in permitting a biological father an opportunity to establish a relationship with his child by an unwed mother who was giving the child up for adoption, have not ventured beyond the common law rule; if that same rule were applied to decide in this case whether Jerry’s interest was a protected liberty interest, it would not assist him because Dawn, the child’s mother, has not given the child up for adoption or otherwise declined her parental 80 CONCLUSION A man who wishes to father a child and ensure his relationship with that child can do so by finding a partner, entering into a marriage, and undertaking the fathers a child with a woman married to another man takes the risk that the child will be raised within that marriage and that he will be excluded from participation in the child’s life. The due process clause of the United States Constitution provides no insurance against that risk and is _not an instrument for disrupting the marital family in order to satisfy the biological father’s unilateral desire, however strong, to turn his genetic connection into a personal KENNARD, J. WE CONCUR: BAXTER, J. BROWN, J. $1 DISSENTING OPINION BY CHIN, J. I dissent. The governing decisions of both the United States Supreme Court and this court establish that a biological father who promptly comes forward to assume his paternal ities has a constitutional liberty interest in the opportunity to develop a relationship with his child, which the state pay not extinguish without due process of law. The existence of this interest does not depend on the marital status of the child’s mother. The trial court in this case found that Jerry K., who alleges that he is the biological father of Dawn D.’s son, had done all he could under the circumstances to demonstrate a full commitment to his parental responsibilities, and the majority docs not contest this finding. Thus, assuming he is the child's biological father, Jerry has a protected constitutional liberty interest in the opportunity to develop a relationship due process of law. In order to determine what process is due, we must However, on the facts of this case, they do not justify the state’s categorical presumption that Jerry’s exclusion from the child’s life is warranted and its refusal to afford Jerry a hearing on the matter. In reaching this conclusion, I do not suggest what the outcome of a hearing should be. A court might very well find that, under the circumstances, Jerry should have no contact with the child, even if he is the biological father. Moreover, the state may constitutionally enact a rebuttable presumption that this outcome serves the child’s best interests and may establish hearing procedures to 82 protect the stability of the marital family. However, as a matter of due process, the state may nof constitutionally deprive Jerry of all opportunity to be heard. Therefore, I I. FACTUAL AND PROCEDURAL BACKGROUND to the trial court findings, Dawn and Frank married in June 1989. In early January 1995, Dawn left Frank and began living with Jerry. In February 1995, Dawn became pregnant. Two months later, in April, she moved out of Jerry’s home and moved back in with Frank. In November 1995, Dawn gave birth to a son. In August 1995, before the child’s birth, Jerry filed a complaint to establish a parental relationship. The complaint requested joint legal custody, with physical custody awarded to Dawn subject to Jerry’s right of Dawn answered the complaint in September 1995, asking the court to deny relief. She subsequently moved for judgment on the pleadings, arguing that Jerry could not maintain a paternity action because Frank was the child’s presumed father under Family Code section 7611.' Dawn asserted that Frank was a presumed father under this and Frank received the child into his home and openly held the child out as his own. She also asserted that Jerry lacked standing to request a blood test to establish biological paternity. Jerry opposed the motion and submitted supporting evidence. According to his declaration, he began a sexual relationship with Dawn in December 1994, and she moved in with him in January 1995. She amended her voter registration to reflect Jerry’s address and had the Post Office change her mailing address to Jerry’s. Dawn told All further statutory references are to the Family Code. 83 Jerry that she would marry him as soon as she legally could and that she wanted to start a family. At Dawn’s request, Jerry submitted to fertility testing. Jerry also began building an addition to his home in anticipation of having a child with Dawn. After Dawn became pregnant, she told people that the baby was Jerry’s, and that she and Jerry intended to marry. Jerry also submitted declarations from friends corroborating some of the statements in his wanted to marry Jerry and have children with him. of Jerry’s assertions. For example, she denic«| telling Jerry that she would marry him as soon as she could. She also denied ever having an intent to change her domicile to Jerry’s residence. According to Dawn and Frank, they continued to have contact with each other while she lived with Jerry. After argument, the trial court denied Dawn’s motion. Applying the relevant authorities, it first found that, if Jerry was the biological father, then he had a constitutionally protected interest in having an opportunity to develop a relationship with the child. In reaching this conclusion, the court stated: “It is hard to imagine what else [Jerry] could have done under these circumstances to ‘preserve his interest’ . . . and to prove that he has ‘promptly come forward and demonstrated a full commitment to his parental responsibilities.’ [Jerry] filed the within action to determine parentage prior to the birth of the child. Once he learned that the child was born, he began negotiations with [Dawn] for blood testing, payment of child support and visitation. It would appear from correspondence between counsel that an agreement had been reached for visitation and payment of child support. It also appears that [Jerry] took a parenting class . . . in preparation for the birth of the child and his anticipated parental duties.” The court then balanced Jerry’s interest against the state’s interest in the child’s welfare and family 84 stability. It concluded that, under the circumstances, Jerry should have an opportunity to establish he is the child’s biological father. The Court of Appeal summarily denied Dawn’s petition for writ of mandate. We then granted Dawn’s II. DISCUSSION A. Jerry Has a Constitutionally Protected Interest Constitutional due process protections “apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.” (Board of Regents v. Roth (1972) 408 U.S. 564, 569 (Roth).) Accordingly, the first step in analyzing a due process claim is to determine whether “the interest is within the Fourteenth Amendment’s protection of liberty and property.” (Id. at p. 571.) We must “begin the inquiry with a determination of the precise nature of the private interest that is threatened by the State. [Citation.]} properly evaluate the adequacy of the State’s process. [Citation.]” (Lehr v. Robertson (1983) 463 U.S. 248, 256 (Lehr).) Thus, “we are faced with . . . a familiar two-part inquiry: we must determine whether [Jerry] was deprived of a protected interest, and, if so, what process was his due.” (Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 428.) the first issue, applying the decisions of tus Wahine Meena Claes dc anen, [continde Jerry has a constitutional iiberty interest in the opportunity to develop a relationship with Dawn’s child, assuming he is the child’s biological father. The high court has addressed the constitutional rights of unwed fathers several times. In Michael H. v. Gerald D..(1989) 491 U.S. 110 (@iichael H.), the high court considered the constitutionality of a California statute providing that “ ‘the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a 85 bas child of the marriage.’” (id. at p. 117 (plur. opn. of Scalia, J.).) In Michael H., during the first year of the " child’s life, she and her mother lived with the alleged natural father for two to three months, and he held her out as his child. The mother, with the child, then left the attempts. He then filed a filiation action to establish paternity and visitation rights. Nine months later, the father. For the next eight months, when he was in town, he lived with the mother and her child and held the child out as his daughter. The mother then left the alleged natural father and reconciled with her husband. The rights. (Michael H., supra, 491 U.S. at pp. 113-115 (plur. opn. of Scalia, J.).) There was no majority opinion in Michael H. Justice Scalia, writing for the plurality, found that the alleged natural father had no “constitutionally protected right” under the circumstances. (Michael H., supra, 491 US. at p. 129, fn. 7 (plur. opn. of Scalia, J.).) However, Justice Stevens, who provided the fifth vote to uphold the statutory scheme, expressly refused to endorse this conclusion. Although concurring in the judgment, he disagreed with the plurality’s rejection of “the possibility that a natural father might ever have a constitutionally protected interest in his relationship with a child whose mother was married to, and cohabiting with, another man at the time of the child’s conception and birth.” (/d. at p. i33 (conc. opn. of Stevens, J.).) Indeed, he was “willing to assume for the purpose of deciding [the] case that [the alleged natural father’s] relationship with [the child] [was] strong enough to give him a constitutional right to try to convince a trial judge that (the child’s] best interest would be served by granting him visitation rights.” (Jbid.) However, Justice Stevens found the statutory scheme “consistent with the Due Process Clause” because he was 86 “convinced that the trial judge had the authority under state law both to hear [the alleged natural father’s] plea for visitation rights and to grant him such rights if [the child’s] best interests so warranted... .” (id. at p. 136 (conc. opn. of Stevens, J.).) Justices White and Brennan filed separate dissents. In his dissent, Justice White, joined by Justice Brennan, found that the alleged natural father had “a liberty interest that cannot be denied without due process of the law .. . .” (Michael H., supra, 491 U.S. at p. 157 (dis. op. of White, J.).) Justice White cited the court’s prior cases recognizing the liberty interest of a natural father in his relationship with his child, noting that none of those cases indicated “that the father’s rights were dependent on the marital status of the mother or biciogical father.” (Jbid.) The “basic principle” is that “an unwed father who has demonstrated a sufficient commitment to his patemity by way of personal, financial, or custodial responsibilities has a protected liberty interest in a relationship with his child.” (id. at pp. 157-158, fn. omitted (dis. opn. of White, J.).) Justice White stressed that the natural father “ha[d] since the very time of the child’s birth.” (Jd. at p. 159 (dis. opn. of White, J.).) He also noted a previous high court decision suggesting that states “must provide a biological father of an illegitimate child the means by which he may establish his paternity so that he may have the opportunity to develop a relationship with his child.” (Ibid.) Quoting Lehr, supra, 463 U.S. at page 261, Justice White explained: “ “When an unwed father demonstrates a full commitment to the responsibilities of parenthood by “com[ing] forward to participate in the rearing of his child” [citation], his interest in personal the Due Process Clause.’ [Citation.]” (Michael H., supra, 491 U.S. at p. 160 (dis. opn. of White, J.).) Justice Brennan, in a dissent joined by Justices 87 Marshall and Blackmun, also found that the alleged natural father had a constitutional “liberty interest in his relationship” with the child. (Michael H., supra, 491 US. at p. 136 (dis. opn. of Brennan, J.).) Like Justice White, Justice Brennan explained that “marriage is not decisive in the parental relationship under consideration.” (id. at p. 144 (dis. opn. of Brennan, J.).) Also like Justice White, Justice Brennan quoted Lehr, supra, 463 U.S. at page 261, in declaring that the interest of an unwed father in protection he “ ‘demonstrates a full commitment to the responsibilities of parenthood by “com{ing] forward to participate in the rearing of his child... .”"” (Michael H., supra, 491 US. at p. 143 (dis. opn. of Brennan, J.).) Summarizing the “common ground shared by a majority of” the high court, Justice Brennan explained: “Five Members of the Court refuse to foreclose ‘the possibility that a natural father might ever have a constitutionally protected interest in his relationship with a child whose mother was married to, and cohabiting with, another man at the time of the child’s conception and birth.” [Citations.] Five Justices agree that the flaw imhering in a conclusive presumption that terminates a ituti interest without any hearing whatsoever is a one. [Citations.] Four Members of the Court agree that [the alleged natural father] has a liberty interest in his relationship with [the child] [citations], and one assumes for purposes of this case that he does [citation].” (Michael H., supra, 491 U.S. at p. 136, original italics (dis. opn. of Brennan, J.).) Lehr, the decision that both Justices Brennan and White quoted in their Michael H. dissents, is perhaps even more instructive on the issue before us. There, an alleged natural father sought to overtum an order of a New York state court granting a petition for adoption of a child by the mother’s husband. The mother had married her 88 husband eight months after the child’s birth. (Lehr, supra, 463 U.S. at p. 250.) The adoption petition was filed when the child was two years old. (Jbid.) During the child’s mother and child or provided them with financial support. (id. at p. 252.) The alleged natural father was not sent notice of the adoption proceeding and learned of it only four days before a court granted the adoption petition. (/d. at pp. 252-253.) In seeking to overturn the adoption order, he aryjued that the state had impermissibly extinguished his constitutional liberty interest in the potential relationship with his child without due process of law. (Ud. at p. 255.) Although the high court affir aed the adoption order, its reasoning indicates that the alleged natural father had a constitutional liberty interest that entitled him to duc process, despite his initial lack of effort to have contact with the child. In the first part of its opinion, the court “consider[ed] the nature of the interest in liberty for which {the alleged natural father] claims constitutional protection ....” (Lehr, supra, 463 U.S. at p. 256.) The court is that it offers the natural father an app<