Marriage trumps biology in California paternity fight.

Dealing a blow to advocates for fathers' rights, the California Supreme Court recently clung to age-old legal concepts of family and found that the biological father of a child born out of wedlock has no constitutional right to seek to establish a relationship with the child when the mother is married to another man.

The alleged biological father, Jerry K., and the mother, Dawn D., lived together and conceived a son during Dawn's separation from her husband. Dawn reconciled with her husband before the birth. Under California law, which is similar to the law in many other states, Dawn's husband is the boy's presumed father. The couple is fighting Jerry's paternity claim.

The court noted that Jerry had taken steps during Dawn's pregnancy and after the boy's birth to acknowledge his paternity and share responsibility for the child. But the five-justice majority, led by Justice Kathryn Werdegar, held 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." (Dawn D. v. Jerry K., 952 P.2d 1139 (Cal. 1998).)

Justice Joyce Kennard, in a concurring opinion, cited society's historical interest in protecting families from disruption by outsiders.

"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 responsibilities marriage imposes," Kennard wrote. "One who instead 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."

Jerry's attorney, Marjorie Fuller of Fullerton, California, said the court's opinions "are back in the 1950s." In an age when large numbers of children are born out of wedlock and paternity can be proven with DNA testing, "the fiction of the intact little family is gone," Fuller said.

"Once the husband and wife have separated and the wife has moved in with someone else and the wife becomes pregnant with someone else, nobody thinks the kid is the child of the husband," she said.

In a lengthy dissent, two justices said Jerry should be allowed to present his case for visitation, arguing that the state may not "deprive Jerry of all opportunity to be heard."

"[A] biological father who promptly comes forward to assume his paternal responsibilities has a constitutional liberty interest in the opportunity to develop a relationship with his child, which the state may not extinguish without due process of law," Justice Ming Chin wrote. "The existence of this interest does not depend on the marital status of the child's mother."

The justices' disagreement stemmed from their different interpretations of a complicated U.S. Supreme Court decision in a similar case, Michael H. v. Gerald D. (491 U.S. 110 (1989).) In that case, the Court was unable to reach consensus, and no majority opinion emerged. A four-justice plurality held that the natural father had no liberty interest in continuing a relationship that he had already established with his child, whose mother was married to someone else.

The California justices disagreed over how many of the High Court justices had allowed for the possibility that an unwed natural father might in some circumstances have a constitutionally protected interest in his relationship with his child born to a married woman. Werdegar and the majority counted two at most. The dissenters counted five.

Fuller said the confusion over Michael H. shows that the Supreme Court needs to revisit the issue. But she said Jerry does not plan to seek that clarification by asking the High Court to hear his case.

Diane Catran Roth, a Riverside, California, lawyer who represents Dawn and her husband, said the court correctly interpreted the presumed-father law and protected her clients' choice to raise a family together. "The legislature made a decision that it would not let somebody in [Jerry's] position come in and impugn a family," Roth said.

She added that changes in society may prompt lawmakers to reconsider that policy. "That's a decision that society has to make," she said.