# Michael H. v. Gerald D.

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## Concurring Opinions

    Stevens
    O'Connor

## Dissenting Opinions

    Brennan
    White
United States Supreme Court
491 U.S. 110
Michael H. v. Gerald D.
Appeal from the Court of Appeal of California, Second Appellate District
No. 87-746 Argued: October 11, 1988 --- Decided: June 15, 1989
See 492 U.S. 937, 110 S.Ct. 22.
Leave to File Second Petition for Rehearing Denied April 22, 1991.
See 499 U.S. 984, 111 S.Ct. 1645.
Syllabus
In May 1981, appellant Victoria D. was born to Carole D., who was married to, and resided with, appellee Gerald D. in California. Although Gerald was listed as father on the birth certificate and has always claimed Victoria as his daughter, blood tests showed a 98.07% probability that appellant Michael H., with whom Carole had had an adulterous affair, was Victoria's father. During Victoria's first three years, she and her mother resided at times with Michael, who held her out as his own, at times with another man, and at times with Gerald, with whom they have lived since June 1984. In November 1982, Michael filed a filiation action in California Superior Court to establish his paternity and right to visitation. Victoria, through her court-appointed guardian ad litem, filed a cross-complaint asserting that she was entitled to maintain filial relationships with both Michael and Gerald. The court ultimately granted Gerald summary judgment on the ground that there were no triable issues of fact as to paternity under Cal.Evid.Code § 621, which provides that a child born to a married woman living with her husband, who is neither impotent nor sterile, is presumed to be a child of the marriage, and that this presumption may be rebutted only by the husband or wife, and then only in limited circumstances. Moreover, the court denied Michael's and Victoria's motions for visitation pending appeal under Cal.Civ.Code § 4601, which provides that a court may, in its discretion, grant "reasonable visitation rights . . . to any . . . person having an interest in the [child's] welfare." The California Court of Appeal affirmed, rejecting Michael's procedural and substantive due process challenges to § 621 as well as Victoria's due process and equal protection claims. The court also rejected Victoria's assertion of a right to continued visitation with Michael under § 4601, on the ground that California law denies visitation against the wishes of the mother to a putative father who has been prevented by § 621 from establishing his paternity.
Held: The judgment is affirmed.
191 Cal.App.3d 995, 236 Cal.Rptr. 810, affirmed.
Justice SCALIA, joined by The Chief Justice, and in part by Justice O'CONNOR and Justice KENNEDY, concluded that: 1. The § 621 presumption does not infringe upon the due process rights of a man wishing to establish his paternity of a child born to the wife of another man. Pp. 118-130.
(a) Michael's contention that procedural due process requires that he be afforded an opportunity to demonstrate his paternity in an evidentiary hearing fundamentally misconceives the nature of § 621. Although phrased in terms of a presumption, § 621 expresses and implements a substantive rule of law declaring it to be generally irrelevant for paternity purposes whether a child conceived, during and born into, an existing marriage was begotten by someone other than the husband and had a prior relationship with him, based on the state legislature's determination as a matter of overriding social policy that the husband should be held responsible for the child and that the ntegrity and privacy of the family unit should not be impugned. Because Michael's complaint is that the statute categorically denies all men in his circumstances an opportunity to establish their paternity, his challenge is not accurately viewed as procedural. Pp. 119-121.
(b) There is no merit to Michael's substantive due process claim that he has a constitutionally protected "liberty" interest in the parental relationship he has established with Victoria, and that protection of Gerald's and Carole's marital union is an insufficient state interest to support termination of that relationship. Michael has failed to meet his burden of proving that his claimed "liberty" interest is one so deeply imbedded within society's traditions as to be a fundamental right. Not only has he failed to demonstrate that the interest he seeks to vindicate has traditionally been accorded protection by society, but the common-law presumption of legitimacy, and even modern statutory and decisional law, demonstrate that society has historically protected, and continues to protect, the marital family against the sort of claim Michael asserts. Pp. 121-130.
2. The § 621 presumption does not infringe upon any constitutional right of a child to maintain a relationship with her natural father. Victoria's assertion that she has a due process right to maintain filial relationships with both Michael and Gerald is, at best, the obverse of Michael's claim and fails for the same reasons. Nor is there any merit to her claim that her equal protection rights have been violated because, unlike her mother and presumed father, she had no opportunity to rebut the presumption of her legitimacy, since the State's decision to treat her differently from her parents pursues the legitimate end of preventing the disruption of an otherwise peaceful union by the rational means of not allowing anyone but the husband or wife to contest legitimacy. Pp. 130-132.
Justice STEVENS, although concluding that a natural father might have a constitutionally protected interest in his relationship with a child whose mother was married to, and cohabitating with, another man at the time of the child's conception and birth, also concluded that the California statutory scheme, as applied in this case, is consistent with the Due Process Clause, since it did not deprive Michael of a fair opportunity to prove that he is an "other person having an interest in the welfare of the child" to whom "reasonable visitation rights" may be awarded in the trial judge's discretion under § 4601. The plurality's interpretation of § 621 as creating an absolute bar to such a determination is not only an unnatural reading of the statute's plain language but is also not consistent with the reading given by the courts below and California courts in other cases, all of which, after deciding that the § 621 presumption barred a natural father from proving paternity, have nevertheless gone on to consider the separate question whether it would be proper to allow the natural father visitation as an "other person" based on the best interests of the child in the circumstances of the particular case. Here, where the record shows that, after its shaky start, the marriage between Carole and Gerald developed a stability that now provides Victoria with a loving and harmonious family home, there was nothing fundamentally unfair in the trial judge's exercise of his discretion to allow the mother to decide whether the child's best interests would be served by allowing the natural father visitation privileges. Pp. 132-136.
SCALIA, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C.J., joined, and in all but n. 6 of which O'CONNOR and KENNEDY, JJ., joined. O'CONNOR, J., filed an opinion concurring in part, in which KENNEDY, J., joined, post, p. 132. STEVENS, J., filed an opinion concurring in the judgment, post, p. 132. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 136. WHITE, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 157.
Robert A.W. Boraks, Washington, D.C., for appellants.
Larry M. Hoffman for appellee.
Justice SCALIA announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE joins, and in all but footnote 6 of which Justice O'CONNOR and Justice KENNEDY join.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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