# Michael H. v. Gerald D./Dissent White

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Stevens O'Connor
* Dissenting Opinions Brennan White
Justice WHITE, with whom Justice BRENNAN joins, dissenting.
California law, as the plurality describes it, ante, at 119, tells us that, except in limited circumstances, California declares it to be "irrelevant for paternity purposes whether a child conceived during, and born into, an existing marriage was begotten by someone other than the husband" (emphasis in original). This I do not accept, for the fact that Michael H. is the biological father of Victoria is to me highly relevant to whether he has rights, as a father or otherwise, with respect to the child. Because I believe that Michael H. has a liberty interest that cannot be denied without due process of the law, I must dissent.
* Like Justices BRENNAN, MARSHALL, BLACKMUN, and STEVENS, I do not agree with the plurality opinion's conclusion that a natural father can never "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." Ante, at 133 (STEVENS, J., concurring in judgment). Prior cases here have recognized the liberty interest of a father in his relationship with his child. In none of these cases did we indicate that the father's rights were dependent on the marital status of the mother or biological father. The basic principle enunciated in the Court's unwed father cases is that an unwed father who has demonstrated a sufficient commitment to his paternity by way of personal, financial, or custodial responsibilities has a protected liberty interest in a relationship with his child.
We have not before faced the question of a biological father's relationship with his child when the child was born while the mother was married to another man. On several occasions however, we have considered whether a biological father has a constitutionally cognizable interest in an opportunity to establish paternity. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), recognized the biological father's right to a legal relationship with his illegitimate child, holding that the Due Process Clause of the Fourteenth Amendment entitled the biological father to a hearing on his fitness before his illegitimate children could be removed from his custody. We rejected the State's treatment of Stanley "not as a parent but as a stranger to his children." Id., at 648, 92 S.Ct., at 1211.
Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978), also expressly recognized due process rights in the biological father, even while holding that those rights were not impermissibly burdened by the State's application of a "best interests of the child" standard. Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979), invalidated on equal protection grounds a statute under which a man's children could be adopted by their natural mother and her husband without the natural father's consent.
In Lehr v. Robertson, 463 U.S. 248, 261-262, 103 S.Ct. 2985, 2993-2994, 77 L.Ed.2d 614 (1983), though holding against the father in that case, the Court said clearly that fathers who have participated in raising their illegitimate children and have developed a relationship with them have constitutionally protected parental rights. Indeed, the Court in Lehr suggested 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. The Court upheld a stepparent adoption over the natural father's objections, but acknowledged that "the existence or nonexistence of a substantial relationship between parent and child is a relevant criterion in evaluating both the rights of the parent and the best interests of the child." Id., at 266-267, 103 S.Ct., at 2996-2997. There, however, the father had never established a custodial, personal, or financial relationship with his child. Lehr had never lived with the child or the child's mother after the birth of the child and had never provided any financial support.
In the case now before us, Michael H. is not a father unwilling to assume his responsibilities as a parent. To the contrary, he is a father who has asserted his interests in raising and providing for his child since the very time of the child's birth. In contrast to the father in Lehr, Michael had begun to develop a relationship with his daughter. There is no dispute on this point. Michael contributed to the child's support. Michael and Victoria lived together (albeit intermittently, given Carole's itinerant lifestyle). There is a personal and emotional relationship between Michael and Victoria, who grew up calling him "Daddy." Michael held Victoria out as his daughter and contributed to the child's financial support. (Even appellee concedes that Michael has "made greater efforts and had more success in establishing a father-child relationship" than did Mr. Lehr. Brief for Appellee 13, n. 6.) The mother has never denied, and indeed has admitted, that Michael is Victoria's father. Lehr was predicated on the absence of a substantial relationship between the man and the child and emphasized the "difference between the developed parent-child relationship that was implicated in Stanley and Caban, and the potential relationship involved in Quilloin and [Lehr ]." Lehr, supra, at 261, 103 S.Ct., at 2993. "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, 441 U.S., at 392, 99 S.Ct., at 1768, his interest in personal contact with his child acquires substantial protection under the Due Process Clause." Lehr, supra, 463 U.S., at 261, 103 S.Ct., at 2993. The facts in this case satisfy the Lehr criteria, which focused on the relationship between father and child, not on the relationship between father and mother. Under Lehr a "mere biological relationship" is not enough, but in light of Carole's vicissitudes, what more could Michael have done? It is clear enough that Michael more than meets the mark in establishing the constitutionally protected liberty interest discussed in Lehr and recognized in Stanley v. Illinois, supra, and Caban v. Mohammed, supra. He therefore has a liberty interest entitled to protection under the Due Process Clause of the Fourteenth Amendment.
California plainly denies Michael this protection, by refusing him the opportunity to rebut the State's presumption that the mother's husband is the father of the child. California law not only deprives Michael of a legal parent-child relationship with his daughter Victoria but even denies him the opportunity to introduce blood-test evidence to rebut the demonstrable fiction that Gerald is Victoria's father. Unlike Lehr, Michael has not been denied notice. He has, most definitely, however, been denied any real opportunity to be heard. The grant of summary judgment against Michael was based on the conclusive presumption of Cal.Evid.Code Ann. § 621 (West Supp. 989), which denied him the opportunity to prove that he is Victoria's biological father. The Court gives its blessing to § 621 by relying on the State's asserted interests in the integrity of the family (defined as Carole and Gerald) and in protecting Victoria from the stigma of illegitimacy and by balancing away Michael's interest in establishing that he is the father of the child.
The interest in protecting a child from the social stigma of illegitimacy lacks any real connection to the facts of a case where a father is seeking to establish, rather than repudiate, paternity. The "stigma of illegitimacy" argument harks back to ancient common law when there were no blood tests to ascertain that the husband could not "by the laws of nature" be the child's father. Judicial process refused to declare that a child born in wedlock was illegitimate unless the proof was positive. The only such proof was physical absence or impotency. But we have now clearly recognized the use of blood tests as an authoritative means of evaluating allegations of paternity. See, e.g., Little v. Streater, 452 U.S. 1, 6-7, 101 S.Ct. 2202, 2205-2206, 68 L.Ed.2d 627 (1981). I see no reason to debate the plurality's multilingual explorations into "spousal nonaccess" and ancient policy concerns behind bastardy laws. It may be true that a child conceived in an extramarital relationship would be considered a "bastard" in the literal sense of the word, but whatever stigma remains in today's society is far less compelling in the context of a child of a married mother, especially when there is a father asserting paternity and seeking a relationship with his child. It is hardly rare in this world of divorce and remarriage for a child to live with the "father" to whom her mother is married, and still have a relationship with her biological father.
The State's professed interest in the preservation of the existing marital unit is a more significant concern. To be sure, the intrusion of an outsider asserting that he is the father of a child whom the husband believes to be his own would be disruptive to say the least. On the facts of this case, however, Gerald was well aware of the liaison between Carole and Michael. The conclusive presumption of evidentiary rule § 621 virtually eliminates the putative father's chances of succeeding in his effort to establish paternity, but it by no means prevents him from asserting the claim. It may serve as a deterrent to such claims but does not eliminate the threat. Further, the argument that the conclusive presumption preserved the sanctity of the marital unit had more sway in a time when the husband was similarly prevented from challenging paternity.
"The emphasis of the Due Process Clause is on 'process.' " Moore v. East Cleveland, 431 U.S. 494, 542, 97 S.Ct. 1932, 1957, 52 L.Ed.2d 531 (1977) (WHITE, J., dissenting). I fail to see the fairness in the process established by the State of California and endorsed by the Court today. Michael has evidence which demonstrates that he is the father of young Victoria. Yet he is blocked by the State from presenting that evidence to a court. As a result, he is foreclosed from establishing his paternity and is ultimately precluded, by the State, from developing a relationship with his child. "A fundamental requirement of due process is 'the opportunity to be heard.' Grannis v. Ordean, 234 U.S. 385, 394 [34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914) ]. It is an opportunity which must be granted at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). I fail to see how Michael was granted any meaningful opportunity to be heard when he was precluded at the very outset from introducing evidence which would support his assertion of paternity. Michael has never been afforded an opportunity to present his case in any meaningful manner.
As the Court has said: "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." Lehr, 463 U.S., at 262, 103 S.Ct., at 2993. It is as if this passage was addressed to Michael. Yet the plurality today recants. Michael eagerly grasped the opportunity to have a relationship with his daughter (he lived with her; he declared her to be his child; he provided financial support for her) and still, with today's opinion, his opportunity has vanished. He has been rendered a stranger to his child.
Because Cal.Evid.Code Ann. § 621, as applied, should be held unconstitutional under the Due Process Clause of the Fourteenth Amendment, I respectfully dissent.

## 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).
Public domainPublic domainfalsefalse