No. 95-019 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

IN THE MATTER OF THE PATERNITY 

OF "ADAM," A Minor Child 

" BOB , 'I 

Petitioner and Appellant, SEP 29 9985 

and 

"MARY" and "JOHN," 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert G. McCarthy; Hennessey, Joyce, McCarthy & 

Wing, Butte, Montana 

For Respondents: 

John M. Morrison; Meloy & Morrison, Helena, Montana 

Filed: 

Submitted on Briefs: May 25, 1995 

Decided: September 29, 1995 
Justice W. William Leaphart delivered the Opinion of the Court. 

'(Bob I' appeals from an order of the Eighteenth Judicial 

District Court, Gallatin County, concluding that it was not in 

"Adam's," a minor child, best interest to declare paternity in 

"Bob. II1 We affirm. 

BACKGROUND 

"Mary 0 and "John" moved to Bozeman together in 1990 to 

establish a restaurant and bakery. At that time, Mary and John 

lived together and their relationship was platonic. Mary met Bob 

in a business context in 1991 and thereafter they began an intimate 

relationship. Bob moved into Mary's and John's apartment in the 

early months of 1992. In April 1992, Bob's and Mary's relationship 

ended and Bob moved out of Mary's and John's apartment. 

In late May of 1992, Mary learned that she was pregnant. In 

June of 1992, Mary requested that Bob relinquish his parental 

rights. Bob refused. Mary and John married on September 9, 1992. 

On December 15, 1992, Bob filed what was titled a "Notice of Intent 

to Claim Paternity" with the Clerk of Court for the Eighteenth 

Judicial District, Gallatin County. Mary gave birth to Adam on 

December 21, 1992. John was listed as Adam's father on the birth 

certificate. 

On January 5, 1993, Bob filed a petition in which he asserted 

that he was Adam's biological father. Bob sought a determination 

1 Pseudonyms have been used in place of the parties' actual 

names. 

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of Adam's paternity and a determination of child custody, 

visitation, and child support obligations. The court appointed a 

guardian ad litem to monitor Adam and report to the court on a 

monthly basis. The parties agreed to submit the question of Bob's 

standing for a pre-trial ruling. The court ruled that Bob did have 

standing to challenge the presumption that John was the father 

pursuant to § 40-6-107(l), MCA. 

The District Court ordered blood drawn from Bob, John and Adam 

to determine paternity. Mary and John opposed the order for blood 

samples and sought a writ of supervisory control from this Court. 

We denied the writ. Without waiving her right to object to a 

judicial determination of the father/child relationship, Mary 

stipulated that Bob was Adam's biological father. 

After a bench trial, the court issued Findings of Fact and 

Conclusions of Law in which it determined that it was not in Adam's 

best interest to declare paternity in Bob and, thus, dismissed 

Bob's petition. Mary and John raise numerous issues which we do 

not address because they neither appealed nor cross-appealed. See 

Rule 4, M.R.App.P. Bob's three issues are summarized as follows: 

1. Whether the District Court erred when it used the best 

interest of the child as the standard for determining whether 

to make a judicial declaration of paternity. 

2. Whether Mary is estopped from denying that Bob is the natural 

father. 

3. Whether the District Court erred in denying Bob's motion for 

a continuance. 

DISCUSSION 

1. Whether the District Court erred when it used the best 

interest of the child as the standard for determining whether 

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to make a judicial declaration of paternity. 

The District court recognized that Bob was, in all 

probability, Adam's biological father. However, in its order 

determining paternity, the District Court stated that "it is not in 

[Adam's] best interest to determine paternity in [Bob]." In its 

order denying Bob's motion to reconsider, the District Court stated 

that "none of the arguments set forth in [Bob's] brief persuade the 

court that a different decision would be in [Adam's] best 

interest." Bob argues that the District Court erred in using the 

"best interest of the child" standard and, for the first time on 

appeal, that the District Court failed to consider his 

constitutional rights to equal protection and due process in its 

balancing of "conflicting presumptions of paternity and 

legitimacy." We disagree. 

This is a case of first impression in Montana. We therefore 

look to other jurisdictions for guidance in applying the Uniform 

Parentage Act (UPA). The District Court relied heavily on Lehr v. 

Robertson (1983), 463 U.S. 248, 103 S.Ct 2985, 77 L.Ed.Zd 614. 

Lehr was the putative father of a child born out of wedlock. The 

mother married another man after the child was born. When the 

child was about two years old, the husband was granted a decree of 

adoption. Although he never supported the child or offered to 

marry the child's mother, Lehr then filed an action to challenge 

the adoption as violating his rights of due process and equal 

protection. In rejecting Lehr's arguments, the United States 

Supreme Court drew a distinction between a "developed parent-child 

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relationship" as opposed to a "potential" relationship 

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, 441 

U.S., at 392, his interest in personal contact with his 

child acquires substantial protection under the Due 

Process Clause. At that ooint it may be said that he 

"act[sl as a father toward his children." Id. at 389, 

n.7. But the mere existence of a biological link does 

not merit eauivalent constitutional protection. The 

actions of iudses neither create nor sever aenetic bonds. 

" [Tlhe importance of the familial relationship, to the 

individuals involved and to the society, stems from the 

emotional attachments that derive from the intimacy of 

daily association, and from the role it plays in 

'promot[ing] a way of life' through the instruction of 

children . . . as well as from the fact of blood 

relationship." [Citations omitted; emphasis added.] 

Lehr, 463 U.S. at 261. The Court then went on to explain that the 

biological connection merely gives a natural father the opportunity 

to become a "parent": 

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 

lie. 

Lehr, 463 U.S. at 262. 

On December 15, 1992, prior to Adam's birth, Bob filed a 

"Notice of Intent to Claim Paternity" with the Clerk of the 

Eighteenth Judicial District Court. Section 40-6-105, MCA, 

provides in relevant part: 

A man is presumed to be the natural father of a child if: 

(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 

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terminated by death, annulment, declaration of 

invalidity, or divorce or after a decree of separation is 

entered by a court; 

. . . . 

Cd) while the child is under the age of majority, 

he receives the child into his home and openly holds out 

the child as his natural child; or 

(e) he acknowledges his paternity of the child in 

a writing filed with the department of health and 

environmental sciences or with the district court of the 

county where he resides, which court or department shall 

promptly inform the mother of the filing of the 

acknowledgment, and she does not dispute the 

acknowledgment within a reasonable time after being 

informed thereof, in a writing filed with the department 

of health and environmental sciences or with the district 

court of the county where the acknowledgment was filed. 

If another man is presumed under this section to be the 

child's father, acknowledgment may be effected only with 

the written consent of the presumed father or after the 

presumption has been rebutted. 

(2) A presumption under this section may be 

rebutted in an appropriate action bv a preponderance of 

the evidence. [Emphasis added.] 

In this case, subsections (a) and Cd) favor John as the 

natural father. These presumptions in John's favor, however, are 

rebutted by Mary's acknowledgment that Bob is the biological 

father. See In re Marriage of Miller (1992), 251 Mont. 300, 825 

P.2d 189, in which a statutory presumption of paternity was 

rebutted when mother and husband acknowledged under oath that the 

husband was not the natural father. In addition, subsection (e) 

supports Bob's claim to paternity since he filed an acknowledgment 

which the natural mother did not dispute. 

Although the UPA utilizes a "best interest" standard in 

certain contexts, it does not specifically establish that standard 

for determining whether a court should declare the father/child 

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relationship.* The court, therefore, based its decision on case 

law from other states as well as LJPA guidelines which it 

interpreted as promoting legitimacy. 

The California Court of Appeals has held that even if a 

putative father establishes his biological paternity to a child 

conceived out of wedlock, but born after the mother married another 

man, the nature of his relationship to the child is governed by the 

best interest of the child. Michael M. v. Giovanna F. (Cal. Ct. 

App. 1992), 7 Cal.Rptr.2d 460, 468. 

The Washington Supreme Court has held that "[tlhe best 

interest of the child standard does not entitle a court to presume 

that paternity determination is automatically in the child's best 

interest." McDaniels v. Carlson (Wash. 1987), 738 P.2d 254, 261. 

The court in McDaniels set out factors to be considered when 

determining whether a paternity determination is in the child's 

best interest: 

[Iln determining whether it is in the child's best 

interest to allow a paternity action by one outside the 

present family, the trial court should consider the 

stability of the present home environment, the existence 

* Section 40-6-130, MCA, provides that when a child is the 

subject of an adoption proceeding, the court must determine whether 

it will be in the best interest of the child to award custody to 

the putative father. Since Adam is not the subject of an adoption 

proceeding, this section is inapplicable. Section 40-6-114, MCA, 

provides for a pretrial recommendation of whether judicial 

determination of paternity would be in the best interest of the 

child. If the recommendation is not accepted and the matter goes 

to trial, the UPA does not provide a standard for resolution of the 

paternity issue. 

Section 40-6-116(3) (a), MCA, allows the judgment of the court 

determining the existence or nonexistence of the parent/child 

relationship to address such things as custody, visitation, bond 

"or any other matter in the best interest of the child." 

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or lack thereof of an ongoing family unit, the extent to 

which uncertainty of parentage already exists in the 

child's mind, and any factors which may be relevant in 

assessing the potential benefits or detriment to the 

child. 

McDaniels, 738 P.2d at 262. A court must conclude that paternity 

determination is in the child's best interest based on the facts in 

the record. In re Marriage of Ross v. Austin (Kan. 1990), 783 P.2d 

331, 339. 

We agree with the District Court's analysis and adopt the 

"best interest of the child" standard for deciding whether there 

should be a judicial declaration of the father/child relationship 

in a paternity dispute under Montana's UPA. In determining whether 

paternity should be declared in Bob, the District Court considered: 

the parties' relationships with each other, their lifestyles and 

incomes; testimony from the parties, testimony from Adam's guardian 

ad litem, and testimony from a social worker retained by Mary and 

John. The District Court concluded that based on § 40-6-201, MCA, 

there is a rebuttable presumption that a child born into wedlock is 

legitimate. The court further considered the UPA's presumptions 

that a man is the natural father of a child if the man is married 

to the child's mother at the time of birth, 5 40-6-105(l) (a), MCA; 

that there is a presumption of paternity when properly 

acknowledged, S, 40-6-105(l) (e), MCA; and that these presumptions of 

paternity are subject to rebuttal, § 40-6-105(2), MCA. 

Through the mother's stipulation that Bob was Adam's father, 

the statutory presumptions in favor of John as the biological 

father were rebutted. However, as pointed out by the United States 
Supreme Court in Lehr, that biological determination merely sets 

the stage for the next question: Is it in the best interest of 

Adam to judicially declare the father/child relationship and 

thereby grant Bob the prerogatives of a parent? The probability 

that Bob is the natural father, although a weighty factor in 

applying the best interest analysis, is not the controlling 

consideration in judicially determining the parent/child 

relationship. As set forth above, the best interest analysis 

requires the court to look beyond the biological ties. The court 

must consider: the existence of a home environment; the stability 

of the present home and family; the extent to which uncertainty of 

parentage already exists in the child's mind; the efforts and 

commitments (if any) that the putative father has taken to 

establish supportive and financial ties with the child; as well as 

any other factors which may be relevant in assessing the potential 

benefits or detriments to the child. 

In the present case, the District Court considered that Bob is 

probably Adam's father, a fact essentially conceded by Mary. 

Further, the court noted that Bob has had no contact with Adam and 

has demonstrated no personal commitment to or responsibility for 

Adam; nor has he taken steps to obtain suitable employment or 

housing or to establish a child support fund. The District Court 

weighed these facts against the stability of Mary's and John's 

marital relationship, their care for Adam, and their financial 

stability. The District Court noted that John's name appears on 

Adam's birth certificate, that Adam has always lived with Mary and 

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notice of the trial and the guardian ad litem had not revised her 

report to the court. We disagree. 

Bob did not subpoena the guardian ad litem, she therefore 

proceeded with a planned vacation and was out of state at the time 

of trial. By express agreement of both parties, she testified by 

telephone. She testified that she relied "on common sense" and 

that she had not seen Adam in seventeen months. She appears to 

have made only limited efforts to monitor and report on Adam. 

Given these facts, we hold that the District Court did not abuse 

its discretion when it denied Bob's motion for an extension of time 

so that the guardian ad litem could update her report. To conclude 

on this issue, we note that the guardian ad litem did not appeal 

the decision of the District Court. 

Affirmed. 

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