### No. 95-019 INTHESUPREME

COURTOFTHESTATEOFMONTANA 1995

INTHEMATTEROFTHEPATERNITY OF"ADAM,"AMinor Child "BOB ,'I Petitioner andAppellant, 

## SEP 299985 and "MARY"and"JOHN,"

Defendants andRespondents.

APPEALFROM: District Court oftheEighteenth Judicial District,

In andfor the County of Gallatin, TheHonorable ThomasA. Olson, Judgepresiding.

COUNSELOFRECORD:

ForAppellant: Robert G.McCarthy; Hennessey, Joyce, McCarthy & Wing, Butte, Montana

For Respondents: JohnM.Morrison; Meloy&Morrison, Helena, Montana

Filed: Submitted onBriefs: May25, 1995 Decided: September 29, 1995Justice W.William Leaphart delivered the Opinion of the Court.

'(BobI' appeals from an order of the Eighteenth Judicial District Court, Gallatin County, concluding that it was not in "Adam's," aminor child, best interest to declare paternity in "Bob. II1 Weaffirm. BACKGROUND "Mary0 and "John" moved to Bozeman together in 1990 to establish arestaurant and bakery. At that time, Mary and John lived together and their relationship wasplatonic. Mary met Bob in abusiness context in 1991andthereafter they began anintimate relationship. Bob moved into Mary's and John's apartment in the early months of 1992. InApril 1992, Bob's andMary's relationship ended and Bobmoved out of Mary's andJohn's apartment. In late Mayof 1992, Mary learned that she waspregnant. In June of 1992, Mary requested that Bob relinquish his parental rights. Bobrefused. Mary andJohn married onSeptember 9, 1992. OnDecember 15, 1992, Bobfiled what wastitled 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 asAdam's father onthe birth certificate. OnJanuary 5, 1993, Bobfiled apetition in which heasserted that hewasAdam's biological father. Bob sought adetermination

1Pseudonyms have been used in place of the parties' actual names. 2of 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. Theparties agreed to submit the question of Bob's standing for apre-trial ruling. Thecourt ruled that Bobdid have standing to challenge the presumption that John was the father pursuant to §40-6-107(l), MCA. TheDistrict Court ordered blood drawn from Bob, John andAdam to determine paternity. Mary andJohn opposed the order for blood samples and sought awrit of supervisory control from this Court. Wedenied the writ. Without waiving her right to object to a judicial determination of the father/child relationship, Mary stipulated that BobwasAdam's biological father. After abench trial, the court issued Findings of Fact and Conclusions of Lawin which it determined that it wasnot in Adam's best interest to declare paternity in Bob and, thus, dismissed Bob's petition. Mary and John raise numerous issues which wedo not address because they neither appealed nor cross-appealed. See Rule 4, M.R.App.P. Bob's three issues are summarized asfollows: 1. Whether the District Court erred when it used the best interest of the child asthe standard for determining whether to make ajudicial 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 acontinuance. DISCUSSION 1. Whether the District Court erred when it used the best interest of the child asthe standard for determining whether 3to make ajudicial 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." Bobargues 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." Wedisagree. This is acase of first impression in Montana. Wetherefore look to other jurisdictions for guidance in applying the Uniform Parentage Act (UPA). TheDistrict Court relied heavily onLehr v. Robertson (1983), 463 U.S. 248, 103 S.Ct 2985, 77 L.Ed.Zd 614. Lehr was the putative father of achild born out of wedlock. The mother married another man after the child was born. When the child wasabout two years old, the husband wasgranted adecree 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 adistinction between a"developed parent-child

4relationship" as opposed to a"potential" relationship

When an unwed father demonstrates afull 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 afather toward his children." 

### Id. at 389, n.7. But the mere existence of abiological 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 andto the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in 'promot[ing] away of life' through the instruction of children

. . . as well as from the fact of blood relationship." [Citations omitted; emphasis added.] Lehr, 463U.S. at 261. The Court then went onto explain that the biological connection merely gives anatural father the opportunity to become a"parent": Thesignificance of the biological connection is that it offers the natural father anopportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts somemeasure of responsibility for the child's future, he mayenjoy 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 ofwhere the child's best interests lie. 

### Lehr, 463U.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: Amanis presumed to bethe natural father of achild if: (a) heand the child's natural mother are or have been married to each other andthe child is born during the marriage or within 300 days after the marriage is 5terminated by death, annulment, declaration of

invalidity, ordivorce or after adecree of separation is entered by acourt;

. . . . Cd) while the child is under the age of majority, hereceives the child into his homeand openly holds out the child as his natural child; or (e) heacknowledges his paternity of the child in a writing filed with the department of health and environmental sciences orwith the district court of the county where heresides, 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 awriting filed with the department of health andenvironmental sciences orwith the district court of the county where the acknowledgment was filed. If another manis presumed under this section to bethe child's father, acknowledgment maybeeffected 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 anappropriate action bv apreponderance 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 hefiled anacknowledgment 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 acourt should declare the father/child

6relationship.* The court, therefore, based its decision on case

law from other states as well as LJPA guidelines which it interpreted aspromoting legitimacy. The California Court of Appeals has held that even if a putative father establishes his biological paternity to a child conceived out ofwedlock, but born after the mother married another man, the nature of his relationship to the child is governed bythe best interest of the child. Michael M.v. Giovanna F. (Cal. Ct. App. 1992), 7Cal.Rptr.2d 460, 468. The Washington Supreme Court has held that "[tlhe best interest of the child standard does not entitle acourt to presume that paternity determination is automatically in the child's best interest." McDaniels v. Carlson (Wash. 1987), 738P.2d 254, 261. The court in McDaniels set out factors to be considered when determining whether apaternity determination is in the child's best interest: [Iln determining whether it is in the child's best interest to allow apaternity action by one outside the present family, the trial court should consider the stability of the present homeenvironment, the existence

* Section 40-6-130, MCA, provides that when a child is the subject of anadoption proceeding, the court must determine whether it will be in the best interest of the child to award custody to the putative father. Since Adamis not the subject of anadoption 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 UPAdoes not provide astandard 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." 7or lack thereof of anongoing 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. Acourt must conclude that paternity determination is in the child's best interest based onthe facts in the record. In re Marriage of Rossv. Austin (Kan. 1990), 783P.2d 331, 339. Weagree with the District Court's analysis and adopt the "best interest of the child" standard for deciding whether there should beajudicial declaration of the father/child relationship in apaternity dispute under Montana's UPA. Indetermining whether paternity should bedeclared 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 asocial worker retained by Mary and John. The District Court concluded that based on §40-6-201, MCA, there is arebuttable presumption that achild born into wedlock is legitimate. The court further considered the UPA's presumptions that amanis the natural father of achild if the manis married to the child's mother at the time of birth, 540-6-105(l) (a), MCA; that there is a presumption of paternity when properly acknowledged, S,40-6-105(l) (e), MCA;andthat these presumptions of paternity are subject to rebuttal, §40-6-105(2), MCA. Through the mother's stipulation that BobwasAdam's father, the statutory presumptions in favor of John as the biological father were rebutted. However, aspointed out bythe United StatesSupreme 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 aparent? 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 ahomeenvironment; the stability of the present homeandfamily; 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 andfinancial ties with the child; aswell as any other factors which mayberelevant in assessing the potential benefits or detriments to the child. In the present case, the District Court considered that Bobis probably Adam's father, a fact essentially conceded by Mary. Further, the court noted that Bobhas hadnocontact with Adamand has demonstrated no personal commitment to or responsibility for Adam; nor has he taken steps to obtain suitable employment or housing or to establish achild 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 Adamhas always lived with Mary and

9notice of the trial and the guardian adlitem had not revised her

report to the court. Wedisagree. Bob did not subpoena the guardian ad litem, she therefore proceeded with aplanned vacation andwasout of state at the time of trial. Byexpress 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, wehold that the District Court did not abuse its discretion when it denied Bob's motion for anextension of time

sothat the guardian adlitem could update her report. Toconclude

onthis issue, wenote that the guardian ad litem did not appeal the decision of the District Court. Affirmed.

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