Michael H. v. Gerald D.

PETITIONER:Michael H. et al.
RESPONDENT:Gerald D.
LOCATION:California State Capitol

DOCKET NO.: 87-746
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: State appellate court

CITATION: 491 US 110 (1989)
ARGUED: Oct 11, 1988
DECIDED: Jun 15, 1989

ADVOCATES:
Larry M. Hoffman – argued the cause for the appellee
Robert A.W. Boraks – argued the cause for the appellants

Facts of the case

Gerald D. was the presumptive father of Victoria D. since she was born to his wife Carole D.. However, Carole had an adulterous partner, Michael H., who obtained blood tests indicating that he was likely the biological father. When Michael obtained visitation rights in a California state court, Gerald argued that Michael had no ground under California law to challenge Gerald’s paternity since more than two years had passed since Victoria’s birth. According to Cal. Evid. Code 621, the child is “presumed to be a child of the marriage” and another man can only challenge this presumption within two years of birth. The court ruled in favor of Gerald and canceled Michael’s visitation rights. Michael claimed that Code 621 violated his Fourteenth Amendment due process rights by denying him an opportunity to establish his paternity. A California Court of Appeals upheld the constitutionality of Code 621.

Question

Does Cal. Evid. Code 621 violate the Due Process Clause by denying a possible biological father the chance to establish his paternity of a child after two years have passed since the child’s birth?

William H. Rehnquist:

We’ll hear argument next in No. 87-746, Michael H. and Victoria D. v. Gerald D..

Mr. Boraks, you may proceed whenever you’re ready.

Robert A.W. Boraks:

Thank you.

Mr. Chief Justice, may it please the Court:

Before the Court is the case of a natural father whose claim of paternity was precluded by the operation of a California state statute, which had the effect of terminating an existing parent-child relationship.

Also before the Court is the natural father’s daughter, who is represented by a court-appointed independent guardian ad litem.

Both are here challenging the Constitutionality of that California statute.

With the Court’s permission I would like to begin with a synopsis of the pertinent facts in this case.

In the fall of 1980, Michael was having an intimate relationship with Carole, who was married to Gerald.

Carole became pregnant with Michael’s child.

Victoria, the child, was born in May of 1981.

Michael, Carole and Victoria subsequently had an HLA test done which showed a 98.06, I believe, percent probability of paternity.

In November of 1982, Michael filed suit in the California courts to have himself declared Victoria’s father.

William H. Rehnquist:

This was while the mother was married to Gerald, right?

Robert A.W. Boraks:

I believe that all of the events I’m describing, Your Honor, occurred while–

William H. Rehnquist:

They have never been divorced?

Robert A.W. Boraks:

–Not to my knowledge.

Certainly not as of the end of the record in this case.

In his suit Michael asked to be declared Victoria’s father, he asked that the court set a reasonable support level for him to provide, and he asked for the court to allow him visitation.

After the suit was filed, there came a time when Carole and Victoria lived with Michael, and they lived with Michael throughout most of the third year of Victoria’s life.

During that period Michael was held out by Carole and by himself to the world and to Victoria as Victoria’s father.

He cared for the child, he supported the child and the mother, and in all respects he assumed the role of father.

And as a consequence, Victoria came to know him as her daddy and a parent-child relationship developed between the two of them.

This lasted until around May of 1984 when Carole broke up with Michael.

Antonin Scalia:

How long was that period in all?

Robert A.W. Boraks:

There were two separate periods, the one I’ve just described–

Antonin Scalia:

When the child was living with Michael.

Robert A.W. Boraks:

–As I say, there were two separate periods.

The one I just described was from about August of 1983 till around late April, early May of 1984.

Eight, nine, maybe 10 months.

Antonin Scalia:

August to April, eight months.

Nine months.

Give you nine.

Robert A.W. Boraks:

I accept your arithmetic.

Antonin Scalia:

What, what was the other period?

Robert A.W. Boraks:

The other period was a period in, for about three months in early 1982, January, February, and March.

I’m not sure exactly how many days or whether it was a full three months or only part of that quarter, but–

Antonin Scalia:

And that contrasts to how much of a period that the child was living with Gerald?

Robert A.W. Boraks:

–As of May of 1984?

Or as, as of what point in time… as of May of 1984–

Antonin Scalia:

As of the time of the decision below.

Robert A.W. Boraks:

–Oh, as of the time… in January of 1985, as of the time of the summary judgment being granted to Gerald, I would say that Gerald probably had the edge in terms of time.

But I’m not sure by how much.

John Paul Stevens:

Well, you know he had the edge, by a good deal, no.

I mean, the facts are the facts.

Robert A.W. Boraks:

Well, yes, they are, and I’m not trying to play with them.

I don’t think it was by a good deal, Your Honor.

I think maybe by three, four months.

But I don’t have, I don’t have it clearly fixed in my mind what the discrepancy might have been as of that point in time.

In any event, after Carole and Michael broke up, the court below awarded Michael pendente lite visitation for a period of time, and then also ordered an evaluation of the situation by an independent court-appointed psychologist.

And that evaluation did take place prior to the granting of the summary judgment motion.

The psychologist interviewed and examined Michael, Carole, Gerald and Victoria, wrote an extensive report.

And his bottom-line recommendation was that Michael be recognized as a parent of Victoria and allowed visitation.

And this recommendation was based solely on his assessment, that is they psychologist’s assessment of what was in Victoria’s best interest.

After that report came out, Gerald filed a motion for summary judgment, which was granted in January of 1985.

In granting the motion for summary judgment, the trial court applied the conclusive presumption of California Evidence Code Section 621.

And based on that provision he adjudicated Gerald to be the father and terminated the relationship between Michael and Victoria.

What Section 621 says is that, given certain predicate facts, a child conceived by a married woman is conclusively presumed to the child of that woman’s husband.

Michael and Victoria appealed, and the summary judgment decision was affirmed by the Court of Appeal.

In affirming the lower court’s granting of summary judgment, I believe that what the Court of Appeal did was close a question left open by the California Supreme Court in a previous case called Michelle W..

Robert A.W. Boraks:

In that case the California Supreme Court left open the question of whether Section 621 could be Constitutionally applied to terminate an ongoing parent-child relationship.

The Court of Appeal, without saying so explicitly but in logic, necessarily answered that question, yes.

And in our view erroneously so.

Harry A. Blackmun:

Mr. Boraks, where is Victoria now?

Robert A.W. Boraks:

Well, I’m not entirely sure, Your Honor.

I believe that she’s in New York.

I have reason to believe that she’s in New York living with Carole and Gerald.

Sandra Day O’Connor:

Mr. Boraks–

Robert A.W. Boraks:

Justice O’Connor.

Sandra Day O’Connor:

–I guess this Court has articulated the view that the biological relationship of the father with the child alone is not sufficient to give him any Constitutionally protected liberty interest in that relationship.

There has to be something more.

And in the Stanley against Illinois case, I believe, the father had lived with the child for 18 years.

And in the Caban case, I think, it was something in the nature of four years.

Do you think that this off and on period of seven or eight months in your situation representing the father here effectively presents a substantial relationship of that nature?

Robert A.W. Boraks:

Yes, Your Honor.

I don’t think the analysis is quantitative, or is meant to be in those cases.

I believe it’s qualitative.

I believe that it depends on the quality of the relationship and the nature of the conduct of the natural father.

I believe–

Sandra Day O’Connor:

So it could be a month or so and that would be enough?

Robert A.W. Boraks:

–If, if–

Sandra Day O’Connor:

A week.

Robert A.W. Boraks:

–If that were enough, in fact, which I doubt it could be–

Sandra Day O’Connor:

So it is quantitative in a sense.

Robert A.W. Boraks:

–No, it’s qualitative, but there’s a relationship between quantity and quality.

There’s a relationship between the… there’s a connection, a logical connection involving the amount of time it takes to develop a qualitative relationship that gives rise to the Constitutional rights.

I’m not qualified… no pun intended… but I’m not qualified to say what that period of time is.

But I think that clearly that relationship did develop on this record in this case.

Sandra Day O’Connor:

What you’re asking for on behalf of the father is a recognition of a right to a hearing, to establish the parental relationship.

Is that correct?

Robert A.W. Boraks:

Yes, Your Honor.

Sandra Day O’Connor:

Would there any, be anything at issue in that hearing other than that parental relationship?

Doesn’t involve custody.

Robert A.W. Boraks:

Well, that has never–

Sandra Day O’Connor:

Or visitation.

Robert A.W. Boraks:

–That has never… custody has not come up in this case.

Certainly it would involve visitation.

I think it involves the status, the legal status of parentage, and to borrow a phrase, a bundle of rights attendant to that legal status.

Sandra Day O’Connor:

Let me ask you this.

If this Court were to determine that the father was entitled to some hearing to establish the parental relationship, would the child through her guardian be entitled, under California law, to appear at that hearing and to be represented and to be heard?

Robert A.W. Boraks:

I can’t cite chapter and verse of why I believe this is so, but I do believe that the child would be entitled to–

Sandra Day O’Connor:

As a matter of California law.

Robert A.W. Boraks:

–I believe as a matter of California law, and I believe as a matter of Constitutional law.

Sandra Day O’Connor:

Then why would we have to address here any question concerning the child’s Constitutionally protected liberty interest?

Is that anything that we have to determine then here?

Robert A.W. Boraks:

I think that they’re reciprocal in nature.

It’s a symmetrical concept.

The relationship involves a symmetry.

Sandra Day O’Connor:

Well, that’s a pretty big unanswered question.

What the right of the child is, apart from the parent.

What I’m trying to explore is why there’s any need to determine that, if in any event she would be entitled to be heard in any hearing in California.

Robert A.W. Boraks:

I understand.

If the Court were to determine that Michael is entitled to a hearing, I believe the Court could stop there, and not have to go on to reach the question of whether Victoria is entitled to a hearing as a matter of Constitutional analysis.

Sandra Day O’Connor:

Are you going to argue here this morning that she is entitled in her own right to have that hearing?

Robert A.W. Boraks:

Well, I was certainly planning to argue that the failure to hold a hearing, the failure to inquire into, on the merits into the issue of where her best interests lay is a Constitutional deprivation with respect to her.

And I had not planned to abandon that argument, but I do agree that what you, what you say, Justice O’Connor, is correct.

Sandra Day O’Connor:

Well, suppose there’s been an adoption proceeding, and some child has been adopted.

Now, does that child have a right then to go in later and establish a parental relationship with a biological parent?

Robert A.W. Boraks:

Well, with whom the child has had a relationship?

That’s a much tougher question.

Robert A.W. Boraks:

I’m not sure of the answer to that.

But in this case I am sure of the answer.

Byron R. White:

And I suppose the child in this case could, if the parent, if parentage was proven, could ask for support.

Robert A.W. Boraks:

The, the notion of a support obligation was inherent in Michael H.’s complaint.

He understood that, he acknowledged that–

Byron R. White:

I know but, I know he understood it, but whether he understood it or not–

Robert A.W. Boraks:

–Right.

Even if he didn’t understand it–

Byron R. White:

–I suppose the child could press for support if the child proved the parentage.

Robert A.W. Boraks:

–Right.

Michael could be made to understand his support obligation, whether he understood it or not.

William H. Rehnquist:

So any time a wife has a child by somebody other than the husband it kind of becomes a menage a trois?

The lover is introduced into the structural relationship of the marriage.

Robert A.W. Boraks:

Well, not any time, Your Honor, because–

William H. Rehnquist:

Well, with one, one week, you said, would be enough.

Robert A.W. Boraks:

–No, I hope I didn’t say that.

I didn’t mean to say that.

I said I didn’t think it would be.

But I wasn’t really qualified to deal with how much time it takes to develop the qualitative relationship necessary to–

William H. Rehnquist:

But it would be, it would be a factual determination in every case.

I mean, if you can’t tell, if it’s strictly a question of, you know, how does it grab you, the state can’t lay down any rule.

It’s got to have a hearing every time this happens, and the lover-father wants to get in the act.

Robert A.W. Boraks:

–What the rule has to be, Your Honor, we contend, is that any time a relationship has been established between natural father and natural child which qualifies for a liberty interest under this Court’s test, that any time that occurs there must be a hearing.

William H. Rehnquist:

Well, but that’s tautological.

Well, what, what relationship does qualify for a liberty interest?

Robert A.W. Boraks:

It’s a relationship that has two elements.

Number one, biological paternity under this Court’s decisions, and number two, action by the natural father to come forward and grasp the opportunity to serve as father in fact and develop, to develop a father-child relationship with his natural child.

William H. Rehnquist:

Well, what if, what if the natural father comes over to the house and says, I want to see my natural father, the husband says, get out of here.

Now, is the natural father entitled to pursue that relationship even though the husband does not want him to?

Robert A.W. Boraks:

Well, that’s harder question, and not one that I have to answer for this case.

Robert A.W. Boraks:

But I would answer it, no.

That that’s not required.

That the second element of what is necessary to establish a liberty interest is absent.

The man may, the natural father may be pursuing that element, may be trying to get that element.

But if he hasn’t gotten it, then he does not have a liberty interest under this Court’s decisions.

And the problem with Section 621 is it makes no distinction between two distinct subclasses, natural parents who have developed a relationship, and natural parents who have not.

They’re treated the same.

Byron R. White:

But as far as the child is concerned it seems to me it wouldn’t make any difference whether there’s been a father-child relationship established.

As far as the child is concerned the child can, if you can prove parenthood, can get support.

And is entitled to a hearing for that.

Robert A.W. Boraks:

Well–

Byron R. White:

Isn’t that right?

Robert A.W. Boraks:

–I… no, I don’t think the child has a Constitutional right in the absence of a relationship to support.

I think that’s a matter that could be committed to state law, and that California could say that a child is not entitled to support from a natural father in a circumstance covered by Section 621 where there has been no established relationship.

I think California’s free to do that statutorily.

Anthony M. Kennedy:

I’m somewhat surprised you conceded in your answer to the Chief Justice that the father does not have the right to establish the relation, because under your theory of the case it’s the father’s natural expectations, his great desire to be a father that is really the propelling force of your case.

It’s not just protecting the relation that’s happened for seven months.

So it seems to me that the logical thrust of your case would require you to answer the Chief Justice’s question differently, that the father, if you prevail, does have this right to establish a relation.

Robert A.W. Boraks:

Well, the reason I answered the Chief Justice the way I do is because I feel compelled to answer within the parameters of this Court’s decision.

Anthony M. Kennedy:

Well, we’re trying to, we’re trying to explore the dimensions and the articulation of the theory that we would have to adopt in order to rule for you in this case.

Robert A.W. Boraks:

Well, I don’t want to discourage the Court from adopting a principle that mere biological paternity, that being a natural father in and of itself gives rise to certain rights.

Anthony M. Kennedy:

But it seemed to me by your answer to the Chief Justice you foreclose that.

Robert A.W. Boraks:

Well, I’ve only not argued it.

I don’t know that the Court is not free to re-examine the limitations of Lehr v. Robertson and to say that, upon further consideration, the question wasn’t really foreclosed in that case but it was pretty soundly dealt with, that upon further consideration there aren’t necessarily two elements to the liberty interest, that is biology and the assumption of parental responsibilities, but mere biology has attendant to it certain rights.

That was, that idea was not foreclosed by Lehr v. Robertson, but the language was pretty discouraging in terms of my standing and making an argument in the face of that, that mere biology would suffice.

So perhaps I chickened out, but… it feels, I feel that the prudent way for me to proceed is based on this Court’s decisions.

Byron R. White:

Well, absent, absent this relationship you talk about, if Gerald had, had asked to adopt the girl… Victoria, is that her name?

Robert A.W. Boraks:

Victoria.

Byron R. White:

Would, would he have had to give notice to Michael?

Robert A.W. Boraks:

Absent the relationship, Justice White.

Robert A.W. Boraks:

Not as I read this Court’s previous decisions.

And I’m not sure what the answer is under California state law.

I believe the Court is going to address that question in another case.

But–

Antonin Scalia:

Mr. Boraks, do any of those prior decisions involve the situation where the relationship has already been terminated, where the termination is not imposed by the state?

I mean, you know, the classic decision of ours is the one in which the state says that the biological parent who’s been raising the child for many years is simply automatically, simply by reason of having sired the child out of wedlock, not a fit parent.

But there it is the state that is depriving the person of that liberty interest by terminating the relationship.

Here the relationship has been terminated, not by the state but by the mother and the, and the marital father taking the child away.

Is it the state that’s terminating the liberty interest here?

Robert A.W. Boraks:

–Yes, Your Honor.

Because before the ruling on the summary judgment motion, Michael had visitation rights.

The relationship between Michael and Carole was not terminated by the state.

Antonin Scalia:

Well, I don’t know what you mean by visitation rights.

Robert A.W. Boraks:

Well, he had an… he was awarded pendente lite visitation.

And had he been recognized as a parent, he at least would have been entitled to be heard on the question of continuing visitation.

Antonin Scalia:

You’re asking the state to create a liberty interest that he doesn’t now have.

As the litigation begins, he has no access to the child.

The child is being raised by, by a husband and wife, and he is not allowed to visit.

Now, where is the state depriving him of some, something that he now has?

Robert A.W. Boraks:

In order to answer that question I think one has to focus, has to look at a particular point in time.

As of November of 1982, he had some relationship with the child.

Two and a half, three months, I’m not sure exactly what point in time, in early 1982.

Antonin Scalia:

Who terminated that?

It wasn’t the state.

Robert A.W. Boraks:

No.

Carole did.

John Paul Stevens:

And he didn’t sue Carole, did he?

She’s not a party to the case.

Robert A.W. Boraks:

Well, he did sue her originally.

Oh.

Robert A.W. Boraks:

But it was Gerald’s summary judgment motion that was granted.

So–

John Paul Stevens:

But she’s not a party in this Court anyway.

Robert A.W. Boraks:

–She’s not a party in this Court, is my understanding.

Your Honor, I just want to, I want to save some time for rebuttal, but I want to kind of get to a bottom-line position here.

What we’re saying is that whenever one finds a natural father who has developed a cognizable liberty interest in a relationship with his natural child under the decisions of this Court, that that relationship cannot be terminated by the state absent a hearing on the merits.

That is, where the positions of the parties and the interests of the parties are examined–

John Paul Stevens:

Mr. Boraks, I think I interrupted and you hadn’t really answered Justice Scalia’s question.

How can you say that at the time the lawsuit was filed the relationship had been terminated by the state?

Robert A.W. Boraks:

–Well–

John Paul Stevens:

The state hadn’t done anything.

Robert A.W. Boraks:

–That’s true.

It was a suit between private parties.

But ultimately the relationship got terminated by the state.

John Paul Stevens:

Well, it just didn’t get revitalized by the state.

Robert A.W. Boraks:

Well–

John Paul Stevens:

Because it was over as of the time, at least as of the date the lawsuit was filed there was no relationship, no ongoing relationship between your client and the child.

Robert A.W. Boraks:

–Well, it did, it did go on, though, Your Honor, after the suit was filed.

It later–

Robert A.W. Boraks:

It later went on.

I’m not saying there was any Constitutional deprivation based on anything the state did prior to January of 1985, when the state applied Section 621 to rule that Michael had no parental rights, which resulted in an effective termination–

John Paul Stevens:

–Would you have a Constitutional claim if the order of the court had been, well, I think the, he’s the natural father, but I don’t think it’s in the best interests of the child to give him visitation rights or to enter any kind of a declaration in the case, and I’ll dismiss the case.

Robert A.W. Boraks:

–After a hearing on the merits of that?

John Paul Stevens:

I’ll assume everything you’ve alleged in your complaint is true, and granting all those facts, and without regard to the statute I simply will deny relief, because there’s a family here that I don’t want to bust up.

Robert A.W. Boraks:

Well, without a hearing, if the court is basing it on the–

John Paul Stevens:

Assuming everything alleged in the complaint is true–

Robert A.W. Boraks:

–Yes.

John Paul Stevens:

–So he just said, I don’t need a hearing to establish facts that are not–

Robert A.W. Boraks:

Right.

I can determine the best interests of the child and base a decision on that factor without a hearing, I would say, I would make the same Constitutional claim.

Robert A.W. Boraks:

That it’s not possible to make that kind of a determination without a hearing involving the merits of that question.

And in this case in particular the only evidence there is in the record as to what was in Victoria’s best interest is the suggestion by an independent psychologist that it was in her best interests that a relationship continue.

Now a court is not bound by that, certainly.

But that should be enough to suggest that failing to address that question was a deprivation of Constitutional proportions.

I’d like to, if I may, save the rest of my time for rebuttal.

William H. Rehnquist:

–Thank you, Mr. Boraks.

We’ll hear now from you, Mr. Hoffman.

Larry M. Hoffman:

Mr. Chief Justice, and may it please the Court:

Although I hadn’t intended to do so, I think I should begin with a slight reference to the facts of this case, because I don’t think all of the facts that are relevant have been made known to you today by Mr. Boraks.

I represent the husband, Gerald.

It is Gerald who was, while cohabiting with his wife, learns that his wife is pregnant.

He joins her in Lamaze training, he participate in the birth of the child, he is living with his wife and his daughter during her early months and doing all that we would normally expect of a father to do for his daughter.

On the child’s first birthday he receives a telephone call from Michael H., informing him for the first time of Michael’s claim of biological responsibility.

Six months later, when Victoria is 18 months old, Michael commences this action.

At the time that the action was commenced, Michael had virtually no relationship whatsoever with Victoria.

I, in fact, was retained as counsel for Carole when this case was first filed and she was first served.

And our immediate response was to file a motion for summary judgment.

The record will reflect that shortly after Carole responded to the complaint with her answer, she filed a motion for summary judgment.

At that time there was no relationship that Mr. Boraks speaks of that may have given Michael any Constitutionally protected interest in a relationship with Victoria.

John Paul Stevens:

Well, he had lived with the child for about three months.

Larry M. Hoffman:

The three months that I think Mr. Boraks refers to is–

John Paul Stevens:

January through March.

Larry M. Hoffman:

–A period of about six-weeks–

John Paul Stevens:

Pardon me?

Larry M. Hoffman:

–It happens to span the end of January to the beginning of March of 1982, which was when Victoria was approximately seven months old.

And Carole had visited Michael at his residence in the Virgin Islands.

And that was during a period of separation from Gerald.

The relationship that Mr. Boraks refers to as being a significant one, and one which confers on Michael the Constitutional right to interfere with the relationship between Carole and her husband, my client, is one that developed during the pendency of this action.

When Carole had filed a summary judgment motion, the record will reflect that on the eve of the hearing there was a meeting that occurs between Michael and Carole.

And Carole then took her motion off calendar, and then allowed access, Michael access to Victoria.

Larry M. Hoffman:

I would also point out that that period, that eight month period that Mr. Boraks refers to, was not an eight consecutive month period.

There were periods during which Michael was not in Los Angeles, where Carole and Victoria were.

In fact by my count, I count a total of, over that eight month period, of approximately 100 days that Michael spent in the house with Victoria and with Carole.

And when Carole terminated her relationship with Michael, she terminated Michael’s relationship with Victoria.

Carole returned then to her husband, and she has since been living with her husband and Victoria and the siblings of Victoria in New York.

You are being asked here to invalidate a longstanding part of California’s paternity law.

This is a paternity action that we’re dealing with here.

You’re being told that the statute is applied blindly and mechanically to establish the fact, by presumption, that a husband invariably in every case is the man who is responsible for the conception of his wife’s child.

That is a misrepresentation of Section 621’s purpose or of its effect.

What Section 621 is is a rule for identifying the father of a child which does not look to the facts of conception as the basis for identifying the man on whom the state will confer the rights and impose the obligations of paternity.

We simply don’t think in these cases that the fact of biological responsibility is as significant as, for example, in the traditional paternity action, where a mother is asking an unwilling man who denies responsibility and will have no relationship with the child to suffer the obligation, the financial obligations of raising a child that he does not want and who was not planned, and the man is seeking to avoid that responsibility.

That is not the–

Byron R. White:

Is the mother in that case acting on behalf of the child?

Larry M. Hoffman:

–I think the mother’s interests are coincident with the child’s interests in respect to their desire for support.

Byron R. White:

So whether or not–

Larry M. Hoffman:

I think the state’s interest is the same.

Byron R. White:

–Whether or not there’s been any relationship between the biological father and the child, the mother and the child are entitled to go after him for support.

Larry M. Hoffman:

Precisely.

And we think that the causal relationship between a man’s act of engaging in a sexual act and the result of a child being born who is in need of support justifies–

Byron R. White:

So the daughter has a right to have a hearing as to whether that father, that person is her father.

Larry M. Hoffman:

–The biological, the person who’s biologically responsible, no, because in this case, in a case which is governed by Section 621 where there is a… my client tells you that you don’t need to establish the support obligation of Michael.

There’s no question but that Victoria is going to be supported no matter what the result in this case.

My client too, for the child’s entire minority, has been very willing to support her and has supported her.

Byron R. White:

I know, I understand.

Larry M. Hoffman:

The issue of support isn’t implicated in this case.

Byron R. White:

But in my example, an unwilling biological father can be sued by the mother and the child for support.

Larry M. Hoffman:

Yes.

There’s no question about that.

Byron R. White:

And they both are entitled to a hearing to establish paternity.

Larry M. Hoffman:

For the purpose of establishing his support obligation.

Yes, yes.

Larry M. Hoffman:

Yes.

William H. Rehnquist:

And that’s true even though the mother was married at all times to someone else?

Larry M. Hoffman:

No.

Not in a case governed by Section 621.

And it isn’t only the fact that the mother is married at all times to someone else.

Byron R. White:

You mean that, you mean that statute would also bar the mother and the daughter from suing the biological father, if the mother is, was married to someone else at the time of conception?

Larry M. Hoffman:

It would stop the suit from going forward, assuming that the husband is available and willing to assume the parental responsibilities.

We presume in all cases in California that each child has one and only one father, and in that man we impose all responsibilities and we grant all rights to belong to the father.

Byron R. White:

Well, suppose the husband has become incapacitated and can’t work and has no money and can’t support the child, and there’s the biological father down the street, can the mother and the child–

Larry M. Hoffman:

No.

We don’t think so.

I think that if–

Byron R. White:

–So the answer is, the California statute bars their action as well?

Larry M. Hoffman:

–If the husband… the California statute provides that one man will be recognized as the father of this child for all purposes.

If that man is the husband, then regardless of his financial situation or the child’s needs economically, the action against the biological, the man who’s biologically responsible would be barred.

Byron R. White:

Well, what if, what if the father, what if the husband has died?

He was the husband at the time of conception, but then he’s died?

Larry M. Hoffman:

Well, as a matter of fact, we have a case in California called In re Lisa R. where that’s exactly what happened, and the California Supreme Court tells us that this statute is not blindly and mechanically applied in every case.

We look at the facts and we see if the state’s interest, ensuring the child a father-child relationship, is being promoted.

When the father is dead, and in Lisa R. the mother too was dead, the answer is that the statute cannot Constitutionally be applied.

In this case, of course, Gerald is very much alive and very much a part of Victoria’s life.

As well, we have another case, by the way, a more recent case, which was cited to you in the reply brief of the guardian ad litem for Victoria.

I should say at the outset that that case has been since decertified for publication and I think is not citable as authority in California.

But I ought to mention the case simply to point out that, in this case, it was the putative father who relied on Section 621.

The man who was biologically responsible, who in that case had established a relationship with the child, after the mother and the husband had divorced, with the husband and mother agreeing that the husband was not the father of the child, the putative father assumed that responsibility informally when he then separated from the mother after a period of about 17 months of living with the child, the putative father then stopped paying for support for the child, the mother brought an action against him.

And the putative father relied upon Section 621 arguing that you can’t impose the responsibility on me, Section 621, just read the words of the statute, it says that it’s the husband that’s responsible and not me.

And the California Court of Appeals said no, because Section 621 doesn’t serve its intended purpose here.

William H. Rehnquist:

How many votes in the Supreme Court of California does it take to decertify an opinion of the Court of Appeals?

Larry M. Hoffman:

I believe it’s five, Your Honor.

Larry M. Hoffman:

But I really can’t be certain.

The effect of the decertification is simply that the case is not cited as precedent.

The court also denied a petition for–

William H. Rehnquist:

Well, it can’t even be published, can it?

Larry M. Hoffman:

–It is, it’s not official… well, it’s published in that I know about it, I’ve read it.

But it’s not citable as authority.

William H. Rehnquist:

Well, it doesn’t appear in the CA report.

Larry M. Hoffman:

It will not appear in the official reports.

That’s correct.

John Paul Stevens:

If I wanted to read it, what do I do?

How do I get it?

Larry M. Hoffman:

I’ll be happy to send you a copy of it.

John Paul Stevens:

Please do.

This business of courts telling other people not to read their opinions is a little bit offensive to me.

Mr. Hoffman, if we were to find that Michael was entitled to a hearing on paternity, would California law permit the guardian ad litem for Victoria to appear at that hearing and be heard?

Larry M. Hoffman:

If Michael were entitled to establish his claim of biological responsibility, yes, I believe that she would.

Byron R. White:

Well, if he would, you would think that for the same reasons she would have the right to a hearing.

Larry M. Hoffman:

If he would have the right to establish the responsibility, I think Mr. Boraks agrees that that’s a reflexive relationship there.

If one has the right–

Byron R. White:

But as long as, as long as the husband is alive and able to support and is supporting, the child may not go after the biological father.

Larry M. Hoffman:

–That’s correct.

And the biological–

Byron R. White:

Even, even for the purpose of establishing the right to inherit?

Larry M. Hoffman:

–That’s correct, Your Honor.

For all purposes.

And by the way, I would point out that one of the major issues in this case is that, once we determine which of these two men is the father of the child, that man becomes the father for all purposes, so that if tomorrow Carole were to die, under California law, the father would have the sole and exclusive right to custody.

And if Carole were to die tomorrow, or the day after tomorrow, but tomorrow the court were to say that Michael… excuse me… is entitled to recognition as Victoria’s father, Victoria would be removed from the only home that she’s known since her birth, and required then by the law, at Michael’s request at least, to reside with him.

So we think that the scope of this question is enormous.

And I think all of these matters have to be taken into account, as they have been by the California legislature in adopting the law, and the California courts in applying and interpreting it.

Anthony M. Kennedy:

Well, I take it what the biological father is asking is just for the right of visitation.

Anthony M. Kennedy:

And if we’re going to create a Constitutional right and define it, I suppose we could limit that way?

Larry M. Hoffman:

Well, he is asking to be recognized as Victoria’s father.

That’s certainly the complaint that he filed.

I would point out that we have a provision under California law, I would just cite it in the briefs, it’s Section 4601 of the California Civil Code, which authorizes the court to award visitation to any person if the court determines that that would be in the best interests of the child.

Now, Michael had the opportunity to bring that action, which would have been brought, of course, independent of this claim of paternity.

That’s not the action that he brought.

In fact, at the hearing on the summary judgment motion, Michael was, at Michael’s counsel, told the judge, who indicated his intention to rule in favor of Gerald, that, well Your Honor, if you’re going to deny me my claim for visitation, for paternity, why don’t you then award me visitation under Section 4601?

And the court responded, because you haven’t asked for visitation under Section 4601, this is a paternity action.

If you think you have the right to that relief, file an action and ask for it.

Anthony M. Kennedy:

What is your position on whether, does the presumption effect the right to that relief?

Larry M. Hoffman:

The presumption, I think, has nothing to do with the right to that relief.

I’m assuming that if Section 4601 allows the court to award visitation to non-parents, then the presumption… of course the effect that it has is that it puts Michael on a much different standard in requesting visitation than he would be if he were recognized as Victoria’s father.

Because in that, under 4601, insofar as it relates to non-parents, the court has the discretion to grant or not grant visitation in the court’s discretion.

Anthony M. Kennedy:

So if you were the judge and Michael brings that action, and he puts on evidence, he says I want to show that I’m the father, I want to testify that I’m the biological father, I… don’t you exclude that evidence based on the presumption?

Larry M. Hoffman:

Correct.

It’s irrelevant that he claims to be the biological father.

Anthony M. Kennedy:

Well, so then he really can’t, then he, then he’s standing there and he has nothing to say at all.

Larry M. Hoffman:

Well, if he’s never established a relationship and the court determines that this is a person who does not have an interest in Victoria’s welfare, then that’s correct.

Then he would not have the opportunity to establish court-ordered visitation with Victoria.

Anthony M. Kennedy:

Well, so then the presumption does apply, does have some application in a purely visitation proceeding.

Larry M. Hoffman:

Yes, it does.

As has been indicated earlier, I think that there’s been a misstatement made in the briefs and in the argument here concerning the way in which Section 621 works.

We’ve been told that 621 acts to terminate an ongoing, an existing relationship, and in fact that’s not the case at all.

It is the mother who in this case terminated the relationship that existed between Victoria and Michael.

The only purpose served by the statute in this case was to preserve a relationship.

And the relationship that it preserved was a relationship of my client with Victoria.

The appellants mentioned, and I heard the argument during Mr. Boraks’ time up here, that there was a significant relationship that existed between Michael and Victoria, and that has Constitutional significance.

But the fact of the matter is that Section 621 says that Michael has no opportunity to develop a relationship with Victoria.

It was solely by reason of Carole’s acquiescence that Michael even had a chance to see Victoria at any time during her minority.

The state of California would not have permitted him, had she been more resistant to his efforts.

Larry M. Hoffman:

Because of that, I think that, while I understand Mr. Boraks wants to bring this case under the cases of this Court that have referred to the significance of an existing relationship between father and child, he can’t.

Byron R. White:

If Carole had never gone back to Gerald, and was living with, just living with Michael, could they have together gone to court and had Michael declared–

Larry M. Hoffman:

They could well indeed, Your Honor, under the statute within the child’s first two years–

Byron R. White:

–This presumption would not have applied?

Larry M. Hoffman:

–The mother joined by an acknowledgment of paternity by the putative father, so again the child is not being left fatherless, may file a motion which, in practice what it does is it requires the husband then, notwithstanding the provisions of Section 621, to submit to a blood test in order to establish the facts of conception.

Byron R. White:

Well now, is that… why does, why does this presumption statute permit that?

By its terms, or by another provision?

Larry M. Hoffman:

Yes, expressly by its terms.

William H. Rehnquist:

So in effect its application depends to a certain extent on the position the mother takes.

Larry M. Hoffman:

That’s right.

The father as well… the husband as well, excuse me, has the opportunity.

And he, without the acknowledgment of responsibility by the putative father, also within the first two years.

I think the theory underlying those two exceptions is… well, of course, in this case we have mother and husband united in a family wanting to raise this child together.

William H. Rehnquist:

And that’s where the presumption applies.

Larry M. Hoffman:

That’s where it applies, and it excludes Michael, it excludes the guardian ad litem for the child.

Byron R. White:

So, so suppose the husband takes this action and he wants to prove that Michael is the biological father.

So he proves it, then what happens?

Support?

Larry M. Hoffman:

The whole panoply of rights and obligations that are available to him as the father are available to him at that point.

Byron R. White:

You mean to Michael?

Larry M. Hoffman:

Yes.

Byron R. White:

So, what, what benefit does the husband get?

Larry M. Hoffman:

If the presumption is rebutted by the mother, who cooperates–

Byron R. White:

No.

He’s entitled to, he’s entitled to have, to prove that the biological father is the father, isn’t he?

Larry M. Hoffman:

–He would be entitled to do that as well, if that were in his interest.

Byron R. White:

Yes, well, what would he get out of it?

Would he be going after support for the child?

Or, he isn’t… is he, is he intending to give up custody?

Larry M. Hoffman:

If a husband… maybe I’m misunderstanding your question.

Larry M. Hoffman:

If the husband were to invoke the exception to Section 621 and say, basically, I don’t want to be responsible for this child, this is not biologically mine, he may do so, and avoid, as long as he acts within the first two years so that no relationship develops between the child and him, because the thought is that after two years statutory–

Byron R. White:

But he could just say, well I want, I want, I like the child, I want the child to live with me, but I just want to collect from the biological father.

Larry M. Hoffman:

–No, that he cannot do.

He can’t have it both ways.

Yes, all right.

Larry M. Hoffman:

I think to the extent that the appellants look for a significant relationship between themselves in order to come under the protection, the rules that are formulated in Stanley and Caban and Lehr and Quilloin, they do themselves a disservice, because there really was no way for Michael to have established a relationship with Victoria by coming to court.

He was subject to Victoria’s, to Carole’s whims in that regard.

And I think that there simply is no relevance to the development of any relationship between the putative father and the child in cases coming under Section–

Anthony M. Kennedy:

Well, of course, under your view of the statute, if Michael had lived with the child for three years, and then the husband and the wife had re-united, the presumption would go into effect, would it not?

Larry M. Hoffman:

–The presumption would remain in effect, if no one had actually taken steps to rebut it during that period of time.

But of course Carole and Michael could have, within those three year period, taken the action that they needed to preserve the relationship–

Anthony M. Kennedy:

But if they didn’t, the presumption goes into effect.

Larry M. Hoffman:

–That’s correct.

There has also been discussion of whether the result in this case was in Victoria’s best interests.

We don’t think that that’s relevant, that in this particular case it makes no difference whether it would or would not have been in Victoria’s best interests that Michael be recognized as her father.

This is a paternity action.

And in paternity cases we don’t determine the question of paternity in… in those cases where we use the rule of biological connection, we don’t consider the question of the child’s best interest in that particular case in deciding whether a man is or is not the father, we look to the facts.

We look to the fact of whether there was intercourse between the child and the mother which resulted in the child’s conception and ultimately her birth.

Antonin Scalia:

I suppose the Court could find that a particular person is the child’s father and yet deny that person custody, and indeed forbid that person from even seeing the child.

Is that possible?

Larry M. Hoffman:

That’s, that certainly is a possible result, I suppose, in these cases.

In other words, simply a hearing to establish the fact of a biological connection with, which has no operative significance?

I think that certainly could–

Antonin Scalia:

It would have, it would have operative significance insofar as liability for support is concerned.

Larry M. Hoffman:

–So he–

Antonin Scalia:

If you have a father who’s violent, something of that sort, I suppose a court could keep the child away from that father, even though the parentage would be acknowledged as his.

Larry M. Hoffman:

–That’s correct.

But the fact that the, it would or would not be in the child’s best interests to visit with that particular man is not relevant to the question of whether he’s entitled to recognition as her father.

Antonin Scalia:

So it isn’t really getting to see the child that is necessarily at issue in this lawsuit at all.

Larry M. Hoffman:

I think that to some degree it is, certainly.

Larry M. Hoffman:

I think Michael would say that that was his prime motivation for bringing it.

Antonin Scalia:

But it doesn’t necessarily go along with acknowledgment of his parentage.

Larry M. Hoffman:

That’s correct.

I mean, if it would be harmful to the child that the man would have contact with her, then he could be recognized as her father and yet kept away from her.

If there are no further questions–

John Paul Stevens:

Yes, I have a question.

Would you comment on the, there’s an allegation in the complaint that the natural father has some kind of a genetic disease that the, his descendants might also have, including the child here, I suppose, and it would be in the best interests of the child’s medical future and all to have that fact established so they can know how to treat her if the problem arose.

Has that any relevance to this problem?

Larry M. Hoffman:

–We think not.

I mean, if in fact Michael were Victoria’s biological father, then that information has been made known to Carole, and is available to her.

And unless we can believe that Carole and Gerald are not going to do what they believe to be in the best interests of the child which might involve genetic counseling for the child, I think that ought not to have any, any part in the decision of whether Michael is or is not entitled to recognition as Victoria’s father.

But those are questions of custody and support and visitation, that’s what follows from the determination of paternity.

If there’s an interesting fact such as that that ought to be made known to Victoria, we hope that it will be, and we have no reason to believe that it won’t be.

But certainly not to go so far as to say the question of paternity, where the law identifies a particular man as the one who bears that legal relationship with the child, ought to be governed by facts such as those.

William H. Rehnquist:

Thank you, Mr. Hoffman.

Mr. Boraks, you have four minutes remaining.

Robert A.W. Boraks:

Thank you, Your Honor.

I would like to say something about what happens under California state law absent the so-called conclusive presumption, if, if in fact, let’s say, Gerald and Carole had not been cohabitating for the month during which Victoria was conceived.

Both Michael as a person who took the child into his home and held the child out as his own, and Gerald as a person married to the child’s mother, would be presumed father under the California statutory scheme, but they would be rebuttable presumptions.

And in that instance a hearing would be held, the purpose of which would be to make a determination based on… which on the facts is founded under weightier considerations of policy and logic.

That’s what would happen in this case absent the conclusive presumption.

Now, I’d like to say something about–

Anthony M. Kennedy:

Does the presumption apply when the husband and wife are cohabiting on the date of birth?

Robert A.W. Boraks:

–I think the presumption is geared to conception, Your Honor.

Because if you look–

Anthony M. Kennedy:

Do California cases say that?

Robert A.W. Boraks:

–Well, if you look at the statutory scheme, there’s a whole set of these rebuttable presumptions that have to do with the status of marriage as of the time of the child’s birth.

And the issue of… and the idea of cohabitation really seems to relate to conception rather than birth.

I would like to say something about visitation.

Number one, Victoria did ask for visitation.

Robert A.W. Boraks:

And number two, visitation may not necessarily go along with Michael’s ability to establish his paternity here.

But no visitation certainly went along with his inability to establish his paternity.

John Paul Stevens:

You say Victoria asked for visitation?

That’s the child?

Robert A.W. Boraks:

Yes, Your Honor.

John Paul Stevens:

How old was the child when she made this–

Robert A.W. Boraks:

Well, the guardian ad litem asked for visitation.

John Paul Stevens:

–And how does the guardian ad litem get the authority… I mean, just, well I’m a little puzzled by that.

Robert A.W. Boraks:

Well, I think the guardian ad litem has an obligation to act in what she perceived to be the child’s best interest under the circumstances.

I think the authority is based on the order of the court establishing the relationship.

And lastly, Your Honors, it is not I alone who stand here to tell you that the relationship was significant or how significant or whatever.

I’m relying on what the California Court of Appeal found and what it based its decision on, which is that we appreciate that Michael H. has shown an interest in Victoria D., almost since her birth, has established an affectionate relationship with her, and has at times even contributed to her support.

So the California Court of Appeal based its decision on the assumption that there was a relationship, but found it, the implications of that to be outweighed by the state interest.

And our position is, the state interests are legitimate and weighty, but they’re insufficient to justify the denial of any right to be heard on the merits of the contention made by Michael or Victoria.

That’s all I have, Your Honor.

William H. Rehnquist:

Thank you, Mr. Boraks.

The case is submitted.