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The California Supreme Court's Recent Holding:
A "Presumed" Father Has Greater Rights Than a Biological One

Tuesday, Mar. 09, 2004

On March 1, in its fractured 4-3 decision in the case of In re Jesusa V., the California Supreme Court awarded greater rights to a child's "presumed" father than to her biological father. (A "presumed" father is one whom the court recognizes as having legal rights and obligations with respect to a child, although he may or may not be the genetic father.)

The majority's ruling sparked a 72-page dissent -- and the differences of opinion were striking. The decision raises important questions about the importance of biology to parenthood, ones that go well beyond this particular case.

Jesusa V.'s Complicated Family Situation

On April 1, 2001, the child known in court papers as Jesusa V. was taken into protective custody. At the time, she was almost two years old. The City of Los Angeles was concerned that she had been witness to "violent confrontations" between her biological parents, and that her mother had not been able to protect her.

The incident that precipitated the City's action was a crime by Jesusa's biological father, Heriberto C. Heriberto had violently raped and beaten Jesusa's mother -- who was, at the time, seven months pregnant with the second of his children -- in the motor home that the couple and Jesusa shared. Heriberto was subsequently arrested and jailed. He pled no contest to the charges.

On April 4, 2001, a hearing on Jesusa's custody was held. At the hearing, Jesusa's mother appeared, and so did her husband of eighteen years, Paul B. -- with whom Jesusa's mother had five other children.

The couple had been separated for the past three years. During that time, Jesusa's mother had dated, and eventually lived with, Heriberto. She had also, at times, visited her five children at Paul's house in San Diego. When she had, she had often brought Jesusa with her. Jesusa had lived with Paul from time to time, bonded with him, and also developed a bond with her five half-siblings living there.

Paul asked the Court to declare that he was Jesusa's "presumed" father and place her with him. Later, Heriberto, while incarcerated for the rape, filed a similar request to be declared Jesusa's "presumed" father.

Both sides stipulated in court that Heriberto was Jesusa's biological father. However, in the end, the court declared Paul to be Jesusa's "presumed" father and, with her mother's consent, maintained her placement with him.

Who Qualifies as a Presumed Father Under California Law?

California's parentage rules involve a complicated set of sometimes conflicting presumptions.

First, a man is "conclusively presumed" to be the father of a child if he is both married to and cohabiting with the mother, as long as he is not sterile or impotent.

This was not the case with Heriberto -- he and Jesusa's mother were cohabiting, but not married. Nor was it the case with Paul -- he and Jesusa's mother were married, but not cohabiting

In law, a "conclusive" presumption usually means that it cannot be rebutted. But this presumption actually can be rebutted, within two years of the child's birth, with blood tests showing that the husband is not the biological father of the child.

Second, a man might also be presumed to be the father of a child on other bases. He could be married to, but not cohabiting with the mother at the time of the child's birth -- Paul's situation. He could attempt to solemnize a marriage to the mother, but have it later declared invalid. Or, he could "receive[] the child into his home and openly hold[] out the child as his natural child" - a basis on which both Heriberto and Paul could rely.

As these examples show, these presumptions are written in such a way that multiple men may qualify as the "presumed father" of the same child. Indeed, that is just what happened in the case of Jesusa V. -- both men, in theory, could have qualified as presumed fathers. It turned out to be a case of conflicting presumptions.

These presumptions of fatherhood are rebuttable. They may be refuted "in an appropriate action by clear and convincing evidence" -- which, again, could include blood tests showing true biological paternity.

Resolving A Case of Conflicting Presumptions

What happens in a case of conflicting presumptions? The California Code says that courts should give effect to the presumption that "is founded on the weightier considerations of policy and logic."

Which claim of presumed fatherhood--Paul's or Heriberto's--better satisfied that standard?

Plainly, Heriberto -- in jail for raping Jesusa's mother -- would not be an ideal father. But Heriberto pointed out that he had acted as Jesusa's father from conception through infancy, and he argued that because of this, and because of his status as biological father, he should prevail over Paul, nonetheless.

The juvenile court held in favor of Paul, and the California Supreme Court agreed -- but it did so over two heated dissents. Heriberto made two basic claims about his rights to fatherhood -- and I will consider each in turn

The Decision of the California Supreme Court: Heriberto's Statutory Claim

First, Heriberto argued that the statute itself dictates that biological fatherhood trumps all other claims of presumed fatherhood. In his view, Paul's admission that he was not Jesusa's biological father rebutted any presumption of fatherhood he would otherwise have enjoyed. Thus, Jesusa had only one presumptive (and biological) father -- Heriberto.

A majority of the California Supreme Court disagreed, however. Its ruling was heavily based on a prior precedent, In re Nicholas H.. In that case, the court continued to treat a man as a child's presumed father despite his admission that he was not the biological father.

Based on Nicholas H., the majority in Jesusa V. concluded that it could do the same thing with respect to Paul: He could be held to be a presumed father, without being a biological father. And as a presumed father, the majority held, the legal standard favored him over Paul.

The dissent, however, argued that Nicholas H. was a very different -- and much easier -- case. There, it was either the presumed, non-biological father or no father at all. Thus, it made a great deal of sense to allow the non-biological father to be a presumed father despite the lack of genetic ties.

The Decision of the California Supreme Court: Heriberto's Constitutional Claim

Second, Heriberto argued that courts must treat biological paternity as determinative of fatherhood. So if the statute does otherwise, he contended, it should be struck down on the ground that it violates the Constitution.

There is a long line of cases recognizing that, under the U.S. Constitution, there is a constitutionally protected liberty interest in the parent-child relationship. Yet unwed fathers have always occupied a unique, less protected status than other parents.

At common law, unwed fathers had no virtually no rights. Until the 1970s, many states, for example, had statutes stating that an out-of-wedlock child could only inherit through intestate succession from her mother because there was no legally recognized relationship between such a child and his or her father.

Meanwhile, states also routinely deprived unwed fathers of the right to veto a proposed adoption of their children. In addition, they denied unwed fathers' claims to custody and visitation rights.

But the U.S. Supreme Court came out with a series of cases in the 1970s and 1980s declaring that the Due Process Clause did protect the liberty interest unwed fathers have in pursuing relationships with their children -- at least in some circumstances.

Courts could not, the Supreme Court held, automatically deny unwed fathers the rights they gave unwed mothers. But nor did they have to grant them the same rights.

Through a line of cases, the Court developed a "paternity-plus" approach. Under this approach, courts had to recognize the rights of unwed fathers -- but only when, in addition to proving genetic paternity, the fathers had also done something affirmative to create or maintain a parent-child relationship.

Based on these cases and others, Heriberto argued that the court could not compromise his parental relationship, except upon proof that he was an unfit parent, which was never provided

But the majority of the California Supreme Court held that declaring a presumed father is different from terminating parental rights -- and thus, that the precedents Heriberto cited do not apply.

Moreover, the majority explained, Heriberto never made any attempt to formalize his paternity, through an adjudication or declaration, despite knowing that her mother was married to someone else. It thus rejected his constitutional claim as well.

But Justice Chin, in dissent, argued that the constitutional (and statutory) holding in this case puts numerous father-child relationships at risk because of "a court's subjective and discretionary determination that some other man who qualifies as a presumed father would be a better father." He criticized the court for refusing to give greater--maybe even conclusive--weight to biological ties between father and child.

The Current, Ambiguous California Statue Ought to Be Amended

This case makes very clear that the relevant California statute ought to be amended.

The statute -- with its complicated series of presumptions and rebuttals -- was drafted in an era when paternity was much more of a guessing game. Now, when paternity testing is virtually foolproof, a new approach is needed.

Presumptions will still be necessary in the rare case when paternity tests have not occurred, or paternity has not been stipulated. But in other cases -- which will likely be the overwhelming majority, the legislature must address head on the same basis question the Jesusa V. case raised: Is a proven biological father who has not been declared unfit always the presumed legal father of his child? Or can another man assume that status? Can, as the majority seems to imply here, the best interests of the child trump a biological father's claim to parenthood?

The answer to these questions may divide readers as dramatically as the Jesusa V. case divided the California Supreme Court. Biological fatherhood is obviously important. But so are family unity, and ensuring proper financial and emotional support for the children. And these considerations arguably ought to allow a woman's husband to be legally deemed, under some circumstances, to be the father of her child -- even when he biologically is not.

Whatever answer the California legislature gives, it ought to provide one soon. It's not fair to families, and especially to children, to leave this issue up in the air.

Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University. Her other columns on family law issues may be found in the archive of her columns on this site.

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