Michael H. vs. Gerald D: Oddenino & Gaule Attorneys Arcadia California

An attractive former model, Carole D., separated from her husband in New York, meets a young man, Michael H., on the beach in Playa del Rey, California. A relationship develops, Carole becomes pregnant by Michael, and a child, Victoria, is born. Michael's child by a previous marriage suffered from a serious genetic disorder, Lawrence‑Moon Beidel syndrome, which causes profound retardation.^[1]

Michael and Carole consult with the Genetic Clinic of the University of Southern California. Michael, Carole and Victoria then go to a clinic at the University of California at Los Angeles for a Human Leukocyte Antigen (HLA) test to confirm Victoria's biological paternity. The HLA test demonstrated a 98.07% probability that Michael is Victoria's biological father.^[2]

Michael assumes paternal responsibilities toward Victoria; he asks Carole to divorce her husband and marry him. Carole and Victoria subsequently move to St. Thomas, Virgin Islands, where Carole and Michael lease a house together with Carole signing the lease as "Carole H." While Carole never divorces her husband, Gerald D., she, Michael and Victoria live together as a family unit.^[3]

After a few months of family life with Michael, Carole returns to Los Angeles and lives with a third man, Scott. Michael returns to Los Angeles to be with Victoria, but is not allowed to visit with his child. Michael files a paternity action against Carole and a guardian ad litem is appointed for Victoria. Approximately four months after Michael files the paternity action, Carole leaves Scott and goes to New York to live with her husband. Four more months pass, and Carole again separates from her husband, returns to Los Angeles and invites Michael to live with her and Victoria in Los Angeles.^[4]

Living again as part of a family unit, Michael supports Carole and Victoria; he even opens a joint bank account with Carole. Michael and Victoria develop a warm, close and loving parent‑child relationship during this period.^[5] After nine months of living as part of a family unit,^[6]Carole again separates from Michael to return to her still legal husband, Gerald. Michael and Carole both sign a stipulation that acknowledges Michael's paternity, obligates him for continuing financial support of Victoria, and makes Victoria Michael's sole heir. This stipulation is not filed with the Los Angeles County Superior Court.^[7]

Michael and the guardian ad litem for Victoria^[8] seek pendente lite visitation between Michael and Victoria. The Los Angeles County Superior Court appoints a psychologist to evaluate the child and all parties. The court‑appointed psychologist's report to the court concludes that Victoria is positively attached to all three parental figures, "principally and equally" (emphasis in original) to Michael and Carole. The psychologist's report further states that Victoria's relationship with Michael is beneficial to her as Michael is the "single adult in Victoria D.'s life most committed to caring for her needs on a long‑term basis."^[9]

The psychologist's report also finds that "it would be unnecessarily hurtful to deprive her [Victoria] of his [Michael] affection and intellectual stimulation."^[10] Victoria is described by the psychologist as having an attitude of "warmth and comfort" toward Michael.^[11] Following submission of the psychologist's report, Michael and Carole enter a stipulation for a pendente lite visitation arrangement, which is made an order of the Los Angeles County Superior Court.^[12]

Just prior to entry of the visitation order, Carole's husband, Gerald, files a motion for summary judgment predicated on the absolute bar to a finding of paternity in favor of Michael imposed by the conclusive presumption of section 621 of the California Evidence Code.^[13] Michael and the guardian ad litem for Victoria oppose the motion, on the ground that section 621 is unconstitutional as repugnant to the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

The Los Angeles County Superior Court subsequently hears and grants the motion for summary judgment citing California Evidence Code section 621, thus abruptly terminating Michael and Victoria's relationship and voiding the visitation order. The California Court of Appeals upholds the trial court. The United States Supreme Court takes the case.

In a fractured opinion, a plurality of the U.S. Supreme Court upheld the result obtained by the Los Angeles County Superior Court, thus ending legal recourse available to Michael for any continuing relationship with his minor child.^[14] An analysis of the various opinions filed in this case produce a disturbing picture of the plurality's method of reaching its result, while the five justices who found claims such as Michael's to enjoy constitutional protection offer hope for those with similar claims.

Justice Brennan and Justice White penned opinions that signal the future direction of the Court and for lower courts when this issue, in similar cases, calls for judicial determination again. Justices Brennan, White, Marshall, and Blackmun all found Michael's claims worthy of constitutional protection. In an unusual opinion, discussed in greater detail below, Justice Stevens also determined Michael's claims warranted constitutional protection, yet, almost inexplicably, found that Michael's claims had been afforded such protection.

Justice Brennan's dissenting opinion stands as an example of the great legacy he leaves on the importance of the Constitution in protecting the individual against the arbitrary power of the state. The glaring flaws of legal reasoning in the plurality opinion provide Justice Brennan with easy targets, and he never misses the mark. Justice Brennan's opinion displays the forceful, unyielding, and articulate style that marked his career on the Court.

In attacking Justice Scalia's reliance on "tradition" as a limitation on "liberty," Justice Brennan's style and substance is exemplified:

Justice Brennan's opinion also provides an excellent primer on the Supreme Court's historical treatment of paternity cases and the appropriate constitutional attention such cases deserve. His opinion persuasively articulates that, of the state's purported interests, family privacy is the only arguable interest the state can look to for support of its position as the other cited interests, for example, promoting marriage or maintaining a relationship between the child and the husband, are not implicated in determining paternity, but rather in determining custody and visitation.^[16]

A distinction is appropriately made between providing Michael a hearing to determine paternity in an age where science allows such a determination to be accurately accomplished and the ultimate custody and visitation arrangement that would be in Victoria's best interests. Not only does the state's purported interest in protecting matrimonial privacy fail to measure up to the fundamental liberty interest of maintaining the parent‑child relationship,^[17] but the state is refusing to afford Michael a hearing on the very issue of paternity, which is a threshold issue before the nature of the relationship may ever be addressed.^[18]

Justice White's dissenting opinion is also an articulate statement of appropriate due process analysis on this issue. It combines with Justice Brennan's opinion to serve as a stark contrast to the legal reasoning of the plurality. For those who will miss Justice Brennan's presence on the Court, and even those who won't, reading his opinion in Michael H. will serve as a stimulating reminder of his reverence for the U.S. Constitution.

Justice Scalia announced the judgment of the Court noting that the California statute (Evidence Code section 621) is more than a century old by reviewing its legislative genealogy.^[19] The opinion proceeds to address Michael's procedural due process claim that section 621 effectively establishes an irrebuttable presumption that unconstitutionally precludes any evidentiary inquiry as to his biological paternity of Victoria.

This constitutional challenge is glibly disposed of in the opinion's conclusion that the irrebuttable presumption of section 621 is actually a substantive rule of law making it "irrelevant (emphasis in original) for paternity purposes whether a child conceived during and born into an existing marriage was begotten by someone other than the husband and had a prior relationship with him."^[20] The opinion proceeds to reject Michael's procedural due process challenge on the basis that the conclusive presumption created by section 621 serves an overriding social policy of excluding inquiries into a minor child's paternity that would be destructive of family integrity and privacy.^[21]

The plurality opinion is distressingly conclusory on this important point of procedural due process. The Court's opinion disposes of the constitutional challenge to the irrebuttable presumption without first addressing the nature of the interest on which the presumption precludes any hearing. This is done by simply claiming that the interest is "irrelevant."^[22] In this manner the Court evades any serious scrutiny of the interest Michael claims.

The Court's reasoning on these points is specious at best. There are two primary concerns. First, as Justice Brennan observed in his dissenting opinion:

The plurality's reasoning is reminiscent of the story of the man who asked the farmer how many legs a cow would have if we call the tail a leg. The farmer responded, four, because no matter what you call the tail, the cow still has only four legs. The plurality opinion in Michael H. suggests that the Court would be comfortable with answering that the cow has five legs, just so long as we call the tail a leg.

Second, denial of the procedural due process challenge is troubling because the state's purported interest - family integrity and privacy - self‑destructs with the language of the very statute that creates the conclusive presumption. The statute allows a husband to challenge the question of paternity.^[24] Paternity can be challenged if it is established that the husband is sterile, impotent, or not cohabiting with his wife.^[25] Paternity may be challenged by the wife if she is joined by the child's biological father.^[26] Integrity, where is thy integrity?

Further, the facts of this case unequivocally demonstrate that all parties know that Michael, not Gerald, is the biological father of Victoria. The interest of family integrity and privacy embraced by the plurality to foreclose so much as an opportunity to be heard by Michael is not so different from one that might be asserted by a biological parent and new spouse in opposing visitation rights of the other biological parent. It would be ludicrous to suggest that family integrity and privacy could foreclose an ex‑spouse's visitation rights; yet, that reasoning is allowed to prevent Michael from having a hearing because of a simple difference in marital status.

The plurality opinion next disposes of Michael's claim to a constitutionally protected liberty interest in his relationship with Victoria. Michael's claim is a straightforward one. It is undisputed that Michael and Victoria enjoyed a de facto parent‑child relationship.^[27] An unwed father's constitutional rights relative to his children have already been recognized by the Court.^[28]

In Lehr v. Robertson, the Court distinguished rights a father has from a mere biological relationship (essentially none) with those present in an ongoing relationship, holding an existing relationship to be a constitutionally protected liberty interest.^[29] Michael H. presented the Court with the novel question of how to deal with a biological father who had an existing relationship with a minor child while the mother is married to another man. The decision in Lehr v. Robertson suggested that Michael's relationship with Victoria would be constitutionally protected because of its preexisting status.

If mere biological relationship is insufficient to summon forth constitutional protection (Lehr) and long‑term relationships undoubtedly warrant such protection (Stanley and Caban), legitimate avenues of inquiry might be how long is long enough, or should the determination be a qualitative one versus a quantitative one. However, the plurality chose to brutally extinguish the notion that a relationship such as the one Michael and Victoria enjoyed might have any claim to constitutional protection.

The refusal to acknowledge any constitutional protection for Michael's relationship with Victoria is based on the plurality's reasoning that there is no tradition in society for respecting such a relationship.^[30] The plurality repeatedly refers to Michael's relationship as an adulterous one.^[31] At this juncture we must question what are the actual values that the plurality attempts to preserve with this result. This author suggests that the plurality opinion reflects a traditional prejudice against women.

Precluding any inquiry as to the parentage of a child born to a married couple serves to foster the notion that women and children are chattel of the husband. Thus, just as when someone plants a seed on another man's property, the fruit of that seed belongs to the property owner and not the one who planted the seed. So if a man plants a seed in another man's wife, the offspring of that seed belongs to the wife's husband and not the one who planted the seed, provided the husband chooses to keep the offspring. If the child was born with a defect that made the child unattractive to the husband, he could, under section 621, seek blood tests to avoid any paternal or financial responsibility for an unwanted child.

It is interesting to note that the plurality, while often referring to Michael's adulterous nature, makes no specific reference to Carole's adulterous behavior as contributing to the production of the child. It is as though Carole is but a bit‑player in this drama with the main protagonists being the men, Michael and Gerald. For example:

The plurality appears to be equating a fundamental liberty interest in an established parent‑child relationship with a policy that prevents a husband from being publicly cuckolded. Conspicuously absent is any legal grounding for Scalia's conclusion that granting Michael the opportunity to establish paternity and seek visitation vitiates a particular right of Gerald.

No consideration is given regarding research on how the minor child might actually be affected if Michael were to prevail and secure visitation rights with his daughter. The Court gave considerable attention to social science research in its landmark decision of Brown v. Board of Education,^[33] yet ignored any such consideration in this case.^[34]

The plurality opinion's true character is revealed in footnote six.^[35] Scalia adopts a mode of historical analysis for determining when a liberty interest exists sufficient to warrant protection by the Due Process Clause of the Fourteenth Amendment. Footnote six proposes that societal tradition is the determinative factor in deciding the appropriate constitutional protection afforded a claimed liberty interest. The opinion is effectively summarized by footnote seven comment, "[W]e rest our decision not upon our independent 'balancing' of such interests, but upon the absence of any constitutionally protected right to legal parentage on the part of an adulterous natural father in Michael's situation."^[36]

This type of analysis is particularly dangerous in an ever‑evolving society and appears to be an unusually novel approach inconsistent with the Court's decisions in Brown v. Board of Education, Griswold v. Connecticut, Eisenstadt v. Baird,^[37] and others. It is significant that only Chief Justice Rehnquist joined in full with the opinion of the Court. Both Justice O'Connor and Justice Kennedy felt compelled to distance themselves from the analysis found in footnote six by specifically opining that their concurrence with the Court's opinion did not extend to footnote six.^[38]

The plurality opinion is simply bad law, based on a bad analysis, based on a bad desire to reach a particular result. This opinion is a classic example of the hazards of result‑oriented jurisprudence. Justice O'Connor and Justice Kennedy do not explain how they can concur in the result while specifically rejecting the analysis found in footnote six. Without the analysis of footnote six, it is unclear how the result could be reached. Yet O'Connor and Kennedy are content to simply accept the result while rejecting the reasoning.

Fortunately, the plurality opinion will be of little or no precedential value. Five members of the Court actually found that a person in Michael's position cannot be precluded from having a constitutionally protected interest in a relationship with a child whose mother was married to and cohabiting with another man at the time of the child's conception and birth.^[39] Five members also found that the irrebuttable presumption was unconstitutional insofar as it denied a hearing on the issue of protecting the claimed liberty interest.^[40]

The question arises as to how the plurality opinion then became the opinion of the Court. The answer is ugly.

Justice Stevens' concurring opinion will nonplus even the most ardent supporter of result‑oriented jurisprudence. Stevens rejects the reasoning of the majority while embracing the reasoning of the dissenters. He goes so far as to state, "Indeed, I am willing to assume for the purpose of deciding this case that Michael's relationship with Victoria is strong enough to give him a constitutional right to try to convince a trial judge that Victoria's best interest would be served by granting him visitation rights."^[41]

How, then, did his vote get cast with the majority? Incredibly, Stevens, and Stevens alone, found that Michael was, in fact, afforded the opportunity for a hearing. Stevens found that California Civil Code section 4601,^[42] which provides for discretionary visitation to non‑parents with an interest in the welfare of the child, gave Michael an opportunity to secure visitation rights as a non-parent.^[43]

This opinion employs a particularly ugly analysis to reach this result. Stevens ignores the issue of paternity, glibly equating it with non‑parent visitation, and rests his opinion on a supposed opportunity for Michael to seek such visitation rights under section 4601. Stevens erroneously finds support for his position by completely misreading California appellate court decisions.^[44] The ugliness of this opinion is also evident in Stevens' reference to a supposed record reflecting a loving and harmonious family home now provided Victoria by Gerald and Carole.^[45]

In fact, there is no evidence in the record of a supposed harmonious home. The only reference to the home of Gerald and Carole is found in the California appellate court decision where the court noted that they were still married and had a two‑month‑old baby boy at that time, subsequent to the time of the granting of the motion for summary judgment, which is the basis for the Supreme Court's review. Remarkably, this information worked its way into Stevens' opinion from the California appellate opinion, which included the information in its opinion as a result of the information being announced by the husband's attorney at oral argument.^[46]

Thus, the evidence is strong that Stevens found the potential result of giving Michael visitation rights too uncomfortable. This forced positing a tortured analysis of Michael's opportunity for hearing in an attempt to justify the result, which Stevens implicitly acknowledges is contrary to reasonable constitutional principles.

Perhaps the ugliest aspect of Stevens' opinion is found in his statement: "In the circumstances of this case, I find nothing fundamentally unfair about the exercise of a judge's discretion that, in the end, allows the mother to decide whether her child's best interest would be served by allowing the natural father visitation privileges."^[47] It is, therefore, obvious that Stevens allowed his personal views on child‑rearing to supplant constitutional principles related to a fundamental liberty interest. This is ugly law.

Five justices held that an individual in Michael's position is constitutionally entitled to a hearing on the issue of paternity. Thus, Justice Brennan's and Justice White's opinions provide a more reliable road‑map for determining future directions than does the plurality opinion. While Michael H. lost his personal battle, his case portends victory for those who may follow a similar path in the future. Indeed, in California, evidence code section 621 was amended in response to the Michael H. decision. Effective January 1, 1991, California's "conclusive presumption" can be challenged by a presumed father, and the issue of paternity will be determined by blood tests.^[48] As in California, this issue is likely to be resolved by other states and other courts along the lines of Justice Brennan's dissent.

Michael L. Oddenino, a graduate of the University of Virginia School of Law, has a private practice in the Los Angeles, California area. He served on the Executive Committee of the ABA's Family Law Section's Custody Committee and serves as general counsel to the National Council for Children's Rights in Washington, D.C. Mr. Oddenino is a popular speaker on Family Law topics and has written an amicus brief to the California appellate court and the U.S. Supreme Court in the Michael H. v. Gerald D. case.

1. Brief for Appellant Michael H., in the Supreme Court of the United States, No.87‑746, October Term, 1987, Michael H. v. Gerald D., 2‑3 [hereinafter Brief for Michael H.].

6. The actual period of time that Michael, Carole and Victoria lived together as a family unit appears to be approximately seven or eight months, although there is a discrepancy between Michael's factual history and Carole's. Cf. Brief for Appellant Michael H., supra, and Brief on the Merits for Appellee Gerald D., In the Supreme court of the United States, No. 87‑746, October Term, 1987, Michael H. v. Gerald D.

8. Throughout this litigation, the court appointed guardian ad litem for Victoria has consistently taken the position that a de facto father‑child relationship, which warranted legal protection, existed between Michael and Victoria, and that promoting that relationship was in the best interests of the minor child. See Appellant Victoria D.'s Brief on the Merits, In the Supreme Court of the United States, No. 87‑746, October Term, 1987, Michael H. v. Gerald D.

9. Record in Appendix, at 51 Michael H. v. Gerald D., 491 U.S. 110, 105 L. Ed. 21 (1989) [hereinafter Record in Appendix].

12. Jurisdictional Statement, B5, Michael H. v. Gerald D., 491 U.S. 110 [hereinafter Jurisdictional Statement].

(a) Except as provided in subdivision (b), the issue of a wife cohabiting with her

husband, who is not impotent or sterile, is conclusively presumed to be the child of the marriage.

(b) Notwithstanding the provisions of subdivision (a), if the court finds that the

conclusions of all the experts, as disclosed by the evidence pursuant to Chapter 2 (commencing with Section 890) of Division 7 are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly.

(c) The notice of motion for blood tests under subdivision (b) may be raised by the husband not later than two years from the date of the child's birth.

(d) The notice of motion for blood tests under subdivision (b) may be raised by the mother of the child not later than two years from the child's date of birth if the child's biological father has filed an affidavit with the court acknowledging paternity of the child.

(e) The provisions of subdivision (b) shall not apply to any case coming within the provisions of Section 7005 of the Civil Code [dealing with artificial insemination of the wife], with the consent of the husband, conceived by any means of surgical procedure.

14. Michael H.v. Gerald D., 491 U.S. 110(1989). Justice Scalia wrote the judgment of the Court in an opinion joined by Chief Justice Rehnquist, and with exception of footnote six, by Justice O'Connor and Justice Kennedy. Justice O'Connor filed an opinion concurring in part, in which Justice Kennedy joined. Justice Stevens filed an opinion concurring in the judgment. Justice Brennan filed a dissenting opinion, in which Justice Marshall and Justice Blackmun joined. Justice White filed a dissenting opinion, in which Justice Brennan joined.

28. Stanley v. Illinois, 405U.S. 645 (1972); Quilloin v. Walcott, 434 U.S. 256 (!978); Caban v. Mohammed, 441 U.S. 380 (1979).

34. See, e.g., Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 Va. L. Rev. 879,909‑11 (1984).

38. Michael H., 109 S.Ct. at 2346 (O'Connor, J., concurring in part, joined by Kennedy, J).

39. Michael H., 109 S.Ct. at 2347 (Stevens, J., concurring), at 2349 (Brennan, J., dissenting, joined by Marshall and Blackmun, JJ.), at 2360 (White, J., dissenting, joined by Brennan, J.).

[R]easonable visitation rights [shall be awarded] to a parent unless it is shown that the visitation would be detrimental to the best interests of the child. In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child.

44. Id. Justice Stevens found that language in Vincent B. v. Joan R., 126 Cal. App. 3d 619, 627‑28, 179 Cal. Rptr. 9,13(1982), which denied a natural father in a situation similar to Michael's visitation "in the circumstances of this case" to indicate that it was possible for a California court to award Michael visitation notwithstanding the conclusive presumption of section 621 if the court found the circumstances warranted. This reading is contrary to the facts of the case because, as Justice Brennan points out in his dissent, "The court in Vincent B. began by stressing the fact that the child's mother objected to visits from Vincent. This circumstance is present in every single case falling under the conclusive presumption of section 621." Michael H., supra, 2356

621. (a) Except as provided in subdivision (b), the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.

(b) Notwithstanding of subdivision (a), if the court finds that the conclusions of all experts, as disclosed by the evidence based upon blood tests performed pursuant to Chapter 2 (commencing with Section 890) of Division 7, are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly.

(c) The notice of motion for blood tests under subdivision (b) may be raised by the husband, a presumed father, or the child not later than two years from the child's date of birth.

(e) Subdivision (b) shall not apply to any case coming within the provisions of Section 7005 of the Civil Code, or to any case in which the wife, with the consent of the husband, conceived by means of a surgical procedure.

(f) The notice of motion for the blood tests pursuant to subdivision (b) shall be supported by a declaration under oath submitted by the moving party stating the factual basis for placing the issue of paternity before the court. This requirement shall not apply to any case pending before the court on September 30, 1980.

(g) Subdivision (b) shall not apply to any case which has reached final judgment of paternity on September 30, 1980.

(h) A court may order pendente lite relief consisting of an award of joint custody pursuant to Section 4600 of the Civil Code or granting of reasonable visitation rights pursuant to Section 4601 of the Civil Code, if it finds based on the tests authorized in this section, that a parent‑child relationship exists pursuant to this section and that the award of joint custody or by the granting of visitation rightswould not be detrimental to the child involved.

(i) As used in this section "presumed father" has the meaning given in Section 7004 of the Civil Code.

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The Good, the Bad, and the Ugly: A Critical Analysis of the U.S. Supreme Court Decision in Michael H. v. Gerald D.