U.S. Supreme Court Upholds California Law on Paternity

WASHINGTON —  The Supreme Court, rejecting the appeal of an unwed father, Thursday upheld a California law that presumes that the husband of a married woman is the father of her children.

On a 5-4 vote, the court said a biological father does not have a constitutional right to visit his child and act as a parent.

The Constitution does not give an “adulterer” the right to “disrupt” a marriage by asserting his paternity of one of a couple’s children, said Justice Antonin Scalia, speaking for four of the five justices in the majority.

Justice John Paul Stevens, casting the deciding fifth vote, said in a separate opinion that the California law was reasonable because it permits a judge to consider all the evidence and decide on what is in “the best interest of the child”.

The ruling was the third setback in this court term for advocates of fathers’ rights. In October, the justices refused to hear the appeal of an Indiana man who said he had a right as a father to block his estranged wife’s abortion. In December, the justices dismissed on jurisdictional grounds the appeal of an unwed father from La Habra who contended that his rights were violated when his child was put up for adoption without his permission.

Thursday’s ruling ends a seven-year legal fight for Michael Hirschensohn, a businessman who works in both Los Angeles and the Virgin Islands, according to his attorney.

Facts Called ‘Extraordinary’

“The facts of this case are, we must hope, extraordinary,” wrote Scalia in describing the back-and-forth relationship between Hirschensohn, Carole Dearing and her husband Gerald. The three lived in Playa del Rey in 1978, when Hirschensohn began an affair with the married woman. Three years later, she gave birth to a girl, Victoria. A blood test showed with 98% certainty that Hirschensohn was the biological father.

After several years of indecision, Carole Dearing, who had returned to her husband, joined him in seeking to rebuff Hirschensohn’s legal efforts to assert his paternity and gain the rights to see the child. In 1985, a judge in Los Angeles ruled in favor of the married couple.

California law presumes that a “husband who is not impotent or sterile is conclusively presumed” to be the father of the child. The law also permits a judge to grant visitation rights to another person if it would be in the “best interest of the child,” but the judge declined to grant Hirschensohn this privilege.

After the state appellate courts in California ruled against Hirschensohn, his lawyers appealed to the Supreme Court.

The case of Michael H. vs. Gerald D., 87-746, as it is officially labeled for privacy reasons, was argued in October and the court has struggled for eight months to come to a decision.

Four justices said Thursday that a man has a constitutional right to prove in court that he is the father of the child and to gain visitation privileges. Four other justices, led by Scalia, said there is no such right for unwed men. The court should construe the Constitution to protect only “fundamental rights” that have been long recognized. “This is not the stuff of which fundamental rights . . . are made,” Scalia said. He was joined by Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Sandra Day O’Connor.

Takes Middle Position

The ninth justice, Stevens, took a middle position and said the Constitution requires that a man have a “fair opportunity” to assert his rights in court. In this case, he said, the judge considered Hirschensohn’s appeal and concluded that it would not be in the best interest of Victoria to grant visitation rights.

Joel Aaronson, a Sherman Oaks attorney who represented the unwed father, criticized Scalia for what he said was a close-minded attitude toward a father’s plight. “I hope this situation never happens to him. This is the age in which we live,” Aaronson said.

The dissenting justices agreed. “The atmosphere surrounding today’s decision is one of make believe,” wrote Justice William J. Brennan Jr.