Sex, Laws and Fatherhood--and a Court to Sort It Out

David Reese, an Orange contractor locked in a bitter divorce battle, was floored. A judge had ordered him to pay child support for two children who were not his.

The youngsters, a boy and girl, were born to Reese’s wife, Rebecca, during their 17-year marriage. Although he raised them as his own, Reese eventually learned that they were sired by his wife’s lover.

Blood tests ordered by the divorce judge proved that Reese was not the biological father. But it didn’t matter, because Reese was the only dad the children knew, and under state law, he was their legal father.

In a ruling that could reshape California law, an appeals court in Riverside has held that Reese was wrongly ordered to pay child support and that his divorce judge should have been guided by the lab results.

The case turned on those blood tests, the appeals court justices said, because the law clearly states that whenever a court takes an initiative and orders blood tests, it is obliged to follow the results.

The court published its decision, which means it can be cited in similar cases across the state. But the panel of judges in their April opinion also took the unusual step of calling upon the state Legislature to revise current laws, so judges can exercise discretion when determining paternity, regardless of blood test results.

“As it stands, the statutes are a trap for the trial court that routinely orders blood tests without realizing the significance of [that action],” the court stated.

Reese and his attorney, John L. Dodd of Tustin, applauded the court’s decision.

But some experts say the opinion threatens to upset a 125-year-old legal precedent--and social policy--in California, which holds that the husband of a married woman is legally presumed to be the father of her children.

Glen H. Schwartz, an Encino attorney who has successfully argued many paternity cases, has asked the California Supreme Court to strike down the ruling.

“If this case is allowed to become legal precedent, it will destroy the fabric of California’s paternity law,” Schwartz wrote the high court.

Scott A. Altman, a law professor at USC, said the case is one of a growing number of legal disputes in which courts are being asked to redefine fatherhood.

Until now, state courts have consistently held that the father is the man who provides love and care, not necessarily the one who contributes the sperm.

Because the Reese opinion deviates from previous decisions, it “is clearly a case that would [be] appealing to the California Supreme Court,” Altman said.

In an interview last week, Reese, 43, said he was seeking justice, not trying to make new law, when he embarked on what became a four-year legal fight to escape fatherhood.

“No court should be able to force anyone to be a parent,” Reese said. “If God didn’t make me the parent, why should the court . . . make me the legal father? Does the court have more power than God? I don’t think so.”

His former wife, who has since remarried, said she did not want to comment, except to say, “I do not have any faith in the justice system.”

“My kids are loved and they are very happy,” said Rebecca, who spoke on the condition that her new last name be withheld. “This entire [litigation] has taught me that you can’t legislate love.”

Reese and his former wife, a convalescent home activity director, once considered themselves exemplary parents. They sent the children to private schools, enrolled them in dance lessons and took them on family vacations.

The couple, sweethearts at Orange High School, married in 1975. He was 21. She was 19.

Nine years later, Rebecca gave birth to a son. In 1988, she had a girl. The birth certificates list Reese as the father.

The couple separated in 1992, and Rebecca later filed for divorce in Riverside Superior Court. While the case was pending, Reese was ordered to pay $982 a month for child support.

Reese said “the bomb dropped” a year later when Rebecca told him the children weren’t biologically his.

“My reaction was plain disbelief,” he said. “There’s no greater jolt than to hear that you’ve been duped into raising children thinking they were yours.”

Reese raised the paternity issue with Riverside County Superior Court Judge Janice McIntyre, who was handling pretrial motions, and the judge ordered blood tests to resolve paternity.

The tests showed that the children could not have been fathered by Reese.

Reese then sought to terminate his parental rights and responsibilities. He still loves both children, he said, but “every time I’d see their faces, I was going to realize they were not my children.”

Reese asked Judge Richard G. Van Frank, the trial judge, to free him from paying child support.

During the trial, Rebecca identified the biological father as a La Habra grocery store clerk. She said both conceptions were the result of an agreement between her husband, the clerk and herself, because Reese could not father children.

In his testimony, Reese acknowledged that his sperm count was low, but said he had always believed it was enough to sire a child. He denied entering into any agreement allowing the clerk to impregnate his wife.

The clerk testified that he had never discussed the matter with Reese, and thought he was doing the couple a favor by impregnating Rebecca.

Van Frank said he didn’t believe Rebecca’s testimony about an agreement among the three adults, and noted that the lab results disproved Reese’s paternity.

But Van Frank found that Reese was the legal father and could not avoid his obligations to pay child support. The judge said he was bound by state law, which presumes that a husband is the father of children born during a marriage, unless he is conclusively shown to be sterile or impotent.

After Reese was held liable for child support, he appealed and sued his ex-wife and the grocery clerk. Reese demanded more than $200,000 he estimated he had spent raising the children, freedom from child support payments, and $2 million for emotional distress.

In June 1996, the appeals court rejected Reese’s case. The children’s right to a stable familial relationship was the overriding concern, the opinion stated.

Reese’s lawyer asked the court to reconsider. Such requests usually are denied, but Dodd said he felt certain about his interpretation of the law.

On April 21, the appellate court changed course, agreeing with Dodd that the law stated that a father could successfully shed paternity if court-ordered blood testing showed the children were not his.

“Unless and until the Legislature addresses these issues and amends the statutes, a trial court should be very circumspect in exercising its discretion to order blood tests,” the court ruled.

Schwartz, the Encino attorney, said the ruling established a “flawed and dangerous precedent.”

The decision effectively took away “the only father they have ever known and the only reasonable source of their support,” Schwartz said in a plea to the state Supreme Court.

Shortly after the appellate court’s latest decision, Reese and his ex-wife reached a settlement: Rebecca agreed not to seek child support and he agreed to drop the lawsuit.

Reese, who has since remarried and divorced again, said he will honor Rebecca’s wishes not to contact the two children. Perhaps, he said, the children will contact him later.

“Maybe I could be something like a stepfather or big brother to them,” he said.