Court Denies Parental Rights to Unwed Father

SAN FRANCISCO —  In a defeat for unwed fathers, the California Supreme Court ruled Monday that a man who fathers a child with a woman who is married to someone else may be denied all legal parental rights.

A man who “fathers a child with a woman married to another man takes the risk that the child will be raised within that marriage and that he will be excluded from participation in the child’s life,” Justice Joyce L. Kennard wrote. Nothing in the Constitution overrules state law favoring the stability of marriages over a biological father’s interests, the justices said.

With roughly a third of California children born to couples who are not married to each other, the case was considered a significant test of the rights of biological fathers. Lower courts in California had ruled in favor of the biological father even though a state law presumes a child born to a married couple is generally the husband’s child, regardless of biology.

Courts in 20 other states have granted biological fathers in similar situations the right to assert their paternity, and some states have changed their laws to protect the interests of unmarried fathers.

Monday’s ruling stemmed from a lawsuit filed by Riverside County roofer Jerome “Jerry” Krchmar, 41, who lived with a woman referred to in the court’s opinion as Dawn D. in 1995 while she was separated from her husband of nearly six years. Dawn, a teacher, became pregnant after living with Krchmar for a month. The two had planned to marry when she divorced, and he had begun building an addition to their home, he said in an interview.

Instead, however, after living with Krchmar for almost four months, Dawn returned to her husband. Krchmar tried to negotiate child support and visitation rights, took a parenting class and filed a lawsuit a few months before the baby was born to assert a parental relationship. But Dawn and her husband refused to allow him to see the baby, Sam.

When Krchmar and the couple met for a blood test, Dawn’s husband punched him, Krchmar’s attorney said.

Krchmar, his voice breaking, said Monday that he was “devastated” by the ruling and planned to appeal to the U.S. Supreme Court.

“I will never give up my son,” said Krchmar, who has a small organic farm. “My son is being lied to every day of his life about his genealogy and about who to call Daddy.”

A Message to Nation

Marjorie Fuller, Krchmar’s lawyer, called his fight one of “an amazingly large number” of similar cases.

“It is telling a lot of young men who are stepping up to the plate, as they should, and wanting to take responsibility . . . ‘Forget it. Go away,’ ” she said.

But Diane Catran Roth, a lawyer for the married couple, praised the ruling for giving Dawn and her husband, Frank, a chance to be “normal and raise their children like normal people.” The couple eventually had a second child, a daughter. Frank and Sam, now 2, “have a beautiful father-son relationship,” Roth said.

“There are a lot of similar cases going on, not only in our state but throughout the country,” she said. “We believe it is important that married couples be protected from lawsuits that threaten their rights to raise their children within their marriage.”

In its 5-2 decision, the high court rejected Krchmar’s claim that he had a constitutional right to assert his paternity. The court majority said that because the mother was married at the time the child was conceived and was living with her husband when it was born, they were bound by the state law that presumes a husband is the father of his wife’s children.

Krchmar “has never had any personal relationship with Dawn’s child, only an alleged biological link with an attempt to negotiate an agreement for child support and visitation,” wrote Justice Kathryn Mickle Werdegar for the court.

Krchmar said in a telephone interview that he and Dawn had been excited about the pregnancy and even discussed names for the baby. But after he went out of town for a week on a job, she decided she no longer wanted to live with him and moved back with her husband, he said. Dawn has denied ever promising to marry Krchmar.

When Sam was born, Krchmar discovered the hospital and went to see the baby, he said. “I touched his cheek and I cried--until I was escorted out by a nurse,” Krchmar said. “I took a picture of him. I have it in my wallet.”

Krchmar said his family bought the child presents, and he prepared a room with a crib, toys, books and a little desk. “I am going to be part of my son’s life as long as I breathe oxygen on this very Earth,” he said.

Calling the ruling a “gross travesty of justice,” Larry Hellmann, director of the Fathers’ Rights Center in Vista, said the child ultimately will suffer because he will be denied a relationship with Krchmar.

“It gives the mother the right to choose and dis-choose a father at will,” Hellman said. He added that the organization will lobby for a change in the state law.

But Justice Kennard, in a concurring opinion signed by Justices Marvin Baxter and Janice Rogers Brown, warned that “a man who wishes to father a child and ensure his relationship with that child can do so by finding a partner, entering into a marriage and undertaking the responsibilities marriage imposes.”

“The due process clause of the United States Constitution provides no insurance against that risk,” she wrote, “and is not an instrument for disrupting the marital family in order to satisfy the biological father’s unilateral desire, however strong, to turn his genetic connection into a personal relationship.”

Dissenting Opinion

Justices Ming W. Chin and Stanley Mosk dissented, arguing that Krchmar was entitled to a court hearing to prove he was the biological father and to determine whether it would be in the child’s best interest to see him.

Although a court could deny Krchmar visitation rights, he deserves at least to be allowed to present his case, Chin wrote. “My view of this case merely recognizes the reality that nontraditional living arrangements do exist,” Chin wrote.

A Riverside County trial court had ruled that Krchmar could attempt to prove his paternity through blood tests. Krchmar’s lawyer said the tests showed that Krchmar was the father, but they were not considered as evidence because Dawn and her husband challenged the trial court’s decision. After a Court of Appeal upheld the trial court’s ruling, the state Supreme Court granted review.

“Everybody knows this kid is Jerry’s kid. . . . Dawn and her husband know it. But legally he is not the father according to this decision,” Fuller said.

She said the ruling has “far-reaching implications” for people who date before they are legally divorced.

“When the justices say you just shouldn’t get involved with someone who is married, that is not necessarily an option in today’s society,” Fuller said. “Maybe 20 or 30 years ago, people who weren’t finally divorced didn’t go out on dates, but that is not the way it is in the ‘90s. . . . As far as Jerry was concerned, this woman was as good as divorced and they were planning to get married.”