R.Mcg. v. J.W.

JUSTICE LOHR

dissenting:

The Uniform Parentage Act¹ permits the mother of a child born in wedlock to bring an action to determine that her husband is not the father of the child. The paternity of the child by another man may then be determined in that same action if that other man (third-party father)² has been made a party to the action. The third-party father is given no right to bring an action to determine that the husband is not the father of the child. Section 19-6-107, C.R.S. 1973 (1978 Repl. Vol. 8). The majority concludes that such disparity in the rights accorded to the mother and the third-party father denies the latter equal protection of the laws, U.S. Const. amend. XIV; Colo. Const. Art. II, § 25, and violates the equal rights amendment to the Colorado Constitution, Colo. Const. Art. II, § 29.1 respectfully dissent.

The facts are set out in the majority opinion.

I.

The Uniform Parentage Act is part of the Colorado Children’s Code.³ The purposes of the Colorado Children’s Code have been declared by the General Assembly to include:

“(1) (a) To secure for each child subject to these provisions such care and guidance, preferably in his own home, as will best serve his welfare and the interests of society;

“(b) To preserve and strengthen family ties whenever possible, including improvement of home environment;

“(2) To carry out these purposes the provisions of this title shall be liberally construed.”

Section 19-1-102, C.R.S. 1973.

We have recognized and implemented these purposes in various factual settings. See R.M. v. District Court, 191 Colo. 42, 550 P.2d 346 (1976); In re People in Interest of M.M., 184 Colo. 298, 520 P.2d 128 (1974); see also People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976). The public policy reflected in the stated purposes of the Colorado Children’s Code is expressed in similar ways in related statutes.⁴ There can be no doubt of the strength and legitimacy of the state interest in fostering harmonious marital relationships and strong family relationships. The majority opinion recognizes the strength of the state interest but finds that the means selected to advance that state interest do not pass constitutional muster in this case. I cannot agree.

II.

• The presumptions of paternity found in the Uniform Parentage Act faithfully implement the declared legislative purposes. The mother’s husband is presumed to be the natural father of a child born during a marriage or attempted marriage. Section 19-6-105(1)(a), (b), C.R.S. 1973 (1978 Repl. Vol. 8).⁵ He is also presumed to be the natural father of a child born prior to the marriage in certain circumstances where he has married or attempted to marry the mother and has acknowledged paternity. Section 19-6-105(1)(c), C.R.S. 1973 (1978 Repl. Vol. 8). A presumption of paternity exists in another in two instances only: (1) where the third-party father acknowledges paternity in writing, the mother does not dispute the acknowledgment, and any person presumed to be the natural father gives written consent, section 19-6-105(1)(e), C.R.S. 1973 (1978 Repl. Vol. 8); and (2) where the third-party father receives the child into his home and openly holds out the child as his natural child, section 19-6-105(l)(d), C.R.S. 1973 (1978 Repl. Vol. 8).⁶ Any presumption of paternity created by the statute may be rebutted only by clear and convincing evidence. Section 19-6-105(2), C.R.S. 1973 (1978 Repl. Vol. 8).

Only a child, his natural mother, or a man presumed to be his father under section 19-6-105(1)(a), (b), or (c) may bring an action to declare the existence or nonexistence of the father and child relationship presumed under section 19-6-105(l)(a), (b), or (c). Section 19-6-107(1)(a), (b), C.R.S. 1973 (1978 Repl. Vol. 8). No action may be brought more than five years after the birth of the child to declare the nonexistence of the presumed father and child relationship. Section 19-6-107(l)(b), C.R.S. 1973 (1978 Repl. Vol. 8). Thus the persons who may challenge the presumption of the husband’s paternity with respect to a child born during a marriage are limited to certain persons inside the family unit created by the marriage, and the time for challenge is limited. The denial of any right of a person outside a family unit to make such a challenge implements the legislative purpose of preserving and strengthening family ties wherever possible.

In the event the presumption of paternity is rebutted in an action brought under section 19-6-107(1)(b), C.R.S. 1973 (1978 Repl. Vol. 8), paternity of the child by another man may be determined in the same action, if he has been made a party. Section 19-6-107(1)(b), C.R.S. 1973 (1978 Repl. Vol. 8). It thus appears that a third-party father would have a right to intervene in such a proceeding, and to participate once the presumption of paternity in the husband has been rebutted. See C.R.C.P. 24. It also appears that a third-party father can bring an independent action to establish his paternity after the presumption of the husband’s paternity has been rebutted. See section 19-6-107(3), C.R.S. 1973 (1978 Repl. Vol. 8), permitting a person alleging himself to be the father to bring such an action “with respect to a child who has no presumed father under section 19-6-105.” It would seem that, once the presumption of paternity created by that latter section has been rebutted, the child has no such presumed father.

III.

We must determine whether creation of the two statutory classes, the members of one of which may challenge the presumption that the husband is the natural father and the members of the other of which may not, denies equal protection of the laws to a third-party father, who is a member of the latter class.

It has been recognized that a man who has sired and raised children born of an unwed mother has a cognizable and substantial interest in retaining custody of his children. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Contrary to the majority’s contention, this principle has never been extended to a conclusion that an interest in a determination of parental status with respect to a child born during a marriage exists in a person other than the husband of the mother of that child. Whether such an interest exists in a third-party father at all may be doubted, at least in circumstances where the child is conceived during the marriage and lives within the family unit after birth. No matter how we may perceive the mores of our society, it is not without significance that adultery is an act so contrary to declared public policy that it has been prohibited in the Colorado Criminal Code in a section enacted in 1971. Section 18-6-501, C.R.S. 1973 (1978 Repl. Vol. 8); but see Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979) (the father, who was cohabiting with the mother for a substantial time surrounding the birth of the children, was married to another; the court made nothing of that fact in considering the father’s interest with respect to those children). Against the background of that statute and the state interest in preservation of marriages, it requires more imagination than I can summon to find any legitimate expectation of a legally recognized relationship based solely on the blood ties between the child conceived of an adulterous relationship and the natural father of that child.

Even assuming that the third-party father has or can develop an interest which is constitutionally cognizable, the Uniform Parentage Act does not deny him equal protection of the laws in the circumstances of the instant case. Certainly any interest which might be recognized in the third-party father does not rise to the level of a fundamental right, requiring that the legislative classification preventing nonfamily members from attacking the presumption that the husband is the natural father be tested by the standard of strict scrutiny. See Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). The majority opinion does not contend that a standard of strict scrutiny applies.

Absent an infringement of a fundamental right or the creation of a suspect classification, the appropriate test to determine whether equal protection standards are satisfied is whether the classification is reasonable, not arbitrary, and bears a rational relationship to legitimate state objectives. Mosgrove v. Town of Federal Heights, 190 Colo. 1, 543 P.2d 715 (1975), citing Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974). Mathematical precision in establishing classifications is not required. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).

The legislative purpose of preserving the family ties is not only legitimate but strong. It would be difficult to imagine anything more disruptive to a family relationship than a challenge to the presumption that the husband is the father of a child born during the marriage. The recognition of the right of persons within the family unit to make such a challenge simply reflects the reality that, public policy notwithstanding, marriages do fail. See Uniform Dissolution of Marriage Act, sections 14-10-101 to -133, C.R.S. 1973. When relationships reach the point that someone within the family wishes to challenge the presumption of the husband’s paternity, the legislature could reasonably determine that no useful purpose would be served by preventing that person from doing so. This is entirely consistent with denial of that right to third-party fathers unless ,-and until the presumption of the husband’s paternity has been rebutted. The statutory classification bears a reasonable relationship to legitimate legislative purposes. See generally People in Interest of L.B., 179 Colo. 11, 498 P.2d 1157 (1972), appeal dismissed mem., 410 U.S. 976, 93 S.Ct. 1497, 36 L.Ed.2d 173 (1973).

IV.

The majority views the nature of the classification differently and, in my view, erroneously. Because the mother may challenge the presumption, but the third-party father may not, the majority views the classification as gender-based and therefore suspect. But the class which may challenge the classification extends beyond the mother to her husband, and to the child, who may be of either gender. The criterion for membership in the class is not gender-based, so the higher level of scrutiny which the majority would apply to the test for gender-based classifications for equal protection purposes is not applicable. I would construe the statutes to permit a third-party father to intervene to assert his paternity in any action brought by another to challenge the presumption of paternity in the husband, see section 19-6-107(1)(b), C.R.S. 1973 (1978 Repl. Vol. 8), or to bring an independent action for that purpose once the presumption of the husband’s paternity has been rebutted, see section 19-6-107(3), C.R.S. 1973 (1978 Repl. Vol. 8). The statutory scheme, as so construed, reflects a sensitive recognition and accommodation of the public policy considerations and private interests involved. In the circumstances here, where the child was conceived and born during the marriage and never lived with the third-party father, and where the husband and wife were not separated at the times of conception and birth, in my view the strong public policy of strengthening and preserving family ties would cause the classification to survive even that level of scrutiny which the majority concludes to be appropriate, i.e., that the classification has been shown to serve important governmental objectives and is substantially related to achievement of those objectives. See Caban v. Mohammed, supra; see also People v. Green, 183 Colo. 25, 514 P.2d 769 (1973).

V.

From the conclusion that the class is not gender-based, it follows that the equal rights amendment of the Colorado Constitution⁷ has no application.

VI.

The concurring opinion concludes that due process of law is denied to the third-party father by the Uniform Parentage Act, in contravention of U.S. Const. amend. XIV and Colo. Const. Art. II, § 25.

As discussed in Part III, it is not at all certain that the third-party father has a constitutionally protected interest under the facts of the instant case. Those facts make this case very different from Stanley v. Illinois, supra. See Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978). If the third-party father has a constitutionally cognizable interest, I agree with the concurring opinion that the competing private and state interests must be weighed in determining whether due process of law requires that a hearing be accorded to the third-party father to permit him to attempt to rebut the presumption that the husband is the father. In light of the public policy interests in preserving and strengthening family ties and providing stable home environments for children, I cannot conclude that due process of law is denied to the third-party father in this case because he is precluded from determining his paternity unless and until the presumption of the husband’s paternity is rebutted in an action brought by someone within the family unit. See Quilloin v. Walcott, supra.

It may be that factual circumstances could exist which would invite the recognition of an interest in a third-party father which would mandate an opportunity for hearing with respect to the presumption of the husband’s paternity in order to accord due process of law to the third-party father.⁸ This is not such a case. The facts before the trial court reflect that both the mother and the third-party father were married to other persons when the child was conceived and born and that both marriages continued. The child has never lived with the third-party father, although for one and one-half years she visited in his home periodically and became acquainted with his older children. The child has always been in the custody of the mother and her husband and has been supported by them. The third-party father’s only contacts with the child have been during the course of visits permitted by the mother. To me, the important criteria would be the duration and quality of the relationship of the parties, not the probability that the third-party father could in fact prove paternity.⁹

A person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the court. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); accord, People v. Stage, 195 Colo. 110, 575 P.2d 423 (1978); People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

It may be objected that to draw a line between any factual circumstances in which a third-party father cannot be denied a hearing to challenge the presumption of the husband’s paternity and factual circumstances in which a hearing for such purpose need not be permitted would be a difficult task. This is undoubtedly true. Litmus test certainty in application has never been the criterion for adoption of rules of constitutional adjudication. Development of limits of constitutional protections on the basis of case by case determinations is a traditional role of the courts. We should not shirk the task with respect to the issue involved here.

I would affirm the judgment of the juvenile court.

1 Sections 19-6-101 to -129, C.R.S. 1973 (1978 Repl. Vol. 8).

2 For convenience the term “third-party father” will be used to describe a person who claims to be, or is claimed to be, the natural father of a child born during a marriage, and who is not presumed to the the natural father pursuant to section 19-6-105(1)(a), (b), or (c), C.R.S. 1973 (1978 Repl. Vol. 8).

3 Title 19, C.R.S. 1973 (1978 Repl. Vol. 8).

4 The Uniform Marriage Act reflects the legislative purposes of strengthening and preserving the integrity of marriage and safeguarding meaningful family relationships. Sections 14-2-101 to -113, C.R.S. 1973. Section 14-2-102, C.R.S. 1973, provides in pertinent part:

“(1) This part 1 shall be liberally construed and applied to promote its underlying purposes.

“(a) To strengthen and preserve the integrity of marriage and to safeguard meaningful family relationships;”

These purposes are again expressed in our marriage counseling statute, section 14-12-101, C.R.S. 1973, as follows:

“14-12-101. Legislative declaration. It is the declared public policy of this state to maintain desirable marital and family relations; to promote and foster the marriage relationship and reconciliation of estranged spouses; and to take reasonable measures to preserve marriages, particularly where minor children are involved, in the interest of strengthening the family life foundation of our society, and in reducing the economic and social costs to the state resulting from broken homes. In furtherance of this policy, it is the purpose of this article to make competent marriage counseling services available through the district courts of the state to spouses involved in domestic difficulties.”

5 The presumption of legitimacy is one of the strongest presumptions known to the law. Beck v. Beck, 153 Colo. 90, 384 P.2d 731 (1963); Lanford v. Lanford, 151 Colo. 211, 377 P.2d 115 (1962). As those cases reflect, the presumption existed long prior to adoption of the Uniform Parentage Act.

6 In summarizing the statutory presumptions, much of the detail has been omitted in the interest of simplicity.

7 Colo. Const. Art. II, § 29. That section provides: “Equality of rights under the law shall not be denied or abridged by the State of Colorado or any of its political subdivisions on account of sex.”

8 Section 19-6-105(1)(d), C.R.S. 1973 (1978 Repl. Vol. 8), would create a presumption of paternity in any male person who receives the child into his home and openly holds out the child as his natural child. Whether this is sufficiently extensive to protect any constitutionally cognizable interest of a third-party father in all imaginable factual contexts we need not decide today.

9 See Mr. Justice Stewart’s dissent in Caban v. Mohammed, supra, in which he says, “Parental rights do not spring full blown from the biological connection between parent and child. They require relationships more enduring.” 441 U.S. 380, 397, 99 S.Ct. 1760, 1771, 60 L.Ed.2d 297, 310 (1979). See also In re Lisa R., 13 Cal.3d 636, 119 Cal.Rptr. 475, 532 P.2d 123, cert. denied, 421 U.S. 1014, 95 S.Ct. 2421, 44 L.Ed.2d 682 (1975).