Use common sense, not common law

Thursday, April 16, 1998

Use common sense, not common law

COURTS: Genetic ties to child are stronger than unsteady
marriage vows

The California Supreme Court has turned a blind eye to science
and common sense. Last week, it ruled that a man has no parental
rights to the child he fathers with an adulterous woman who returns
to her husband after the extramarital affair.

By rendering this decision, the court established its belief
that the ties of a precarious marriage are more important than the
biological connection between a father and his child. Moreover, the
verdict has demonstrated the court’s willingness to be guided more
by outdated English common law than contemporary logic.

The case presented to the Supreme Court was delicate and
extremely difficult to resolve. A woman, identified as Dawn D.,
separated from her husband in January 1995 and lived with another
man, Jerry K., for four months until she reconciled with her
husband. Dawn D. became pregnant while living with Jerry, but
sought to deny him both custody and visitation rights as she made
plans to raise the unborn child with her husband.

Jerry attempted to establish his biological connection with the
child through a paternity test. Unfortunately, this proved to be no
small task. Although a lower court granted Jerry’s request, the
state court placed a hold on the test. Surprisingly, the court held
that it did not matter who the biological father of the child
was.

The reason? A California state law founded in English common law
automatically assumes a husband to be the father of his wife’s
child unless he is impotent or sterile. Therefore, the results of a
paternity test would have no bearing upon the court’s verdict.
Although Dawn D. was not even living with her husband at the time
of conception, the archaic law was sufficient basis for disputing
Jerry’s parental claim.

A few centuries ago, it was reasonable for courts to make the
assumption that a husband was always the father of his wife’s
child. In an age when science could not establish parental ties
with certainty, such a law helped prevent unnecessary conflicts
from arising. By today’s standards, however, this law seems
ill-considered. There is no reason to blindly assume anything about
parenthood; genetic relationships can be proven through scientific
procedures.

However, the state Supreme Court overlooked the law’s archaic
foundation when it rendered its verdict. Justice Joyce Kinnon
maintained in her concurring opinion that, even if such a
relationship could be ascertained, "the constitution 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."

Kinnon’s opinion is completely backward. The strife in Dawn D.’s
marriage was not brought about by Jerry’s desire to play a role in
his child’s upbringing. It was caused by her infidelity. A
four-month separation and the commission of adultery had disrupted
her marriage long before Jerry ever filed suit.

What constitutionally entitles a father to his child? The state
Supreme Court leads us to believe that marital status is the
determinant factor. Indeed, its holding that a genetic connection
"did not constitutionally entitle an unwed father to establish a
parental relationship" leads to the conclusion that a man can only
expect to be a parent to his child if he is married to the child’s
mother.

Essentially, the court held that marital status determines
fatherhood. This is at odds with previous court decisions that have
allowed mothers to sue biological fathers for child support based
upon genetic relationships However, in its effort to preserve the
marital family in this case, the court overlooked the rights of the
father, and the best interests of the child. The dissenting opinion
of the court raised an important question: Shouldn’t the father at
least have a right to advocate in favor of his ability to raise the
child?

There is no assurance that the married couple will do a better
job of raising the child than the unwed father. A marriage such as
this one – where adultery and a four-month separation has taken
place – is anything but steady. The husband will be partially
responsible for rearing the product of his wife’s infidelity. It is
clear that the potential for tension in the child’s environment
exists. Given these factors, the biological father should be
granted the opportunity to establish himself as an alternative
custodian.

In today’s world, parenthood should be determined by genetics
and parenting skill. Marital status and obsolete English common law
are no basis for parenthood. The state Supreme Court should come to
this realization before it astonishes California with another
unjust decision.