The Power of Marriage in Making Men Fathers

Here’s a recent case from California that reminds me, once again, of how much weight the law puts on marriage when it has to determine fatherhood.   (I’ve linked to the slip opinion, but it will go away at some point.  The case is called HS v. Superior Court and is from the Fourth District California Court of Appeals.  It’s dated 4/22/2010.  I’ll try to update the link if I find a better source.)  While this case may not be very unusual, it surely drives a particular point home.    

Petitioners were a married couple. (The opinion seems to make something of the fact that they are from China, but I cannot tell that this actually has anything to do with the outcome of the case.)   They divorced in 2001 and remarried in 2002.  

In 2005 the wife became pregnant.   At this time, she and her husband were living apart, although they spent weekends together.  It also appears (the court is less than completely clear about the timing) that the wife was having an affair with SG. The wife concealed the pregnancy from her husband.  She told SG, who suggested she have an abortion.   In response, she ended the affair, but it was SG and his mother who came to the hospital when the baby was born.  

After the child was born, SG and the wife signed a voluntary declaration of paternity.  These forms are designed to provide a short and simple way that a man can establish that he is the parent of a child.   All states use some version of this procedure.   In California it seems to be called a POP (Parental Opportunity Program–one has to wonder who long they worked on that acronym.)  

Now the wife here actually shouldn’t have been allowed to execute this form, because it is only available to unmarried women.   She, of course, was married.   Children born to married women have fathers–the husbands of the women who give birth–and so the form isn’t needed.   Indeed, as this case shows, it only makes matters confusing. 

Anyway, SG and the wife executed a POP when the child was born.  Two weeks later the husband learned of the child’s birth.  He and his wife reconciled.   He welcomed the child (and his wife) into his home. 

The husband and wife allowed SG to visit the child occasionally at first.  But after a while they decided to end his visitation.  He went to court, asserting he was the father.  He had two bases for this claim–the POP and a claim to genetic connection.  To prove the latter he sought blood tests.

In this opinion the appellate court rejects his claim.   First, the wife shouldn’t have executed the POP because wife was married.  Second, there’s no point in doing blood tests because even if his DNA matches that of the child, the husband has a superior claim to parental rights. 

Two factors are critical.  First, the husband and wife are united in their desire to raise the child within the marital home.  If either of them sided instead with SG, the outcome would be different.   Second, SG has no established relationship with the child.    The court suggests that if you changed these factors, you might get a different result.   

This case demonstrates the hierarchy of parentage  in common use in the US.   At least in some cases, marriage trumps biology.   But I don’t want to oversimplify.    If the husband preferred to not to be a parent, he could invoke biology to defeat the marital presumption.  If the wife preferred to raise the child with SG she could probably invoke biology to accomplish that (assuming in fact the DNA woud show SG to be biologically related to the child.)   What marriage does is give the married couple power to determine the outcome, power that the unmarried man lacks.


11 responses to “The Power of Marriage in Making Men Fathers

  1. I would just like to point out that SG DID have an established relationship with the child until it was curtailed by the married couple.

    If I could I’d rule in favor of SG, if only because this couple doesn’t seem to have a good track record. If the whole idea is that the child is better off being raised in a marital home, I don’t know how likely this is going to be. Although I realize

    I also remember that we had a similar case between to female partners, in which the bio mom teamed up with the biological dad against her former partner.

    I recall in that case that you didn’t think highly of a court’s propensity to rule in favor of an intact “natural” family household.

    • I actually didn’t write about this case because I thought the court got it right. I wrote because, like it or not, it is a simple illustration of a very widely used legal rule. I think virtually all states might reach the same result here–where a husband and wife team up against a man who is biologically related to the child, the husband and wife win.

      I’m just reading a brand new NY decision which I’ll write about very shortly that offers and interesting variation on this rule and leaves me with some harder questions. But here I would be inclined to focus, as you did, on the relationship between SG and the child. I’d want more details before I based a decision on that, but I might well be inclined to grant SG some sort of rights.

  2. Something is very striking about this scenario. Whatever we think the law should be, even with agree with it, I’m sure none of us think very highly of the behavior that brought about these complicated situations in the first place. Most of us continue to condemn adultery, and careless adultery to boot!

    Why then should society support , accept and encourage the use of third party gametes in ART- just because no sexual intercourse took place?

    • I think the rule reflects a societal desire to be generally supportive of marriage. It’s not a judgment about whether particular individuals behaved well or not. That’s typically the case when you have a legal rule based in a statute (enacted by the legislature to cover general situations) rather than a court (responding to individual equities.) Keep in mind it is this rule that establishes the legal fatherhood of married men generally.

      Sometimes a rule like the one here may lead to a bad result. I suppose some would say that the occasional bad result (assuming for the moment that this is a bad result) is the price you pay for a rule that generally strengthens the husband/wife union and thus yields good results. Then one could think about whether this cost (the occasional bad result) is worth the general benefit we get from strenghtening marriage. Some people will say it’s a reasonable trade-off. (And let me just say I’m not endorsing this reasoning at the moment, just trying to articulate it.)

      • HMM the more I think about it the more it seems that the law evolved as such precisely because of the stigma of adultery- a stigma so strong that we would rather just make it dissappear and pretend it didn’t happen. There was a time when the stigma was so strong that an illegitimate child could be totally ostracized. Women could be killed! Perhaps then, covering up was the only livable option. But even today, the stigma hasn’t totally disappeared.

        In that, adultery is still comparable to gamete donation- the stigma is still there and I’m sure children born in either situation still feel it.

        If that is true, the question is how do we deal with stigma, do we yield to it or thumb our noses at it or something in between.

  3. marilynn huff

    This law these laws these are the ones that need to be changed. This is why I visit this blog to learn about this kind of injustice and understand the mindset of those in favor of such a horrible thing. Her husband should have NO RIGHTS TO CALL HIMSELF THE FATHER OF ANOTHER MAN’S CHILD UNLESS THAT MAN GIVES THE CHILD UP FOR ADOPTION.

    If the child had been born of the husband’s affair his wife could not take the baby away from the woman he had the affair with unless she gave her child up for adoption. Father’s and Mothers are equally related to their offspring and in California they are equally responsible for raising their offspring. The law that allowed this to happen is in my mind tantamount to assisting these people in kidnapping the child from the father. How can we have such antiquated laws? How can we have laws that apply to men but not to women? What is this double standard that reinforces the outdated idea that a woman is the property of her husband? These are the laws that must be changed. Now how to I go about doing it? Where do I start? I’ve worked on plenty of cases where the person had a revised birth certificate because their name had to be changed to the name of the man their mother had the affair with. In two instances it was because the husband said they were not his children and in three instances it was because the father wanted to be named as father on the certificates and help raise his own children. I don’t know what form they would have filled out, these cases I’m talking about were births that occurred between 1955 and 1986. I had no idea that anything like what Julie describes could actually happen. It just sickens me.

    • The law is certainly ancient in origin. I’ve recounted some of its history elsewhere on the blog. It arose, I think, from a desire to avoid fights over legitimacy, both because finding a child to be illegitimate was harsh indeed and because it was often difficult to have any certainty as to the proper resolution of these cases. (We’re talking hundreds of years ago here, where the most you could do was argue about resemblance of a child. No DNA testing.) It’s continued use, which I think is almost unversal in the US, is interesting, particular as the rationales for it have been largely undercut.

      What you can see here is that the use of the statute has changed. Once it worked against married men, forcing them to count as offspring children who might actually not carry their DNA. I don’t think it was ever used by a man to claim parentage of a child born to a married woman not his wife.

      But now it is used by married men who, together with their wives, may bar a parentage claim from a genetically related man. Indeed, the statutes have mostly been changed to provide that if the husband does wish to get out from under the parental obligation, he can do so (as long as he acts relatively promptly.)

      While this doesn’t explain why the ancient presumption survives, it does throw it into an interesting light. It is, as I said in another comment, about empowering married couples who act together.

      As for why it doesn’t apply to women as well as men, that’s a terrific question, one I regularly raise in family law. I think a short answer migth be that we readily accept the legal construction of fathers. In some ways, we’ve always guessed at who they are, since there was no way to know for sure who was around nine months before the birth to provide the genetic material. By contrast, the woman who gives birth has always (except for surrogacy–a modern development) been seen as the mother. And she’s always there at the birth of the child. So the idea of using law to recognize someone other than that women as the mother seems strange to many people.

  4. marilynn huff

    The law has no business commenting on adultery or marriage in favor or against the rights of a person to raise his or her own offspring. Unmarried people conceive children all the time and it does not stop the law from recognizing the man as the father and the woman as the father and DNA plays into that determination absolutely when going after child support. The law will acknowledge unmarried people as a child’s parents based on what? Blood relatedness, I want to hear what the logic is behind saying that the same standard cannot be used just because the child was born of an affair. I want to hear why the wife of a man who has a child born of his affair cannot swoop in and claim his mistress’s baby. Where is the logic in the double standard how can the existence of such laws possibly be justified? Egad.

  5. Seems archaic to me.

  6. I’m rather shocked by the CA court’s decision. It seems to me that the biological father was manning up to his obligations and doing the right thing. Isn’t the court meant to be promoting men exercising responsibility. Oops sorry I forgot, not in CA, where biological parenthood is deemed reactionary and unworthy of consideration!

    • Don’t pin this one on CA. I think you’d have seen the same result in almost any state. If the married couple stands united, that’s pretty much it–a husband is the father of his wife’s child.

      Though its original purpose is different, this presumption is now justified as a way to protect/support marriage since it allows a married couple, if they are acting together, to prevent an outsider from intervening in their family life.

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