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.