Is a Child Born to a Married Woman Living With Her Husband Presumed to Be a Child of the Marriage ?

I9n Michael H. v. Gerald D. (491 US 110 [1989]), the Court was called upon to determine the constitutionality of a California statute that provided that a child born to a married woman living with her husband, who is neither impotent nor sterile, is presumed to be a child of the marriage and that this presumption may be rebutted only by the husband or the wife. In this case, there was no factual dispute that the mother's boyfriend was the father of the child. This was proven by blood test results indicating a 98.07% probability of paternity and by admissions of all the parties. In addition, the mother, boyfriend/genetic-father and the child lived together for more than a year. At other times, the mother lived alternately with another man or her husband. Both the genetic-father and the child filed petitions for access with each other. The child claimed that she was denied the equal protection of the laws because both the mother and her husband could challenge the legitimacy presumption but not the child. As to the boyfriend/genetic-father, the Court held that California's irrebuttable presumption was, in reality, a substantive law that in effect stated that an "adulterous natural father shall not be recognized as the legal father." (Gerald D. at 120.) In upholding the presumption against the boyfriend/genetic-father, the Court raised the legal test that "liberty rights must be rooted in history and tradition." "Thus, the legal issue in the present case reduces to whether the relationship between persons in the situation of Michael [the boyfriend/genetic-father] and Victoria [the child] has been treated as a protected family unit under the historic practices of our society, or whether on any other basis it has been accorded special protection. We think it impossible to find that it has." (Gerald D. at 124.) Read one way, Gerald D. stands for the proposition that biology is not destiny and the court will look to the family relationships or unit that best serves the child's best interest, without regard to genetic parenthood. "Where, however, the child is born into an extant marital family, the natural father's unique opportunity conflicts with the similarly unique opportunity of the husband of the marriage; and it is not unconstitutional for the State to give categorical preference to the latter." (Gerald D. at 129.)