Visitation Rights of Child Born Into An ''Extant Marriage''
In Adoption of Michael H. (1995) the wife and mother was an "international model," the husband a "top executive in a French oil company" and the paramour a neighbor whose primary business interests were based in the Caribbean.
After the wife's affair with the neighbor, the child was born into an "extant marriage," and lived with the husband and the wife for five months.
Then they separated and the husband headed off to New York. a few months later the wife "visited" the paramour in the Caribbean for about two months, then the wife went back to California to live with yet another man, then she "spent time" with her husband in New York, then she returned to the other man in California.
The paramour then instituted litigation to establish his paternity and gain a right of visitation. While the litigation was pending, the wife again returned to live with her husband in New York for about four months, then returned to California, this time to let the paramour live with her in her apartment for about eight months, during which time he held out the child as his own and gained a stipulation in the litigation that he was the child's natural father.
But before the stipulation was filed, the wife instructed her attorneys not to file it and then reconciled with her husband in New York, where it appears she settled down at least long enough for the case to work its way to the United States Supreme Court. (See Michael H., supra, 491 U.S. at pp. 113-115 [109 S. Ct. at pp. 2337-2338].)
No wonder the Michael H. case was limited to its facts! If fickleness had a name it would be that of the wife in Michael H., who flitted between, as the court put it, "a variety of quasi-family units" during the first three years of the child's life. (See id. at p. 114 [109 S. Ct. at p. 2337].)
Justice Scalia's lead opinion centered on the fact the child had been born into "an extant marital union" (see 491 U.S. at p. 128 [109 S. Ct. at p. 2345]; see also id. at p. 129 [109 S. Ct. at p. 2345] ["extant marital family"]) plus the fact that, after the wife's multiple tergiversations, she ended up with her husband and he wished to raise the child as his own. (See id. at p. 129 & fn. 7 [109 S. Ct. at p. 2345].)
There being no tradition protecting (a) a paramour's interest in his child born in an "extant marital" union when, (b) the husband desired to raise the child as his own and, (c) the paramour had no parental relationship with the child, the claimant simply had no "liberty interest" for the due process clause to protect.
The court characterized the eight-month period during which the claimant had lived in the wife's apartment (during one of her orbits between New York, California and the Caribbean) as a time when "if he happened to be in Los Angeles, he stayed with her and her child." ( Id. at p. 123, fn. 3 [109 S. Ct. at p. 2342].)
The lead opinion, however, was willing to allow the possibility that there might be a "different conclusion with regard to adulterous fathering of a child whom the marital parents do not wish to raise as their own." (Id. at p. 129, fn. 7 [109 S. Ct. at p. 2345].)
The crucial fifth vote in Michael H. was provided by Justice Stevens. Basically, Justice Stevens rewrote the issue in the case to make it moot: He began by asking the question whether a state statutory scheme that prevented a man from "obtaining a judicial determination that he is [a child's] biological father--even if no legal rights would be affected by that determination" was "unconstitutional." (491 U.S. at p. 132 [109 S. Ct. at p. 2347] (conc. opn. of Stevens, J.), italics added.)
Having framed the question that way as if nothing hinged on the claimant's suit--Justice Stevens was able to answer it so as to allow himself to vote for the same result as Justice Scalia's lead opinion. In answer, he wrote, "I agree with Justice Scalia that the Federal Constitution imposes no obligation upon a State to 'declare facts unless some legal consequence hinges upon the requested declaration.' " (Id. at pp. 132-133 [109 S. Ct. at p. 2347], italics added.)
The implication of these lines is that since nothing was really at stake in the case, it was hardly unconstitutional for California's statutes to preclude the claimant from obtaining an arid, consequence-less declaration of paternity.
Still, he confronted the reasoning of the lead opinion, and rejected it. "I . . . would not foreclose the possibility that a constitutionally protected relationship between natural father and his child might exist in a case like this." (491 U.S. at p. 133 [109 S. Ct. at p. 2347] (conc. opn. of Stevens, J.), italics added.)
But then, as if to render his preliminary comments irrelevant, he plunged into the merits of the case as if it were not moot by assuming that the claimant did have a constitutional liberty interest at stake.
"Indeed, I am willing to assume for the purpose of deciding this case that Michael's relationship with Victoria is strong enough to give him a constitutional right to try to convince a trial judge that Victoria's best interests would be served by granting him visitation rights." (Ibid.)
Having made the assumption, Justice Stevens (perhaps too cleverly) evaded the issue over which Justices Scalia and Brennan had crossed swords --did the claimant have the right to establish his paternity?--by treating the case as if it was simply a dispute over visitation privileges.
He theorized that the claimant was allowed to seek visitation--if not as a father, as an interested person under former Civil Code section 4601 (now Fam. Code, 3100, subd. (a) ["In the discretion of the court, reasonable visitation rights may be granted to any other person [other than a parent] having an interest in the welfare of the child"]).
After noting that the trial judge "separately considered the effect of 4601," he concluded that the claimant had indeed been "given a fair opportunity" not only to show that he was the child's natural father, and had developed a relationship with her, but that her best interests would have been served by a visitation order. ( Michael H., supra, 491 U.S. at p. 135 [109 S. Ct. at p. 2348] (conc. opn. of Stevens, J.).)
Because the trial judge thus had the "authority" to give the claimant visitation rights, and simply exercised his discretion not to give the "loving and harmonious home" that the wife had (at least by then) developed with her husband, the statutory scheme was "consistent" with the Fourteenth Amendment's due process clause. ( Id. at p. 136 [109 S. Ct. at pp. 2348-2349].)
Justice Stevens never came to grips with the problem that maybe the claimant in the case was necessarily seeking rights in addition to visitation.
For their part, Justices Brennan, Marshall, Blackmun and White squarely sided with the idea that a man in the claimant's position did have a liberty interest protected by the due process clause, and that application of the conclusive presumption even in the case of the claimant before the court was unconstitutional. (E.g., see 491 U.S. at p. 151 [109 S. Ct. at pp. 2356-2357] (dis. opn. of Brennan, J.) & p. 160 [109 S. Ct. at p. 2361] (dis. opn. of White, J.).)
Justice Brennan characterized Justice Stevens's position that the claimant could obtain visitation rights even as a nonparent as "mere wishful thinking," given the nature of such cases (if it goes to litigation, it is because the mother, i.e., the custodial parent, already objects to visitation by the natural father). (See id. at p. 149 [109 S. Ct. at p. 2356] (dis. opn. of Brennan, J.).)