365 N.E.2d 892 | Ohio Ct. App. | 1977
The appellant, Ge Ge Martin (a/k/a Ge Ge De Jesus), filed a complaint in the Juvenile Court of Cuyahoga County, alleging one Angelo L. Ortiz to be the reputed father of her child, Julia Louise De Jesus, born on May 24, 1971. At the time of the child's birth, the appellant was married to one Reuben De Jesus whose name appears on the birth certificate as the father of the child. Subsequent to the child's birth, the appellant and Reuben De Jesus were divorced. *23
The case was tried before a jury on October 20, 1972, and a verdict was returned against Angelo L. Ortiz who was ordered to make payments for the support of Julia and to pay past care and maternity expenses of the appellant.
The appellant then requested the Department of Health of the state of Ohio to change the birth certificate of the child to show Angelo L. Ortiz as the natural father. Her request was denied on the basis that the requirements of R. C.
The appellant then filed an application in the Probate Court of Cuyahoga County on October 10, 1973, to legitimate Julia Louise De Jesus. On January 16, 1974, a referee in the probate court, after conducting a hearing, denied the appellant's application holding that there had been no *24
compliance with R. C.
"The Probate Court erred in denying appellant's application for legitimization of the minor child of the parties."
Once again, this court is called upon to decide a case in which discrimination is alleged against an illegitimate child. As stated in Green v. Woodard (1974),
"Much has been written concerning the discriminatory practices and treatment of illegitimate children under feudal and common law. In the past, illegitimate children were treated as "nothing" and reasons given for such discrimination were to: (1) preserve feudal tenure; (2) discourage illegitimate relationship; (3) avoid artificial presumptions of intent; (4) encourage legitimate family relationships; (5) protect the rights of legitimate children.
"Application of these theories has only resulted in discrimination against illegitimates and has not reduced illegitimate births, but to the contrary there has been an increase in illegitimate births. Rather than again discuss in detail these past discriminatory practices, reference is made to Judge Leo Jackson's opinion and also the concurring opinion inButcher v. Pollard (1972),
The legislatures and courts recently have been reexamining the law regarding illegitimate children. Substantial *25 changes in attitude have taken place. The current trend is to recognize illegitimate children as being the same as legitimate children. This has been accomplished by legislative enactments recognizing rights of illegitimate children and also by court interpretation of statutes.2
In the present case, we are concerned with the Ohio legitimation statute, R. C.
The principal question to be determined in this case is whether the foregoing statute is to be interpreted narrowly as decided by the probate court or whether the Equal Protection Clauses of the
R. C.
(1) The basis of the probate court's decision is that legitimation of an illegitimate child is a matter for the state *26
legislature which decided its method and manner when it enacted R. C.
(2) Appellant's argument is that whenever a man is determined to be a "reputed father" of the child in a bastardy proceeding in the juvenile court under R. C.
(3) A third possible interpretation involves a constitutional issue. Since the Ohio Legislature enacted the legitimation statute, R. C.
It is our view that the appellant's argument, the second alternative discussed above, that a juvenile court determination that a man is a "reputed father" under R. C.
Juvenile court proceedings under R. C.
We will next consider the first and third possible interpretations together. It is our view that the narrow position taken by the probate court in its interpretation of R. C.
It is noted that R. C.
A construction of R. C.
We are not unmindful of the fact that proof of a "natural father" may be difficult, if not impossible, absent acknowledgment. Difficulty of proof, however, is not a valid reason for depriving a child of the opportunity to become legitimated. See Gomez v. Perez, supra; Stanley v. Illinois,supra.
Further, the argument that the foregoing interpretation invites spurious and fraudulent claims can be overcome by a requirement that proof of a natural father be by clear and convincing evidence rather than by a preponderance of the evidence.4
It is not a new or novel concept in the United States that a natural father may be determined and a child legitimated in court proceedings without acknowledgment by the father. Several states have recently enacted legislation that permits legitimation by a court adjudication of paternity other than by acknowledgment by the father.5 These proceedings are in addition to legitimation by adoption and legitimation by acknowledgment by the natural father.
It is our holding that because the Ohio Legislature adopted R. C.
The appellant's assignment of error is well taken in that the Probate Court of Cuyahoga County erred in denying the appellant an opportunity to prove by clear and convincing evidence that Angelo L. Ortiz is the natural father of Julia Louise De Jesus and that establishment of this relationship is for the best interest of the child.
The judgment of the probate court is reversed and this case is remanded for further proceedings consistent with this opinion.
Judgment reversed.
DAY, P. J., concurs.
PARRINO, J., dissents.
"When a man has a child by a woman [and] (sic) before or after the birth intermarries with her, the child is legitimate. The issue of parents whose marriage is null in law are nevertheless legitimate.
"The natural father of a child may file an application in the probate court of the county in which he resides, in the county in which the child resides, or the county in which the child was born, acknowledging that the child is his, and upon consent of the mother, or if she is deceased or incompetent, or has surrendered custody, upon the consent of the person or agency having custody of the child, or of a court having jurisdiction over the child's custody, the probate court, if satisfied that the applicant is the natural father, and that establishment of the relationship is for the best interest of the child, shall enter the finding of fact upon its journal, and thereafter the child is the child of the applicant, as though born to him in lawful wedlock."
The discussion in this case is confined to the provision in the second paragraph of R. C.