R.McG. and C.W. v. J.W. and W.W.
No. 80SA167
Supreme Court of Colorado
Decided August 11, 1980.
615 P.2d 666
(1946); People v. Hardin, 199 Colo. 229, 607 P.2d 1291 (1980); People v. Bugarin, 181 Colo. 62, 507 P.2d 875 (1973);
The judgment is reversed and the cause is remanded to the district court for a new trial.
JUSTICE ERICKSON does not participate.
David Burnell Smith, for defendants-appellees.
En Banc.
JUSTICE QUINN delivered the opinion of the Court.
This appeal raises the question whether the Uniform Parentage Act (UPA),
Plaintiff-appellant R.McG. commenced an aсtion in 1978 in the Denver Juvenile Court against defendants-appellees, J.W. and W.W., on behalf of himself and the
Prior to hearing the motion for summary judgment, the court granted R.McG.‘s motion for serological tеsting of R.McG. and W.W.4 The results of these tests indicated that R.McG. could not be excluded as the father of C.W., and that the probability of R.McG.‘s paternity was 98.89 percent.5 The testing laboratory was unable to isolate a sufficient number of lymphocytes from the blood sample of W.W. and requested another blood sample from him, but he refused to comply with the request. In opposition to summary judgment R.McG. filed an affidavit stating that he was the natural father of C.W., and that he and J.W. had intercourse regularly at any possible time of conception; that he and J.W. had planned to divorce their respective spouses and marry each other; that J.W. acknowledged in a sworn codicile to her will and in correspondence that he was the natural father of C.W.;6 and that C.W. had visited almost daily with him until she was 1 1/2 years old and had developed a close relationship with R.McG.‘s three other children.
R.McG. opposed the motion for summary judgment on the grounds that the application of the UPA in a manner that denied
The juvenile court rejected the constitutional claims of R.McG. and granted the motion for summary judgment on behalf of J.W. and W.W., holding that R.McG. lacked capacity under the UPA to bring this action. We determine that under the circumstances of this case the failure of the UPA to grant R.McG. the right to bring an actiоn for a determination of his paternity of C.W. violates equal protection of the laws under the federal and state constitution and the equal rights amendment to the Colorado Constitution.
I.
Before the enactment of the UPA, a putative father had no statutory right to commence an action to establish his paternity. The then existing statute authorized an action by the child‘s mother or guardian or the county department of social services, as the exclusive means of establishing paternity.
One basic purpose of the UPA is the establishment of the parent-child relationship,
The UPA, however, makes no provision for a male claiming to be the natural father of a child to bring an action to establish his paternity under the circumstances present here.
“(1) A child, his natural mother, or a man presumed to be his father under
section 19-6-105(1)(a) . . . may bring an action:“(a) At any time for the purpose of declaring the existence of the father and child relationship presumed under
section 19-6-105(1)(a) , . . . ; or“(b) For the purpose of declaring the nonexistence of the father and child relationship presumed under
section 19-6-105(1)(a) only if the action is brought within a reasonable time after obtaining knowledge of relevant facts, but in no event later than five years after the child‘s birth. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party.”
Under
The juvenile court, relying on the interpretative rule of expressio unius est exclusio alterius, reasoned that since
II.
R.McG. argues the juvenile court‘s construction denying him statutory capacity or standing to establish that he is the natural father of C.W. violates equal protection of the laws under the
“Gender-based distinctions ‘must serve important governmental objectives and must be substantially related to achievement of these objectives’ in order to withstand judicial scrutiny under the Equal Protection Clause.” Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); see Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). No one questions the interest of the state in preserving the integrity of family units already in existence and fostering child rearing in harmonious family settings. See
“... [T]he unquestioned right of the State to further these desirable ends by legislation is not in itself sufficient to justify the gender-based distinction . . . Rather, under the relevant cases applying the Equal Protection Clause it must be shown that the distinction is structured reasonably to further these ends . . . [S]uch a statutory ‘classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstаnced shall be treated alike.‘” Caban v. Mohammed, 441 U.S. at 391, 99 S.Ct. at 1767, 60 L.Ed.2d at 306.
We, therefore, must analyze the pertinent provisions of the UPA under this intermediate standard of judicial scrutiny applicable to gender-based classifications.
This statutory scheme creates more than a difference in treatment of natural mothers and fathers. It establishes contrary treatment. Although a statutory classification under the intermediate level of scrutiny need not be tailored precisely to the interest sought to be achieved, it must at least mesh substantially with the purpose that the statutory classification is designed to accommodate. The statutory classification and corresponding difference in treatment created by
The gender-based inequality of
Under the circumstances of this case, the rebuttable presumption of paternity in W.W., the husband of the natural mother, is converted into a conclusive presumption against the claiming natural father. Thus, the statutory scheme denies the claiming natural father, R.McG., judicial access to establish a constitutionally significant relationship, Stanley v. Illinois, supra, while simultaneously granting the natural mother practically unencumbered judicial access to establish that same relationship if she so desires.
Procedure by presumption is permissible, but when that procedure “forecloses the determinative issues . . . [and] explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child.” Stanley v. Illinois, supra. We hold that so long as the UPA grants a natural mother judicial access for a period of years to seek a determination of paternity against the naturаl father of a child born during the marriage of the natural mother to another, equal protection of the laws under the United States and Colorado Constitutions mandates that a claiming natural father be granted judicial access and standing to establish his paternity of that child during that same period of time.
Because we have found that
III.
The natural mother and her husband, J.W. and W.W., citing Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), contend that granting R.McG. standing to pursue his claim for a declaration of paternity will violate their constitutional right of privacy emanating from the due process clause of the Fourteenth Amendment. The privacy interest implicated in Griswold was that of reproductive autonomy. See Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). That privacy interest belongs to the individual and not to the family as a unit, e.g., Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), and it is not involved in the posture of this case. Moreover, whatever interests of J.W. and W.W. might be impacted by the continuation of R.McG.‘s claim, those interests certainly are no greater than the interest of R.McG. in establishing his paternity of C.W., and the interest of C.W. in determining her biological parentage and the rights incident thereto. See Caban v. Mohammed, supra; Stanley v. Illinois, supra; In re Lisa R., 13 Cal.3d 636, 119 Cal. Rptr. 475, 532 P.2d 123 (1975), cert. denied, 421 U.S. 1014 (1975). Therefore, we find the argument of J.W. and W.W. unpersuasive.
IV.
We are not unmindful that the continuation of this paternity proceeding might affect the relationship of J.W. and W.W. However, a prohibition of the proceedings will produce at least equally adverse consequences to the claiming father. Also, we are aware of the potential consequences that these proceedings might create for the minor child. In that regard we note that the juvenile court appointed a guardian ad litem to protect the child‘s interests, and the guardian ad litem‘s position consistently has been that R.McG. should not be denied standing to establish his claimed parentage of C.W. In fact, after the court granted summary judgment, the guardian ad litem requested the court that it permit the action to continue on behalf of the child so that biological parentage and other rights of the child, such as inheritance and support, might be determined. That request was denied. The guardian ad litem‘s position reflects a candid admission that the best interests of the child, under the circumstаnces of this case, are not necessarily coextensive with those of J.W. and W.W., and are extremely difficult to determine.
In summary, we hold that where, as here, the statutory scheme allows a natural mother to seek a judicial declaration of paternity in the natural father in connection with a child born to the natural mother during her marriage to another, the equal protection guarantee of the federal and state constitutions as well as the Colorado equal rights amendment require that a claiming natural father be accorded standing to file and proceed with his claim for a judicial declaration of paternity in himself with respect to a child born to the natural mother during her marriage to another.
The judgment is reversed and the cause is rеmanded to the juvenile court with directions to vacate the summary judgment and to proceed in a manner consistent with the views expressed herein.
JUSTICE DUBOFSKY specially concurs.
JUSTICE LOHR dissents.
JUSTICE DUBOFSKY specially concurring:
I concur in the majority‘s result based on the constitutional infirmity in
I believe that the legislature may give preference in paternity proceedings to a mother‘s family unit in which the child resides without running afoul of constitutional guarantees of equal protection. Usually, no one questions the identity of the mother because of the mother‘s pregnancy and delivery of the child. Paternity is not as easy to determine.
The statutory preference for the mother‘s family unit, however, does not entitle the state to exclude by the conclusive presumption in
Due process consists of those procedural safe-guards designed to accord to the individual “the right to be heard before being condemned to suffer grievous loss of any kind” as a result of governmental acts or omissions. Joint Anti-Fascists Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646-7, 95 L.Ed. 817, 852 (1951) (Frankfurter, J., concurring). The nature of due process means that the procedures needed to minimize error and reduce the dangers of arbitrary action vary “according to specific factual contexts.” Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed.2d 1307, 1321 (1960).
In order to determine if due process provides the putative father standing to rebut the presumption that the child is the issue of the mother‘s husband, we must weigh competing private and state interests. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).2 Here I believe we should weigh the putative father‘s indication of interest in the child as described in the majority opinion with the state‘s interest in protecting the integrity of the family unit in which the child resides.3 Had the father not made continuing efforts to maintain contact with the child and indicated his desire to support the child, the state‘s interest would prevail. But
JUSTICE LOHR dissenting:
The Uniform Parentage Act1 permits the mother of a child born in wedlock to bring an action to determine that her husband is not the father of the child. The paternity of the child by another man may then be determined in that same action if that other man (third-party father)2 has been made a party to the action. The third-party father is given no right to bring an action to determine that the husband is not the father of the child.
The facts are set out in the majority opinion.
I.
The Uniform Parentage Act is part of the Colorado Children‘s Code.3 The purposes of the Colorado Children‘s Code have been declared by the General Assembly to include:
“(1) (a) To secure for each child subject to these provisions such care and guidance, preferably in his own home, as will best serve his welfare and the interests of society;
“(b) To preserve and strengthen family ties whenever possible, including improvement of home environment;
“(2) To carry out these purposes the provisions of this title shall be liberally construed.”
We have recognized and implemented these purposes in various factual settings. See R.M. v. District Court, 191 Colo. 42, 550 P.2d 346 (1976); In re People in Interest of M.M., 184 Colo. 298, 520 P.2d 128 (1974); see also People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976). The public policy reflected in the stated purposes of the Colorado Children‘s Code is expressed in similar ways in related statutes.4 There can be no doubt of the strength and legitimacy
II.
The presumptions of paternity found in the Uniform Parentage Act faithfully implement the declared legislative purposes. The mother‘s husband is presumed to be the natural father of a child born during a marriage or attempted marriage.
Only a child, his natural mother, or a man presumed to be his father under
In the event the presumption of paternity is rebutted in an action brought under
III.
We must determinе whether creation of the two statutory classes, the members of
It has been recognized that a man who has sired and raised children born of an unwed mother has a cognizable and substantial interest in retaining custody of his children. Stanley v. Illinois, 405 U.S. 645 (1972). Contrary to the majority‘s contention, this principle has never been extended to a conclusion that an interest in a determination of parental status with respect to a child born during a marriage exists in a person other than the husband of the mother of that child. Whether such an interest exists in a third-party father at all may be doubted, at least in circumstances where the child is conceived during the marriage and lives within the family unit after birth. No matter how we may perceive the mores of our society, it is not without significance that adultery is an act so contrary to declared public policy that it has been prohibited in the Colorado Criminal Code in a section enacted in 1971.
Even assuming that the third-party father has or can develop an interest which is constitutionally cognizable, the Uniform Parentage Act does not deny him equal protection of the laws in the circumstances of the instant case. Certainly any interest which might be recognized in the third-party father does not rise to the level of a fundamental right, requiring that the legislative classification preventing nonfamily members from attacking the presumption that the husband is the natural father be tested by the standard of strict scrutiny. See Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). The majority opinion does not contend that a standard of strict scrutiny applies.
Absent an infringemеnt of a fundamental right or the creation of a suspect classification, the appropriate test to determine whether equal protection standards are satisfied is whether the classification is reasonable, not arbitrary, and bears a rational relationship to legitimate state objectives. Mosgrove v. Town of Federal Heights, 190 Colo. 1, 543 P.2d 715 (1975), citing Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974). Mathematical precision in establishing classifications is not required. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).
The legislative purpose of preserving the family ties is not only legitimate but strong. It would be difficult to imagine anything more disruptive to a family relationship than a challenge to the presumption that the husband is the father of a child born during the marriage. The recognition of the right of persons within the family unit to make such a challenge simply reflects the reality that, public policy notwithstаnding, marriages do fail. See Uniform Dissolution of Marriage Act,
IV.
The majority views the nature of the classification differently and, in my view, erroneously. Because the mother may challenge the presumption, but the third-party father may not, the majority views the classificаtion as gender-based and therefore suspect. But the class which may challenge the classification extends beyond the mother to her husband, and to the child, who may be of either gender. The criterion for membership in the class is not gender-based, so the higher level of scrutiny which the majority would apply to the test for gender-based classifications for equal protection purposes is not applicable. I would construe the statutes to permit a third-party father to intervene to assert his paternity in any action brought by another to challenge the presumption of paternity in the husband, see
V.
From the conclusion that the class is not gender-based, it follows that the equal rights amendment of the Colorado Constitution7 has no application.
VI.
The concurring opinion concludes that due process of law is denied to the third-party father by the Uniform Parentage Act, in contravention of
As discussed in Part III, it is not at all certain that the third-party father has a constitutionally protected interest under the facts of the instant case. Those facts make this case very different from Stanley v. Illinois, supra. See Quilloin v. Walcott, 434 U.S. 246 (1978). If the third-party father has a constitutionally cognizable interest, I agree with the concurring opinion that the competing private and state interests must be weighed in determining whether due process of law requires that a hearing be accorded to the third-party father to permit him to attempt to rebut the presumption that the husband is the father. In light of the public policy interests in preserving and strengthening family ties and providing stable home environments for children, I cannot conclude that due process of law is denied to the third-party father in this case because he is precluded from determining his paternity unless and until the presumption of the husband‘s paternity is rebutted in an action brought by someone within the family unit. See Quilloin v. Walcott, supra.
It may be that factual circumstances could exist which would invite the recognition of an interest in a third-party father which would mandate an opportunity for hearing with respect to the presumption of the husband‘s paternity in order to accord due process of law to the third-party father.8
A person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the court. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); accord, People v. Stage, 195 Colo. 110, 575 P.2d 423 (1978); People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).
It may be objected that to draw a line between any factual circumstances in which a third-party father cannot be denied a hearing to challenge the presumption of the husband‘s paternity and factual circumstances in which a hearing for such purpose need not be permitted would be a difficult task. This is undoubtedly true. Litmus test certainty in application has never been the criterion for adoption of rules of constitutional adjudication. Development of limits of constitutional protections on the basis of case by case determinations is a traditional role of the courts. We should not shirk the task with respеct to the issue involved here.
I would affirm the judgment of the juvenile court.