A big part of my practice has been representation of fathers in Superior Court and occasionally in the Court of Appeal.  One of the most legally interesting areas of the law has been the evolving rights of fathers to assert their rights to custody to children born out of wedlock.  Historically that has been the vast minority of the cases, but as the percentages of unmarried women having children skyrocket, certain cases have demanded reevaluation of our assumptions about how to handle these cases.

One of the barriers that fathers still run up against is the need for them to welcome the child into their home to qualify to be a presumed parent.  This month we saw a potential opening for fathers closed by the Fourth District. 

In this case, two married sailers found themselves stationed in the Middle East.  They had an affair and a pregnancy resulted.  The two of them went to doctor’s visits, and the biological father spoke, read and sang to the child in utero.  The two allegedly agreed to divorce and marry each other.  He told his family of his new biological child and mother allegedly confirmed he was the father to him.

Wife decided to stay with her husband and suit ensued. 

The key reasoning was … in approval of Kelsey S. supra (see footnote) … that “increasingly over the last three decades, our courts have resolved paternity disputes by looking to the existance and nature of the social relationship between the putative father and child  …  We have given great weight to these social relationships, holding the relationship of a man who has lived with a child and treated the child as his son or daughter is much more important, to the child at least, than a biological relationship of actual paternity…”

As noted in the footnote, one of the primary reasons for this was that in 1975 we changed the paternity laws to focus less on the historical stigma of being born out of wedlock.  This was, incidentally, about the same time that no fault divorces were enacted by the state legislature.

 We know that where there is no justice the people suffer. I am not sure whether I feel any sympathy for this father or not.  When you sleep with someone else’s wife, there might be some negative consequences.    However, it does appear that our attempts at following a new moral compass lead us in places that we never expected.  And I think I have an issue with where this is all leading us.

Once we assume that, like in the movie the Highlander, that there “can be only one” someone is going to be pretty unhappy.  I am not sure that we can trash the concept of traditional families, and expect Father’s Day to go well.   My question is only this.  Once we decide that marriage, ethics, and the traditional family is going to be tossed in the rubbish heap, can we then still as a society say that we should have only one father?  And if so, why?  What do you think?

Footnote: The case of Kelsey S. 1 Cal4th at p. 845 states that:

Richard M., supra, 14 Cal. 3d 783, was decided in a statutory context much different from the one that now exists. At that time, the determination was whether the child had been legitimated by the father. The Richard M. court stressed this fact. “Because of the stigma and unfavorable legal treatment that attends classification of a child as illegitimate, California courts have almost consistently held that [former] section 230 must be liberally construed in favor of finding legitimation.” (Id., at p. 793.) If a child were not legitimated, it had no legal father. In 1975, however, the Legislature enacted California’s Uniform Parentage Act, which abolished the concept of legitimacy (or illegitimacy) and replaced it with the concept of parentage. (§ 7002; In re Sabrina H., supra, 217 Cal. App. 3d 702, 709, fn. 7.) Subsequent decisions have observed that the policy reason for straining to find legitimation by expanding the doctrine of constructive [1 Cal. 4th 829] receipt is no longer present. In situations like the one before us, “the baby will end up with a father …”-either the biological father if he is granted presumed father status or the adoptive father. (Adoption of Marie R., supra, 79 Cal. App. 3d 624, 629, italics added.)

More recently, we referred to the notion of constructive receipt with apparent disfavor in Michael U. v. Jamie B., supra, 39 Cal. 3d 787 (Michael U.). As in the present case, a biological father sought custody of his child despite the mother’s objection and her desire to have it adopted by third parties. We reversed an order granting the father temporary custody. In explaining the statutory framework, the lead opinion stated, “Michael is a natural father, not a presumed father, because he has not yet received Eric [the child] into his home. [Citation.] If, however, he actually acquired physical custody, he could receive Eric into his home and thereby acquire the status of a presumed father. [Citations.] … Thus the present controversy, although nominally about the temporary custody of Eric pending the adoption proceeding, will probably determine the fate of the proposed adoption.” (Id., at p. 791, fn. omitted.) The lead opinion also cited without criticism the statement in Adoption of Marie R., supra, 79 Cal. App. 3d 624, 630, that constructive receipt is insufficient under section 7004(a)(4). (Michael U., supra, 39 Cal. 3d at p. 791, fn. 3.)

The observation in Michael U., supra, 39 Cal. 3d 787, does not resolve the question before us because the issue of constructive receipt was not before the court, and the quoted statements were unnecessary to the decision. Michael U. therefore provides no authority for deciding whether the doctrine of constructive receipt is valid under section 7004(a)(4). (Brown v. Kelly Broadcasting Co., supra, 48 Cal. 3d 711, 734-735.) Moreover, the observation as to constructive receipt was made in a lead opinion signed by only two justices. [6] “[A]ny proposition or principle stated in an opinion is not to be taken as the opinion of the court, unless it is agreed to by at least four of the justices.” (Del Mar Water, etc. Co. v. Eshleman (1914) 167 Cal. 666, 682 [140 P. 591]; see generally 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 808, pp. 787-788.)

[2e] In summary, nothing in the language or legislative history of section 7004(a)(4) supports the claim of constructive receipt. The decisions of the Courts of Appeal have also rejected the claim. We have not previously decided the question and, to the extent we have noted the issue, our decisions either provide little guidance or cast doubt on the notion of constructive receipt, especially in light of the statutory abrogation of illegitimacy. Petitioner therefore correctly admits that section 7004(a)(4) does not by itself provide for presumed father status based on a father’s constructive [1 Cal. 4th 830] receipt of the child, i.e., his unsuccessful attempts to obtain custody over the mother’s objection. We cannot accept petitioner’s invitation to construe section 7004(a)(4) to avoid the alleged constitutional conflict. To do so would require us to judicially rewrite the statute.