Summary
holding that while the Ohio paternity statute granted putative father the right to establish his paternity of a child born during the marriage of the child's mother and another man while that marriage was still intact, the statute was unconstitutional because it infringed upon the intact family's fundamental right to marital privacy and its freedom to raise the children without state-authorized intrusion; citing Michael H. as identifying "the rights of the unitary family as fundamental and the Supreme Court's history of protecting the sanctity of the unitary family."
Summary of this case from K.S. v. R.SOpinion
No. 9271546.
Decided June 16, 1993.
Wendy Hawbaker, for Barry Merkel.
Gerald S. Gold, for John and Jane Doe.
Peter Murray, guardian ad litem.
I. INTRODUCTION
This case is one of first impression in the state of Ohio. Although R.C. 3111.04(A) has been applied in a variety of situations, its constitutionality has not been previously challenged. R.C. 3111.04(A) identifies the parties who may bring a paternity action, specifically stating that any man alleging to be the biological father of a child may bring such an action. Rather than file an answer to complainant Barry Merkel's assertion that he is their child's father, the Does chose to file a motion to dismiss, challenging the statute's constitutionality. The importance of this case is indisputable because of the obvious trauma to families and marital instability that will be caused by allowing any man alleging to be the father of a child born to another man's wife to bring a paternity action. Certainly more important than the precedential effect this decision will have is its immediate effect on John Jr. and his family. This court agrees with the Does' observation: "Once the judge * * * ruptures the father/child relationship, the judge cannot return the parties to the position they were in prior to the blood test, no matter how wise or great his or her judicial power. This is a fact of life." In re Marriage of Ross (1989), 245 Kan. 591, 601, 783 P.2d 331, 338.
Other issues raised by R.C. 3111.04(A) have been addressed by Ohio courts. See, e.g., Joseph v. Alexander (1984), 12 Ohio St.3d 88, 12 OBR 77, 465 N.E.2d 448 (concluding that clear and convincing evidence that there were no sexual relations between the husband and the wife during the time in which the child must have been conceived is sufficient to rebut the presumption, and that allowing such a determination was not contrary to public policy); Hulett v. Hulett (1989), 45 Ohio St.3d 288, 544 N.E.2d 257 (holding that the presumption of legitimacy may be rebutted by clear and convincing evidence, and that genetic testing is one way of rebutting the presumption); Walkup v. Walkup (1986), 31 Ohio App.3d 248, 31 OBR 532, 511 N.E.2d 119 (holding that the mere fact that the husband had a vasectomy prior to conception was insufficient to overcome presumption that the husband was the father of the child born during the marriage, and that the presumption of legitimacy must prevail even though the wife admitted having sexual relationships with another man).
Although John Jr.'s best interests are relevant to a variety of the issues presented to this court, a direct factual inquiry into the circumstances of the Does' family life is not necessary here, as Merkel has not challenged the adequacy of the Does' parenting. Moreover, this court is not required by R.C. Chapter 3111 to conduct a formal best interest hearing in a paternity determination. Robinson v. Burke (Feb. 27, 1991), Summit App. No. 14740, unreported, 1991 WL 24972.
Merkel could, of course, file a complaint challenging the adequacy of John Jr.'s care under R.C. 2151.03 or 2151.031.
II. FACTS
The facts of this case are simple. Jane Doe, the wife of John Doe, gave birth to a son on September 24, 1991. The complainant, Barry Merkel, brought this action to determine the existence or nonexistence of a father and child relationship between himself and the son of John and Jane Doe. Merkel alleges that Jane Doe gave birth to John Jr. after she engaged in a brief sexual relationship with him, and he now asserts his right to a determination of the child's paternity under R.C. 3111.04(A). John Doe is presumed under R.C. 3111.03(A)(1) to be the natural father of the child born during his marriage, and, as he and his wife are married and intend to raise John Jr. as their son, John and Jane Doe want Merkel's paternity action dismissed. This court stayed an order requiring Jane and John Jr. to submit to genetic testing, pending this decision. John Jr.'s guardian ad litem requested the genetic testing, based apparently simply on the fact that the child's paternity was disputed and that the "use of such genetic test in determining [paternity] is widely known and recognized both statutorily and through Ohio case law." (Citation omitted.)
III. DECISION
Merkel's paternity action must be dismissed because it is pursued under a statute which is unconstitutional as applied to the facts of this case. This court finds that the Does have a constitutionally protected interest in maintaining the integrity of their family. Their interest may not be infringed by Merkel, who does not have a protected interest in his relationship with John Jr.
IV. DISCUSSION
Merkel is correct in stating that R.C. 3111.04(A) explicitly grants him standing, as an alleged father, to rebut the presumption that John Jr. is John Doe's biological son. This court believes, however, that R.C. 3111.04(A) is an unconstitutional infringement on the Does' fundamental right to marital privacy and on their freedom to raise their child without a state-authorized intrusion into their family. In addition, the statute is too broad to meet the constitutionally mandated requirement that it be narrowly tailored.
A. R.C. 3111.04(A) IS AN UNCONSTITUTIONAL INFRINGEMENT ON THE DOE FAMILY'S FUNDAMENTAL INTERESTS WITHOUT A SUFFICIENT GOVERNMENTAL PURPOSE TO JUSTIFY THE INFRINGEMENT.
A compelling governmental interest is required to allow the infringement of a family's fundamental interests. The state of Ohio does not have a compelling interest in allowing putative fathers, such as Merkel, to invade the constitutionally protected interests of unitary families, such as the Does.
The state's interest in determining the paternity of John Jr., based strictly on the genetics of this situation, is at most insubstantial, if not completely nonexistent. John Jr. is not in danger of becoming a ward of the state, and his mother is not in need of additional support to raise John Jr., outside that which she benefits from as a partner in an intact marriage. The Supreme Court has also determined that the state ultimately may have an interest in terminating the biological father's relationship because "`the absence of a legal tie with the mother may in such circumstances appropriately place a limit on whatever substantive constitutional claims might otherwise exist.'" Michael H. v. Gerald D. (1989), 491 U.S. 110, 129, 109 S.Ct. 2333, 2345, 105 L.Ed.2d 91, 110, quoting Caban v. Mohammed (1979), 441 U.S. 380, 397, 99 S.Ct. 1760, 1770, 60 L.Ed.2d 297.
In contrast, as a family, the Does have a constitutionally protected interest in maintaining the privacy and integrity of their relationship to one another and to their child. The Supreme Court has consistently protected the family unit from intrusion. "Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition." Moore v. E. Cleveland (1976), 431 U.S. 494, 503, 97 S.Ct. 1932, 1938, 52 L.Ed.2d 531, 540.
See, also, Carey v. Population Serv. Internatl. (1977), 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (individual right to decide whether to bear children); Loving v. Virginia (1967), 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (right to choose whom to marry); Griswold v. Connecticut (1965), 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (married couple's right to use contraceptives in the privacy of their home); Prince v. Massachusetts (1944), 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (due process encompasses the family relationship); Meyer v. Nebraska (1923), 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (right to choose child's education).
Both Merkel and the Does rely primarily on Michael H. v. Gerald D. (1989), 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91. Factually, Michael H. is very similar to this case; however, the governing state statutes differ in a very significant respect. The California statute at issue in Michael H. did not allow putative fathers to assert their paternal rights when the mother of the child is married to another man, while Ohio's paternity statute, if constitutionally valid, specifically grants putative fathers standing to assert paternity even when there is a presumption of legitimacy.
In Michael H., the Supreme Court identified the presumption of legitimacy as a fundamental principle of common law. Id. at 124, 109 S.Ct. at 2342, 105 L.Ed.2d at 107. Although the court noted that the primary policy rationale underlying the presumption appears to have been an aversion to declaring children illegitimate, thereby depriving them of their inheritance rights and perhaps making them wards of the state, the court also stated that the presumption was concerned with promoting the integrity of families. The fact that the effects of illegitimacy have become less harsh in modern society than they once were does not, in and of itself, compel an abandonment of the presumption. The court recognized that the label of legitimacy was not the ultimate issue in Michael H. Rather, the issue was the ability to obtain parental rights and privileges. Id. at 126, 109 S.Ct. at 2344, 105 L.Ed.2d at 108. That a number of states might theoretically allow putative fathers in Michael H.'s situation to rebut the presumption was deemed to be of little consequence by the court. "What counts is whether the States in fact award substantive parental rights to the natural father of a child conceived within, and born into, an extant marital union that wishes to embrace the child." (Emphasis added.) Id. at 127, 109 S.Ct. at 2344, 105 L.Ed.2d at 108. The court held that Michael H. did not have a fundamental right qualifying as a liberty interest, because it was unable to find a single case where a state had awarded substantive rights to the putative father. Id. Therefore, California's statute denying him standing to assert his paternity was not unconstitutional.
Obviously, Ohio case law was included in the court's search.
Merkel argues that the same deference shown to the California legislature is due the Ohio legislature, and that R.C. 3111.04(A) should be applied to this case as enacted. The decision in Michael H. clearly contradicts this argument. While Justice Scalia, writing for the plurality, concluded that "[i]t is a question of legislative policy and not constitutional law whether California will allow the presumed parenthood of a couple desiring to retain a child conceived within and born into their marriage to be rebutted," Id. at 129-130, 109 S.Ct. at 2345, 105 L.Ed.2d at 110, this statement cannot be read to nullify his previous analysis of the status of the rights and interests of the marital family. Justice Scalia's statement is actually a response to the dissent's criticism that the plurality had wrongfully limited its holding to situations where the husband and wife want to raise the child together, and is meant to be considered within a context acknowledging that the putative father was unable to demonstrate a fundamental interest. Justice Scalia's statement cannot be interpreted to require the deference that Merkel suggests.
On occasion, the Supreme Court has held that putative fathers have a protected interest in a relationship with their offspring, but that interest has been limited to situations in which the putative father had developed a substantial relationship with the child. See Stanley v. Illinois (1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (holding that the state may not constitutionally remove children from their unmarried father, upon the death of their mother, when the father had lived with them and supported the children and their mother for eighteen years). See, also, Quilloin v. Walcott (1978), 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511; Caban v. Mohammed (1979), 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297; Lehr v. Robertson (1983), 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614. The putative father in Michael H. attempted to make his claim based upon this line of cases. The court specifically rejected his argument, stating: "We think [this argument] distorts the rationale of those cases. As we view them, they rest not upon such isolated factors [as biology and an existing relationship] but upon the historic respect — indeed, sanctity would not be too strong a term — traditionally accorded to the relationships that develop within the unitary family." Michael H., 491 U.S. at 123, 109 S.Ct. at 2342, 105 L.Ed.2d at 106.
Sixth Circuit courts have also held that parents have a liberty interest in the freedom of personal choice in matters of family life in which the state cannot interfere, and that such an interest is a fundamental one, subject to due process protection. See Doe v. Staples (C.A.6, 1982), 706 F.2d 985, rehearing denied (1983), 717 F.2d 953, certiorari denied (1983), 465 U.S. 1033, 104 S.Ct. 1301, 79 L.Ed.2d 701; Elam v. Montgomery Cty. (S.D.Ohio 1983), 573 F. Supp. 797. Particularly relevant to this case is the Ohio Supreme Court's decision in Saunders v. Clark Cty. Zoning Dept. (1981), 66 Ohio St.2d 259, 20 O.O.3d 244, 421 N.E.2d 152, in which the court held that a family unit, regardless of its composition, is constitutionally protected. Obviously, an attempt to determine that John Jr. is not the biological child of the father in whose family he is being raised, at this crucial stage in his development, would likely disrupt the marriage, the existing parent-child relationships, and the emotional and psychological bonds which have formed between John Jr. and his parents.
In Michael H., the Supreme Court specifically rejected the proposition that it had previously afforded putative fathers constitutionally sufficient interests solely because they had a biological and psychological relationship with the child, and determined instead that the relationships it had previously protected from intrusion fell within its conception of "unitary family." Michael H. was not able to include his own relationship with his daughter in the category of protected familial relationships because the child already had a father who was married to her mother. As Merkel's relationship with John Jr. is nonexistent at this point, it certainly does not deserve the constitutional protection designated for a unitary family. If Merkel had an established relationship with John Jr., it is possible that such a relationship would deserve some degree of protection. At this point, however, this court cannot ignore the fact that John Jr. has a mother and father who intend to nurture and raise him in their unitary family. If this were not the case, or if in the future it is no longer the case, a different result might then be reached regarding an action by Merkel.
The Michael H. decision identified the rights of the unitary family as fundamental, and the Supreme Court's history of protecting the sanctity of the unitary family. Clearly, the California statute did not conflict with a constitutionally protected family interest. If the family's interests, rather than the interests of putative father, had been at issue, the California statute would have been subject to the constitutional requirement that it serve a compelling state interest and be narrowly tailored to serve that interest. 491 U.S. at 124, 109 S.Ct. at 2342, 105 L.Ed.2d at 106. Therefore, the Does are correct that Ohio's statute, when applied to the facts of this case, is unconstitutional under the Supreme Court's rationale in Michael H.
Merkel also argues that the Supreme Court of Ohio, in Joseph v. Alexander (1984), 12 Ohio St.3d 88, 12 OBR 77, 465 N.E.2d 448, determined R.C. 3111.04(A) to be constitutionally valid. However, the holding in Joseph was simply that the presumption of legitimacy may be rebutted by clear and convincing evidence that there were no sexual relations between the husband and wife at the time of the conception of the child. The court did not consider the statute's constitutional implications, and reached its decision five years prior to the Supreme Court's decision in Michael H. Similarly, Merkel's reliance on Hulett v. Hulett (1989), 45 Ohio St.3d 288, 544 N.E.2d 257, is misplaced. The Hulett court did not question the constitutionality of R.C. 3111.04(A) because it was solely concerned with the nature of evidence admissible to rebut the presumption of legitimacy. In addition, as the Does make clear, Hulett was decided after Michael H. was heard, but before it was decided, and apparently Michael H. was not considered by the Hulett court.
Finally, both Joseph and Hulett raise the issue of the rebuttability of the presumption of legitimacy in a very different context from that of this case. In Joseph, the married couple was in the process of divorcing, and they allowed the complainant to believe that he was the father of the child by permitting him to visit with the child and by accepting his money for the child's support and maintenance. The parties in Hulett were also in the process of divorcing when the paternity of their child was challenged. The integrity of the unitary family was not at risk in either case. The fact that the Does are an intact unitary family and have a desire to remain as such is given great weight by this court. If the Does were divorced or in the process of divorcing, or if John Jr. had been removed from their custody as a result of their abuse or neglect, a different result might be reached by this court.
B. R.C. 3111.04(A) IS UNCONSTITUTIONAL BECAUSE IT IS NOT NARROWLY TAILORED.
Additionally, this court finds that even if the state of Ohio were able to assert an interest sufficient to meet the standard required by the Constitution, R.C. 3111.04(A) remains unconstitutional because it is not narrowly tailored to serve that interest. The statute is overbroad because it grants standing to any man alleging to be the biological father of a husband and wife's child.
If a statute infringes on a constitutionally protected interest, the statute must not only serve a compelling state purpose, but it must also be narrowly tailored to achieve that end. Although this second requirement was not emphasized by the Does, it is clear that in addition to failing the requirement that the state of Ohio have a compelling interest to be served by a statute which infringes on the sanctity of the family, R.C. 3111.04(A) is unconstitutional because it is overbroad. The Supreme Court has consistently differentiated between biological fathers who have developed a substantial relationship with their child and those who have not, with the latter afforded no constitutionally mandated protection. A paternity statute must incorporate the governing distinctions that have been previously developed by the court in order to be considered sufficiently narrow.
See cases cited supra.
In this case, Merkel's claims to a relationship with John Jr. are even less than those of Michael H., who was addressed as "father" by the child. The factual possibility that Merkel is the biological father of John Jr. is of little relevance when considered against the fact that John Jr. was born into a family that wishes to continue nurturing and raising him as their own. John Jr. is now seventeen months old. John Jr. is at a critical stage in his development, when his need for continuity in significant relationships is paramount. Even if John Jr. were the biological son of Merkel, this would not change the fact that John Doe is the only father he has ever known. John Doe is, at the very least, John Jr.'s psychological father, and the court must consider the ends Merkel wants to attain by the filing of this complaint. It may seriously undermine the value of the intact unitary family of which John Jr. is a part if this court were to allow Merkel to pursue this action. "So long as a child is a member of a functioning family, his paramount interest lies in the preservation of his family."
See Alan Gurwitt, Why Children Need Their Fathers (Winter 1993), 15 Fam.L.Advoc. 18. "There is a complex unfolding of emotions in the early years, very much influencing emotional responses in later years." Id. at 22.
Accumulated evidence proves the ill effects of separation and loss during the early years of life. J. Bowlby, Attachment and Loss: Retrospective and Prospect (1982), 54(2) Am.J. of Orthopsychiatry 664.
The situation that would result if Merkel's claim to paternity was successful is analogous to the situation that is created through open adoptions. Such adoptions have been criticized as being harmful to the adopted child. Open adoptions have great potential for interfering with the bonding process between adoptive parents and the child, as the adoptive parents are continuously reminded that the child is not theirs. Being confronted with another parent is likely to cause confusion and turmoil for the child. It appears that families who participate in open adoptions greatly resemble foster care families, where the adoptive parent is prevented from becoming a complete psychological parent, with the child paying the ultimate price. A.D. Byrd, The Case for Confidential Adoption (1988), 46(4) Public-Welfare 20.
J. Goldstein, A. Freud A. Solnit, Before the Best Interests of the Child (1979).
Finally, it is impossible for this juvenile court judge to ignore his day-to-day lessons in the importance of a nurturing, effective, unitary family as the first line of defense in preventing child abuse, child neglect, delinquency, and incorrigibility. Certainly a traditional unitary family unit is not the only setting in which a child can flourish. But based upon the experiences of this work, a juvenile court judge should be the last judge to permit a legal intrusion into the Doe family under R.C. 3111.04(A). Considering Jane and John Doe's objection to questioning the paternity of their child and their strong desire to raise him as an integral part of their unitary family, it would be contrary to John Jr.'s best interest to allow Merkel's action to proceed.
Once again, if the facts of this case had been different, and Merkel had a meaningful relationship with John Jr., a different result might be reached in this case. Allowing Merkel to intrude into the Does' family under these circumstances would reach the same result that the Supreme Court has consistently tried to avoid in its history of protecting the sanctity of the unitary family.
V. CONCLUSION
For the foregoing reasons, the Does' motion to dismiss is granted. This matter is dismissed.
Cause dismissed.