IN RE: the MARRIAGE OF REBECCA R. and David R. REBECCA R., Respondent, v. DAVID R., Appellant.
Family Code section 7540 establishes a conclusive presumption that the child of a wife cohabiting with her husband, who is not impotent or sterile, is a child of the marriage.1 Family Code section 7541 establishes an overriding presumption that requires the court to resolve the question of the husband's paternity based on blood tests when a proper motion is filed within two years of birth. Blood tests here established that the husband, David R., is not the biological father.
Nevertheless, the trial court, relying on the presumption of section 7540, ordered the husband to pay continuing child support for two children born during his marriage to Rebecca R. He appeals.
We hold that (1) the two-year limitation on filing motions for blood tests is not applicable to blood tests ordered by the court pursuant to section 7551; and (2) established due process principles require us to weigh the presumptions of sections 7540 and 7541 in the light of their purposes, and the private and state interests involved. Having weighed those interests here, we conclude that the strong social policy in preserving the ongoing father and child relationship supports the trial court's determination that David R. is the father of the two children. Accordingly, we affirm.
David R. and Rebecca R. were married in 1975 and cohabited until July 1992. Two children were born during the marriage. They are a son, born August 4, 1984, and a daughter born June 5, 1988. The birth certificates state that David R. is the father of the children.
Rebecca R. testified that, at the time the children were born, the biological father was Lee O.2 She claimed that both conceptions were pursuant to an agreement or understanding between her, her husband, and Mr. O.3
David R. denied any agreement and denied having any knowledge of the affair between Rebecca and Mr. O. until Rebecca told him, on March 11, 1993, that Mr. O. was the biological father of the children.4
Mr. O. testified that he had never talked to David R. about impregnating Rebecca R. He did talk to Rebecca R. and just believed that he was doing the couple a favor by impregnating her. He believed he was the biological father of both children. Although he was not asked about his relationship with the children, there is no evidence that he has acted as a father at any time since their birth, or that he has any desire to do so.
After a dissolution petition was filed in 1992, the paternity issue arose during mediation proceedings. The court ordered DNA testing, as recommended by the family mediator. The tests confirmed that David R. was not the biological father of the children.
Mr. R. testified that, since he believed the children were his own, he had treated them as his natural children since their birth. He believed that he had a good relationship with the children and they looked upon him as their father. He had visited the children a number of times after the parties separated. He testified that he would like to have “an ongoing honest relationship” with the children, and that he still loved and cared for them. At the time of the hearing, in June 1993, Mr. R. was current on child support payments.
THE PRESUMPTIONS OF SECTIONS 7540 AND 7541
Section 7540 provides: “Except as provided in Section 7541, the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.” (Emphasis added.)
“ ‘The principle established by [formed Evidence Code] section 621 [now section 7540] is of great antiquity, having been a maxim of the Roman law, which was copied by the common law․’ [Citation.] [¶] The conclusive presumption of legitimacy of [former Evidence Code] section 621, subdivision (a) is, of course, a rule of substantive law. [Citation.] It codifies the principle that when husband and wife are living together as such, the integrity of the family should not be impugned. ‘The husband is deemed responsible for his wife's child if it is conceived while they are cohabiting; he is the legal father and the issue of biological paternity is irrelevant.’ [Citation.] The rule promotes important social policies; preservation of the integrity of the family, protection of the welfare of children by avoiding the stigma of illegitimacy and keeping them off welfare rolls, and insurance of the stability of titles and inheritance․ [¶] The conclusive presumption of [former] Evidence Code section 621, subdivision (a) has consistently been upheld against constitutional attack despite the scientific advances that have increased the reliability of blood tests.” (Estate of Cornelious (1984) 35 Cal.3d 461, 464–465, 198 Cal.Rptr. 543, 674 P.2d 245.)
The trial court found section 7540 to be applicable, and it accordingly found that the two children are conclusively presumed to be the children of the marriage of David R. and Rebecca R. The trial court thus found that David R. is the legal father of the children, and that he is liable for continuing child support.
In 1980 and 1981, the Legislature amended former Evidence Code section 621 by adding subsections (b) through (g), inclusive. (Stats.1980, ch. 1310, § 1; Stats.1981, ch. 1180, § 1.) The current version of subsection (b) of those amendments, section 7541, subsection (a), states: “Notwithstanding Section 7540, if the court finds that the conclusions of all the experts, as disclosed by the evidence based on blood tests performed pursuant to Chapter 2 (commencing with section 7550), are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly.” (Emphasis added.)
“The presumption of legitimacy has also been the subject of much commentary and criticism. [Citations.] In apparent response to such commentary, the Legislature recently adopted limited exceptions which essentially take the form of a statute of limitations. In 1980 and 1981, it added subdivisions (b) through (g) to [former Evidence Code] section 621, which allow the mother or the presumed father within two years of the child's birth to present blood test evidence disputing the presumed paternity.” (Estate of Cornelious, supra, 35 Cal.3d 461, 465, 198 Cal.Rptr. 543, 674 P.2d 245; see, also, Keaton v. Keaton (1970) 7 Cal.App.3d 214, 216, 86 Cal.Rptr. 562.) The Cornelious opinion goes on to discuss a Stanford Law Review article that apparently influenced the Legislature to adopt the rule that certain blood test evidence prevails over the formerly conclusive presumption. (Cornelious, supra, at pp. 465–466, 198 Cal.Rptr. 543, 674 P.2d 245, quoting Hoffman, Recent Developments, California's Tangled Web: Blood Tests and the Conclusive Presumption of Legitimacy (1968) 20 Stan.L.Rev. 754.)
In 1953, the Legislature adopted the Uniform Act on Blood Tests to Determine Paternity.5 However, it did not adopt section 5 of the Uniform Act, which allows the use of blood tests to overcome the presumption of paternity, until 1980. (Stats.1980, ch. 1310, § 1; People v. Thompson (1979) 89 Cal.App.3d 193, 201–202, 152 Cal.Rptr. 478.) In adopting the substance of section 5 in 1980, the Legislature may have concluded that scientific advancements in test reliability justified adoption of the amendment. (12 Pacific L.J., Selected 1980 Legislation, pp. 369–370, citing Cramer v. Morrison (1979) 88 Cal.App.3d 873, 879–883, 153 Cal.Rptr. 865.) 6
In any event, the effect of the amendment is to allow the introduction of tests taken under that Act to determine paternity. Section 7541 thus authorizes the husband to challenge paternity based on blood test evidence in certain circumstances. If section 7541 were solely applicable, the question of paternity would, prima facie, be resolved by finding that the biological father, Mr. O., is the father of the two children, and is therefore responsible for their support.
Section 7541, subsection (b), states: “The notice of motion for blood tests under this section may be filed not later than two years from the child's date of birth by the husband․”
The two-year limitation apparently springs from the concluding recommendation in the Stanford Law Review Article: “The legislature should address itself squarely to the problem of defining a period after the birth of a child during which biological paternity will be determinative of a husband's duty to support his wife's child, and it should announce clearly that after this period has expired biological nonpaternity shall be irrelevant to the existence of this duty.” (Hoffman, Recent Developments, California's Tangled Web: Blood Tests and the Conclusive Presumption of Legitimacy, supra, 20 Stan.L.Rev. 754, 765.)
The effect of sections 7540 and 7541 is that “Genetic parenthood established by blood tests trumps a presumption based on the cohabitation of a married couple.” (In re Marriage of Moschetta (1994) 25 Cal.App.4th 1218, 1225, 30 Cal.Rptr.2d 893.) The Moschetta case also refers to the two-year provision as an exception to the “blood test override,” although that exception was not in issue in that case. (Ibid.) The exception is in issue here.
If the two-year provision applies here, Mr. R. would be unable to challenge the section 7540 presumption of paternity based on the overriding presumption of section 7541. Conversely, and disregarding the due process concerns discussed below, if the two-year provision is found to be inapplicable, the presumption of section 7541 would apply to resolve the paternity issue by the results of the blood tests. Since those tests show that Mr. O. is the biological father of the two children, his biological parenthood would be presumptively recognized, and Mr. R. would not be conclusively presumed to be their father. The parties therefore debate the applicability of the two-year provision to this case.
THE TWO–YEAR LIMITATION PERIOD OF SECTION 7541
In support of his contention that the two-year limitation period of section 7541, subsection (b) is inapplicable, Mr. R. cites County of Orange v. Leslie B. (1993) 14 Cal.App.4th 976, 17 Cal.Rptr.2d 797. In that case, the Orange County district attorney filed an action to establish paternity and to obtain support for Jennifer K. The complaint named Gregory Z. and Leslie B. as defendants. Gregory Z. was married to Jennifer's mother at the time Jennifer was conceived but blood tests established that Leslie B. was Jennifer's biological father. In defense of the action, Leslie B. sought to nullify the trial court's finding that he was the natural and legal father of Jennifer by relying on the presumption of former Evidence Code section 621. The court held that Leslie B. could not use former Evidence Code section 621 to protect himself from assuming any responsibility for the child he fathered. (Id., at p. 980, 17 Cal.Rptr.2d 797.)
Despite the fact that Leslie B. argued that the blood tests were irrelevant because they were performed more than two years after the child's birth, i.e., they were voluntarily taken 12 years after the birth of Jennifer, the court did not discuss the issue of whether the tests were untimely, noting only that Jennifer was already three years old when the limitation was enacted into law. (County of Orange v. Leslie B., supra, 14 Cal.App.4th 976, 980, fn. 3, 17 Cal.Rptr.2d 797.) The court then found the presumption inapplicable under the facts of that case. It therefore affirmed the trial court's finding that Leslie was the natural and legal father of Jennifer.
We agree with respondent that the case is not helpful to appellant because the court's finding that the presumption was inapplicable was not based on the two-year rule, but rather on more general considerations discussed below.
In a more persuasive argument, Mr. R. argues that section 7541, subsection (b), applies by its terms only to motions brought by the husband. He points out that he did not bring such a motion, and thus argues that the two-year limit on his right to do so is inapplicable. He also argues that the trial court can order blood testing at any time, without regard for the limitation imposed by subdivision (b).
Section 7541, subsection (a), refers to blood tests performed pursuant to section 7550 et seq. Those sections comprise the Uniform Act on Blood Tests to Determine Paternity. (§ 7550.)
Section 7551 specifically provides: “In a civil action or proceeding in which paternity is a relevant fact, the court may upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved, and shall upon motion of any party to the action or proceeding made at a time so as not to delay the proceedings unduly, order the mother, child, and alleged father to submit to blood tests. If a party refuses to submit to the tests, the court may resolve the question of paternity against that party or enforce its order if the rights of others and the interests of justice so require. A party's refusal to submit to the tests is admissible in evidence in any proceeding to determine paternity.”
Appellant cites no case discussing the differences between sections 7541 and 7551, or their predecessor sections. (Cf. § 7611 and 7612.) However, we agree with appellant that proper harmonization of these sections requires us to limit section 7541 to its terms, i.e., to apply it only to motions brought by the husband.
Respondent contends that section 7551 applies, by its terms, only when paternity is a relevant fact. She argues that paternity is not a relevant fact after the two-year period has passed, because the conclusive presumption of section 7540 applies.
We agree with Mr. R. that the argument is essentially circular: respondent argues that paternity is not a relevant fact because the two-year limitation period applies and that the two-year limitation period applies because paternity is not a relevant fact.
In view of our conclusion that section 7541, subsection (b) is inapplicable, we do not need to discuss the other grounds for inapplicability raised by Mr. R.
Section 7541, subsection (a), is the governing section here. Except for due process concerns it would prevail over the presumption of section 7540. We therefore proceed to examine the constitutionality of section 7541.
CONSTITUTIONALITY OF SECTION 7541
If, as we have found, the two-year limitation of section 7541, subsection (b), is inapplicable to blood tests ordered under section 7551, the presumption of section 7541 would override the presumption of section 7540. Section 7541, subsection (a), would then resolve the paternity issue by finding Mr. O. to be the father of the children. The issue thus becomes whether such an application of the presumption stated in section 7541, subsection (a), violates due process in the circumstances presented here.
Section 7541, subsection (a), states a rule of substantive law requiring the trial court to find paternity based on the results of the blood tests. Similar mandated results have been the subject of a number of cases arising under section 7540. Those principles are applicable in determining the constitutionality of section 7541.7
In Michael H. v. Gerald D. (1989) 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91, the Supreme Court considered the constitutionality of former Evidence Code section 621. In that case, Michael H. attempted to establish his paternity of a child born during the marriage of the mother and Gerald D. Gerald D. defended by invoking the presumption of former Evidence Code section 621. Michael H. attacked the constitutionality of section 621. The court first rejected his procedural due process claim, saying: “While § 621 is phrased in terms of a presumption, that rule of evidence is the implementation of a substantive rule of law. California declares it to be, except in limited circumstances, irrelevant for paternity purposes whether a child conceived during, and born into, an existing marriage was begotten by someone other than the husband and had a prior relationship with him.” (Michael H., supra, at p. 119, 109 S.Ct. at 2340.) The court then proceeded to the substantive due process issue, i.e., the question of whether Michael had a constitutionally protected liberty interest in his relationship with the child. The court found no such interest, noting that the presumption of legitimacy was fundamental to our law, and the presumption acted against his claim.
The court cited Lehr v. Robertson (1983) 463 U.S. 248, 262, 103 S.Ct. 2985, 2993, 77 L.Ed.2d 614: “[t]he significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring.” (Michael H. v. Gerald D., supra, 491 U.S. 110, 128, 109 S.Ct. 2333, 2345, 105 L.Ed.2d 91.) “Where, however, the child is born into an extant marital family, the natural father's unique opportunity conflicts with the similarly unique opportunity of the husband of the marriage; and it is not unconstitutional for the State to give categorical preference to the latter.” (Id., at p. 129, 109 S.Ct. at 2345.) The court found that California has given such a preference to the husband of the marriage: “It 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 pp. 129–130, 109 S.Ct. at 2345.)
In the earlier case of In re Lisa R. (1975) 13 Cal.3d 636, 119 Cal.Rptr. 475, 532 P.2d 123, our Supreme Court considered the due process issue and allowed Victor R. to introduce evidence that he was the natural father of Lisa R., despite the presumption that the child of a married woman is the child of the marriage. The court adopted a balancing test: “The question whether appellant, as one claiming to be Lisa's natural father, can rebut the presumption that Lisa is the issue of her mother's marriage must thus be resolved by weighing the competing private and state interests.” (Id., at p. 648, 119 Cal.Rptr. 475, 532 P.2d 123.)
The private interests of Victor R. the alleged biological father, were then examined and weighed against the countervailing interests of the state in Lisa's welfare. In that case, Victor R. had resided with Lisa's mother as a family unit for four or five months, he had contributed to Lisa's support, and he was deprived of custody by the actions of Lisa's mother. He consistently sought to assert his rights as Lisa's father.
The state's interests in Lisa's welfare, in relieving the stigma of illegitimacy, and in promoting marriage were considered in support of the presumption. However, our Supreme Court found that the interests of Victor R. prevailed, and the presumption was found to be a denial of due process. (See, generally, Wheeler, A Father's Right to Know His Child: Can It Be Denied Simply Because The Mother Married Another Man? (1987) 20 Loyola L.A. L.Rev. 705.)
In the more recent case of Johnson v. Calvert (1993) 5 Cal.4th 84, 19 Cal.Rptr.2d 494, 851 P.2d 776, our Supreme Court discussed Michael H. v. Gerald D. in a surrogacy case. It characterized the case as holding that “a plurality of the court held that a state may constitutionally deny a man parental rights with respect to a child he fathered during a liaison with the wife of another man, since it is the marital family that traditionally has been accorded a protected liberty interest, as reflected in the historic presumption of legitimacy of a child born into such a family.” (Id., at p. 99, 19 Cal.Rptr.2d 494, 851 P.2d 776.) Of course, the interests of a surrogate mother have not been traditionally protected, and the court found the case more supportive of the claim of the married couple who sought a surrogate in order to have a child. (Ibid.)
A number of appellate court decisions have considered the due process issue. The most recent case is Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 39 Cal.Rptr.2d 535. In that case, two men claimed to be the father of Michael. Matthew S., husband of the mother and biological father of the child, claimed that the trial court erred in refusing to apply the presumption of former Evidence Code section 621. However, he failed to establish the cohabitation element of that section, and thus the presumption was inapplicable. Even though Matthew S. was the biological father, the other man had acted as Michael's father. The court held that “[g]iven the strong social policy in favor of preserving the ongoing father and child relationship, the trial court did not err in finding that the conflict between the presumptions weighed in favor of Steven.” (Id., at p. 1117, 39 Cal.Rptr.2d 535.)
In Alicia R. v. Timothy M. (1994) 29 Cal.App.4th 1232, 34 Cal.Rptr.2d 868, Timothy M. was proven to be the biological father of Lindsay by scientific testing. When ordered to pay child support, he defended by asserting the presumption that Lindsay was the child of the marriage of her mother and Peter S. The trial court refused to apply the presumption, based on the balancing test stated in Lisa R. The appellate court affirmed, noting that the marriage of Peter S. and Lindsay's mother had been dissolved with a court finding that there were no children of that marriage. There was, therefore, no family unit, and no parental relationship between Peter S. and Lindsay. Accordingly, the appellate court approved the trial court's disregard of the presumption.
The court in Alicia R. relied on the earlier case of County of Orange v. Leslie B., supra, 14 Cal.App.4th 976, 17 Cal.Rptr.2d 797. In that case, the district attorney filed an action on behalf of Jennifer K. against two men to establish paternity and to provide support. Gregory Z. was the husband of Jennifer's mother when Jennifer was conceived, and Leslie B. was the mother's boyfriend at the time Jennifer was conceived. Leslie B. was found to be the natural father and he appealed the trial court's refusal to apply the presumption of former Evidence Code section 621. The appellate court said: “Although the presumption contained in [Evidence Code] section 621 is ‘conclusive,’ courts have refused to apply it when its underlying policies are not furthered. [Citations.] Traditionally, it was stated that the presumption was designed to preserve the integrity of the family unit, protect children from the legal and social stigma of illegitimacy, and promote individual rather than state responsibility for child support. [Citations.] None of these policies would be furthered by application of the presumption to the facts at hand and the trial court properly refused to apply it.” (County of Orange, supra, at p. 980, 17 Cal.Rptr.2d 797.) Specifically, the court held that the presumption could not be applied by a defendant to protect himself from assuming responsibility for the child he fathered. The court then applied the balancing test of Lisa R. and held Leslie B. to be the father of Jennifer.
In this case, the presumption of section 7540 is overridden by the presumption of section 7541. Under section 7541, the husband is presumed not to be the father of the child if the blood tests demonstrate that he is not the biological father. Mr. R. relies on this presumption in order to establish that he is not the father of the boy and girl. We agree with the County of Orange holding that the presumption of section 7541 cannot be so used.
More generally, we hold that the presumption of section 7541, like the presumption of section 7540, must be interpreted in accordance with the policies it seeks to carry out.
As discussed above, section 7541 was apparently intended to allow the presumed father to dispute the presumption of legitimacy while the child is very young. (Estate of Cornelious, supra, 35 Cal.3d 461, 465–466, 198 Cal.Rptr. 543, 674 P.2d 245 quoting Hoffman, Recent Developments, California's Tangled Web: Blood Tests and the Conclusive Presumption of Legitimacy, supra, 20 Stan.L.Rev. 754.) As the child grows, however, “the familial relationship between the child and the man purporting to be the child's father is considerably more palpable than the biological relationship of actual paternity. A man who has lived with a child, treating it as his son or daughter, has developed a relationship with the child that should not be lightly dissolved and upon which liability for continued responsibility to the child might be predicated. This social relationship is much more important, to the child at least, than a biological relationship of actual paternity.” (Ibid.) Thus, as the Stanford Law Review article makes clear, section 7541 was intended to allow the father to assert the biological relationship while the child is young, while preventing him from doing so after he has developed a parental relationship with the child. (Hoffman, Recent Developments, California's Tangled Web: Blood Tests and the Conclusive Presumption of Legitimacy, supra, 20 Stan.L.Rev. 754, 760–765.)
Here, the presumptive father, Mr. R., has had a parent/child relationship with the children for their entire lives. He testified at trial that he was acting under the belief that they were his natural children. He also testified that he wanted to continue that relationship, despite the trauma caused him by the actions and deceit of his former wife. Nevertheless, he pursues this appeal to avoid being designated the father, and he seeks to shift his child support obligations to the biological father by applying the presumption of section 7541. We hold he may not do so because he has no protectible interest in severing the parent/child relationship.
The interests of the state, on the other hand, are to protect children from the legal and social stigma of illegitimacy, to promote individual rather than state responsibility for child support, and to preserve the integrity of the family. Although David R. argues that there is no longer a family unit to preserve, there is an existing parent/child relationship, and a strong social policy in favor of preserving that ongoing relationship. (Steven W. v. Matthew S., supra, 33 Cal.App.4th 1108, 1117, 39 Cal.Rptr.2d 535.) The interest of the state in the welfare of the children, in promoting marriage and not undermining the family unit would not be served by allowing Mr. R. to end his parent/child relationship with these minors.
In this case, the biological father has asserted no interests. The biological father, Mr. O., did nothing more for the children than provide the sperm necessary to conceive them. He has never acted as a parent, he has never established a parent/child relationship with the children, and he apparently has no desire to do so. No social purpose would be served by elevating his interests as the biological father over the interests of the only father these children have ever known. The policies underlying the presumption of section 7541 would not be promoted by applying it to declare the biological father of the children to be their natural father. (Estate of Cornelious, supra, 35 Cal.3d 461, 467, 198 Cal.Rptr. 543, 674 P.2d 245; Michelle W. v. Ronald W. (1985) 39 Cal.3d 354, 360–363, 216 Cal.Rptr. 748, 703 P.2d 88.)
To the contrary, there is a strong social policy in preserving ongoing parent/child relationships. (Steven W. v. Matthew S., supra, 33 Cal.App.4th 1108, 1117, 39 Cal.Rptr.2d 535.) The presumption of section 7540 has traditionally been the means of achieving the legislative goal of preserving parent/child relationships against attack from biological fathers. Although the legislature has decided to override the presumption of section 7540 in limited circumstances when blood test evidence is properly presented, it has not abandoned the goal of protecting existing parent/child relationships.
Thus despite the language of section 7541, we hold that due process constraints prevent it from overriding the presumption of section 7540 in this situation. Accordingly, the trial court correctly concluded that the presumption of section 7540 should prevail.
“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. We are not aware of a single case, old or new, that has done so.” (Michael H. v. Gerald D., supra, 491 U.S. 110, 127, 109 S.Ct. 2333, 2344, 105 L.Ed.2d 91.)
Regardless of anything we say, the historical fact is that Mr. R. has been the only father these children have ever known. Even if he was deceived and tricked into assuming this role, he is, in fact, their father. Under the circumstances, here, the fact that another man was the children's biological father is irrelevant. We therefore find that Mr. R. is the legal father of the children.
The judgment is affirmed.
1. The trial court, acting in July 1993, applied former Evidence Code section 621. Effective January 1, 1994, the substance of that section was readopted as Family Code sections 7540 and 7541. Since differences between the sections are not material, we will refer to the current statutes. Accordingly, all statutory references are to the Family Code unless otherwise indicated.
2. Mrs. R. also admitted having two abortions during the marriage. She testified that another man, not her husband nor Mr. O., impregnated her for the aborted babies.
3. The trial court disbelieved this testimony.
4. In a reversal of the arguments we might expect, Mrs. R. testified that Mr. R. was unable to have children, while Mr. R. asserted he could. He thus did not contend that section 7540 did not apply because he was an impotent or sterile husband.
5. The Uniform Act is now found in section 7550 et seq.
6. In 1975, the Legislature adopted the Uniform Parentage Act. The provisions of this act are now found in section 7600 et seq. See, particularly, sections 7611 and 7612.
7. Since sections 7540 and 7541 were part of former Evidence Code section 621 at the time the leading cases under section 621 were decided, those cases are direct authority for interpretation of sections 7540 and 7541.
HOLLENHORST, Associate Justice.
RAMIREZ, P.J., and McKINSTER, J., concur.