Skip to main content


Reset A A Font size: Print

Court of Appeal, Fourth District, Division 1, California.

MICHELLE MARIE W., a Minor, etc., et al., Plaintiffs and Appellants, v. RONALD W. et al., Defendants and Respondents.

Civ. 24972.

Decided: January 10, 1983

Sheela, Lightner & Castro, Bruce M. Beals and Kimberly J. Grove, San Diego, for plaintiffs and appellants. Latham & Watkins and Lance B. Wickman, Los Angeles, for defendants and respondents.

Donald R. and Michelle Marie W., a minor, by and through her guardian ad litem, sued Ronald W., alleging Donald R. is Michelle's natural father and seeking a declaration of his paternity.   Judith R., Michelle's mother, was joined as a nominal defendant.   Summary judgment was granted in favor of defendants under Evidence Code section 621.   The plaintiffs appeal.

Judith R. and Ronald W. were married in 1965 and lived together continuously for more than 13 years before separating in 1978.   Judith gave birth to Michelle on October 25, 1974.   Judith and Ronald W. were living together at the time of Michelle's birth and Ronald W. was neither impotent nor sterile.   The marriage was dissolved by final judgment entered September 4, 1979.

Beginning in September 1973 and continuing through the final six years of Judith's marriage to Ronald W., Judith and Donald R. regularly engaged in sexual relations.   By declaration, Judith said Michelle was conceived during her relations with Donald R. and he is Michelle's natural father.   In 1980, Donald R. and Judith were married.   Michelle lives with Donald R. as provided for by the 1979 dissolution order granting Judith custody of Michelle.   The order also grants Ronald W. visitation rights, which he has exercised regularly since the divorce.

 Michelle's guardian ad litem and Donald R. seek declaratory relief establishing a father-child relationship between Donald R. and Michelle.   Plaintiffs moved for an order requiring blood tests of the parties to prove paternity.   The motion was never granted as the superior court granted defendants summary judgment under Evidence Code section 621.   Section 621 states “the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.”   The presumption may be rebutted by blood tests showing the husband is not the father of the child but only the husband or the mother may request the blood tests.   The plaintiffs here are not allowed to present the blood test evidence and thus, as to them, the presumption is irrebuttable.   Plaintiffs do not deny section 621 applies here nor do they contest the presumption, if valid, justifies summary judgment.   They claim, however, section 621, as applied here, violates the equal protection and due process clauses of the United States Constitution.1

Before discussing the merits of the due process and equal protection claims, we address Ronald W.'s statute of limitations defense.   Under section 621, an action by the mother or presumed father of the child to rebut the presumption of legitimacy must be brought within the first two years of the child's life.   As Michelle was over six years old when this action was brought, Ronald W. argues the presumption is conclusive as to all parties and thus the statute's failure to grant Michelle standing to rebut the presumption is irrelevant.   This argument misses the point.   If section 621 granted Michelle standing to rebut the presumption and imposed a two-year period of limitations on such an action, the statute might not violate the Constitution.   However, the statute does not allow Michelle to present rebuttal evidence at any time.   The same constitutional issues would be present if this case had been brought within the first two years of Michelle's life.   We may not rewrite section 621 to grant Michelle standing but impose the statute of limitations (Marsh v. Supervisors (1896) 111 Cal. 368, 372–373, 43 P. 975);  the statute must stand or fall as written.   The inability of parties other than the plaintiffs to bring this action due to the statute of limitations is irrelevant.

Michelle's due process argument is based on Vlandis v. Kline (1973) 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63, which holds irrebuttable presumptions violate the due process clauses of the Fifth and Fourteenth Amendments where there are more reliable methods for determining the truth of the presumed fact than simply presuming it to be true.   Such is the case here.   Ronald W. is conclusively presumed to be Michelle's father and yet the truth of his paternity could be more accurately determined by the introduction of blood test evidence.  (See Evid.Code, § 895;  Cramer v. Morrison (1979) 88 Cal.App.3d 873, 153 Cal.Rptr. 865.)   However, the availability of evidence to show the presumed fact does not necessarily follow from the proven fact is not enough to establish the presumption violates due process because the presumption is more than a procedural device.   The presumption of legitimacy is a substantive rule of law enacted to further public policy rather than to insure an accurate determination of paternity (Kusior v. Silver (1970) 54 Cal.2d 603, 619, 7 Cal.Rptr. 129, 354 P.2d 657;  In re Marriage of B. (1981) 124 Cal.App.3d 524, 528, 177 Cal.Rptr. 429).   Therefore, we must examine the policies behind section 621 to determine if those policies are furthered by application of the presumption here (In re Lisa R. (1975) 13 Cal.3d 636, 650, 119 Cal.Rptr. 475, 532 P.2d 123, cert. den. 421 U.S. 1014, 95 S.Ct. 2421, 44 L.Ed.2d 682, rehg. den. 423 U.S. 885, 96 S.Ct. 159, 46 L.Ed.2d 116).

The purposes underlying the presumption of legitimacy are protection of the integrity of the family unit, protection of the child from the stigma of illegitimacy and provision of private support for the child (County of San Diego v. Brown (1978) 80 Cal.App.3d 297, 303, 145 Cal.Rptr. 483).   The furtherance of these policies is a legitimate legislative purpose.   However, as in In re Lisa R., supra, 13 Cal.3d 636, 119 Cal.Rptr. 475, 532 P.2d 123, those policies are not furthered by applying the presumption in this case.

 In In re Lisa R., a natural father was denied the opportunity to offer evidence of his paternity by section 661 (repealed in 1975), which created a conclusive presumption of legitimacy of a child born to a married woman.   The defendants there argued the presumption was supported by the same policies asserted by defendants here.   The California Supreme Court rejected the argument and found application of the presumption was a denial of due process because, under the facts of that case, the presumption did not achieve any of its objectives:  (1) no family unit was promoted because there was no longer any such unit existing (the mother and presumed father of the child had both died);  (2) there was no danger of a stigma of illegitimacy because a natural father seeking to establish his paternity would undoubtedly legitimatize the child;  and (3) the presumption did not insure provision of support for the child, but, to the contrary, prohibited the natural father from voluntarily assuming the support obligation.   The facts here are close to those of In re Lisa R.   There is no family unit to protect because Judith and Ronald W. are now divorced.   Although in some cases a family unit involving a parent and the child might survive a divorce and warrant protection from a paternity claim by a third party, that is not the case here.   Recognizing Donald R. as Michelle's natural father will not only disrupt no marriage but will also promote the parent-child relationship which now exists as Donald R. occupies the father role in Michelle's home.   As to the legitimacy and support purposes, these factors relate to protection of the child and thus do not justify prohibiting an action brought on behalf of the child herself.   Furthermore, in this case there is no danger of illegitimacy or nonsupport as the man Michelle asserts is her natural father has voluntarily assumed the father role in her home.   Application of an irrebutable presumption of legitimacy here violates due process because it is not an appropriate means for achieving the intended ends of the legislation;  none of the purposes of the presumption are achieved by its application here.

Several recent cases have found the application of a conclusive presumption of legitimacy is not a violation of due process (Ferguson v. Ferguson (1981) 126 Cal.App.3d 744, 179 Cal.Rptr. 108;  In re Marriage of B., supra, 124 Cal.App.3d 524, 177 Cal.Rptr. 429;  County of San Diego v. Brown, supra, 80 Cal.App.3d 297, 145 Cal.Rptr. 483).   We find no fault with the reasoning of those decisions but instead deal with facts not involved in those cases.   In Brown and Marriage of B., presumed fathers were being sued to enforce their support obligations;  applications of the presumption of legitimacy furthered the policy of insuring private support for the children.   In Ferguson, the alleged putative father denied his paternity and the court could not assume he would voluntarily legitimatize the child, as is the case here.   The constitutional flaw in section 621 does not appear on its face but rather in its application in those cases where, as here, it does not further its underlying policies.

 Denying Michelle the opportunity to rebut the presumption Ronald W. is her natural father also violates her rights under the equal protection clause.   Whenever a statute distinguishes between two classes of people and deprives one of the classes of a fundamental right, it is constitutional only if it is necessary in order to further a compelling state interest (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 17, 112 Cal.Rptr. 786, 520 P.2d 10;  In re Terry D. (1978) 83 Cal.App.3d 890, 895, 148 Cal.Rptr. 221).  Section 621 allows mothers and presumed fathers to rebut the presumption of legitimacy but denies that opportunity to the child.   This distinction deprives one of the classes whose interest is at stake, the children, of a fundamental right.   The right of a child to establish a relationship with a parent “is the most fundamental right a child possesses [and can] be equated in importance with personal liberty and the most basic of constitutional rights.”  (Ruddock v. Ohls (1979) 91 Cal.App.3d 271, 277–278, 154 Cal.Rptr. 87.)   Therefore, section 621 violates the equal protection clause unless it can withstand the test of strict scrutiny.   As we have already pointed out, under the facts of this case, no state interest is served by application of the presumption of legitimacy here.   It follows the presumption is not necessary to further a compelling state purpose.   As applied in this case, section 621 deprives Michelle of equal protection under the law.

As we stated above, we do not hold a child cannot be conclusively presumed legitimate in any case.   Nor do we hold the right to rebut such a presumption cannot be made subject to a statute of limitations;  other policies not discussed here support the imposition of a limitation.  (See In re Marriage of B., supra, 124 Cal.App.3d 524, 532, 177 Cal.Rptr. 429.)   However, where, as here, the presumption denies the child all rights to establish a relationship with a natural parent and does not protect the integrity of a family unit or the best interests of the child, it violates both the equal protection and due process clauses of the United States Constitution.

The judgment is reversed.


1.   Our constitutional review of section 621 focuses on its validity in the context of a paternity claim by the child.   It should be noted, however, section 621 also denies the putative father standing to challenge the presumption of legitimacy and this also raises serious constitutional questions.  (See R. McG. v. J.W. (1980) 44 Colo.App. 446, 615 P.2d 666.)   We do not address those questions only because our analysis of Michelle's rights disposes of the case.

GERALD BROWN, Presiding Judge.

COLOGNE and WORK, JJ., concur.

Copied to clipboard