dissenting.
Because I believe that the majority opinion avoids important legislative history and constitutional precedents, misconstrues the Uniform Parentage Act, and misapplies standing, I respectfully dissent.
1. Constitutional footings
Some functional family relationships, as well as formal family values, deserve and receive constitutional recognition and procedural due process:
The rights to conceive and to raise one’s children have been deemed “essential,” Meyer v. Nebraska, 262 U.S. 390, 399 [43 S.Ct. 625, 626, 67 L.Ed. 1042] (1923), “basic civil rights of man,” Skinner v. Oklahoma, 316 U.S. 535, 541 [62 S.Ct. 1110, 1113, 86 L.Ed. 1655] (1942), and “[r]ights far more precious ... than property rights,” May v. Anderson, 345 U.S. 528, 533 [73 S.Ct. 840, 843, 97 L.Ed. 1221] (1953). “-It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, 321 U.S. 158, 166 [64 S.Ct. 438, 442, 88 L.Ed. 645] (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, [262 U.S.], at 399 [43 S.Ct. at 626], the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, [316 U.S.], at 541 [62 S.Ct. at 1113], and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496 [85 S.Ct. 1678, 1688, 14 L.Ed.2d 510] (1965) (Goldberg, J., concurring).
Nor has the law refused to recognize those family relationships unlegitimized by a marriage ceremony_ Levy v. Louisiana, 391 U.S. 68, 71-72 [88 S.Ct. 1509, 1511, 20 L.Ed.2d 436] (1968). “To say that *379the test of equal protection should be the ‘legal’ rather than the biological relationship is to avoid the issue. For the Equal Protection Clause necessarily limits the authority of a State to draw such ‘legal’ lines as its chooses.” Gima v. American Guarantee Co., 391 U.S. 73, 75-76, 88 S.Ct. 1515, 1516, 20 L.Ed.2d 441 (1968).
Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551 (1972) (denial to unwed father of hearing on fitness, accorded to all other parents whose custody of their children is challenged by the State, constitutes a denial of equal protection of the laws).
These constitutional footings led directly to the design of the Uniform Parentage Act.
2. Uniform act
In the aftermath of Stanley v. Illinois, the National Conference of Commissioners on Uniform State Laws drafted and recommended the Uniform Parentage Act (U.P.A.) in 1973, “at a time when the states need new legislation on this subject because the bulk of current law on the subject of children born out of wedlock is either unconstitutional or subject to grave constitutional doubt.” Prefatory Note to Uniform Parentage Act, 9B U.L.A. 287 (1987).
[T]he substance of the Act ... is expressed in the first two sections. The remainder of the Act is largely concerned with the sine qua non of equal legal rights — the identification of the person against whom these rights may be asserted. In the context of the child born out of wedlock that person is the father....
In order to identify the father, the Act first sets up a network of presumptions which cover cases in which proof of external circumstances (in the simplest case, marriage between the mother and a man) indicate a particular man to be the probable father. While perhaps no one state now includes all these presumptions in its law, the presumptions are based on existing presumptions of “legitimacy” in state laws and do not represent a serious departure. Novel is that they have been collected under one roof. All presumptions of paternity are rebuttable in appropriate circumstances.
The ascertainment of paternity when no external circumstances presumptively point to a particular man as the father are the next major function of the Act. Noteworthy is the pre-trial procedure envisaged by the Act which, the Committee expects, will greatly reduce the current high cost and inefficiency of paternity litigation.
Prefatory Note, 9B U.L.A. at 289 (emphasis original). The Uniform Parentage Act was enacted by the North Dakota Legislature in 1975. 1975 N.D.Laws, ch. 130; NDCC ch. 14-17. As the Prefatory Note stresses, “the substance of the Act” is expressed, for this case, in NDCC 14-17-02: “The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.”
This legislative history,1 together with sections 26 and 29 of the recommended Act, indicates that the U.P.A. was intended to subordinate the presumptions about paternity in existing state law by collecting them “under one roof.” Also, NDCC 14-17-25 (U.P.A. 26) says:
Uniformity of application and construction. This chapter must be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.
See also Zuger v. North Dakota Ins. Guar. Ass’n, 494 N.W.2d 135, 138 (N.D.1992); NDCC 1-02-13 (uniform laws interpreted uniformly to effect purposes).
In section 29, the U.P.A. recommended repeal of any then existing parentage act. 9B U.L.A. at 344. However, the only statute expressly repealed by the 1975 North Dakota enactment was NDCC ch. 32-36, the 1922 Illegitimacy Act. 1975 N.D. Laws, ch. 130, § 28. The existing presumptions about paternity in NDCC 14-09-01, 14-09-02, and *38014-09-03, as well as in NDCC 31-11-02(4), derived from the Field Code and territorial law, were not directly displaced. See Revised Codes of the Territory of Dakota, Civil Code §§ 86, 87, and 88 (1877). Inexplicably, these old presumptions were not expressly repealed, even though they and related presumptions were now “collected under one roof.”
Without noticing or reconciling this legislative intention to replace the existing presumptions with rebuttable ones, the majority opinion makes them controlling over the remodeled ones “collected under one roof’ in the most recent enactment. See NDCC 1-02-09.1 (if amendments are irreconcilable, the latest enactment prevails). Therefore, I disagree with the majority’s construction of the U.P.A.. In my opinion, the prior presumptions should be reconciled with the latest enactment that makes all of the presumptions rebuttable.
If enactment of the U.P.A. in North Dakota did not implicitly repeal the prior presumptions in NDCC 14-09-01, 14-09-02, and 14-09-03 that were virtually indisputable, at least their remodeling under “one roof’ made them rebuttable. NDCC 14-17-04(2) directs that all presumptions now “may be rebutted in an appropriate action....”
S. More constitutional standing
After Stanley v. Illinois, the United States Supreme Court continued to develop the constitutional recognition of biological fathers. Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (statute allowing adoption of child born out of wedlock not violative of Due Process Clause where unwed father never legitimated the child and did not seek visitation rights until after adoption petition filed); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979) (statute giving right to unmarried mother, but not to unmarried father, to block adoption by withholding consent, violated Equal Protection Clause); Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (unwed father not entitled to notice of child’s adoption proceedings where father had not made prompt effort to establish a relationship with child).
Recently, in Adoption of K.A.S., 499 N.W.2d 558, 562 (N.D.1993), we recognized the “fundamental nature of a parent’s rights to nurture and rear his or her child”:
In examining the private interests at stake, the Lassiter [v. Dept. of Social Services of Durham County, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) ] Court underscored the fundamental nature of a parent’s rights to nurture and rear his or her child:
“This Court’s decisions have by now made plain beyond the need for multiple citation that a parent’s desire for and right to ‘the companionship, care, custody and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’ Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 [ (1972) ].” Lassiter, supra, 452 U.S. at 27, 101 S.Ct. at 2159-2160 [1981].
Later, Justice Brennan summarized the direction of the decisions:
[AJlthough an unwed father’s biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so. “When an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘com[ingJ forward to participate in the rearing of his child, ’ ... his interest in personal contact with his child acquires substantial protection under the Due Process Clause. At that point it may be said that he ‘act[s] as a father toward his children.’ ” Lehr v. Robertson, supra, [463 U.S.], at 261 [103 S.Ct., at 2993], quoting Caban v. Mohammed, supra [441 U.S.], at 392, 389 [99 S.Ct., at 1768, 1766 n. 7.] n. 7. This commitment is why Mr. Stanley and Mr. Caban won; why Mr. Quilloin and Mr. Lehr lost; and why Michael H. should prevail today. Michael H. is almost certainly Victoria D.’s natural father, has lived with her as her father, has contributed to her support, and has from the beginning sought to strengthen and maintain his relationship with her.
Michael H. v. Gerald D., 491 U.S. 110, 142-43, 109 S.Ct. 2333, 2352, 105 L.Ed.2d 91 *381(1989) (Justice Brennan, dissenting) (emphasis added) (footnote omitted). From the beginning in this case, by coming forward soon after the birth of Anna, Barry has demonstrated his commitment to his child and to participating in her parenting.
fy. Non-uniform amendments
In 1989, the North Dakota Legislature modified several provisions of our Uniform Parentage Act. 1989 N.D.Laws, ch. 148, §§ 29 through 34, and 36. Like a modification made by a few other states, although not recommended by the Uniform Commissioners (see 9B U.L.A., 1993 Cumulative Annual Pocket Part at 7-8), a sixth presumption was added to NDCC 14-17-04(1): “A man is presumed to be the natural father of a child if: ... (f) If genetic tests show that he is not excluded and the statistical probability of his parentage is ninety-five percent or higher.”
Additionally, these amendments expanded standing in subsection 2 of NDCC 14-17-05:
Any interested party may bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed under subdivision d [received into his home and openly held out as his child], e [written acknowledgement], or f [genetic test results ] of subsection 1 of section 14H7-04.
(emphasis shows amendment). Also, NDCC 14-17-10, 14-17-11, and 14-17-12 were amended to authorize genetic tests of other tissues besides blood.2
The majority opinion’s interpretation, that the genetic tests need to be in existence in order to bring suit, is plausible if we only consider the original design of the Uniform Parentage Act, and the context of NDCC 14-17-05 as enacted. In the context of the nonuniform amendments, however, and in the light of the constitutional problems, I believe that the majority’s construction is incorrect.
“The court may, and upon request of a party shall, require the child, mother, or alleged father to submit to genetic tests, including tests of blood or other tissues.” NDCC 14-17-10(1). While the U.P.A. may not require the trial court to order genetic testing after an initial adjudication of paternity, see In the Interest of the Minor Child M.Z., 472 N.W.2d 222 (N.D.1991), the showing of sexual intercourse between Kelly and Barry during the time of conception surely enables pretrial discovery. See NDCC 14-17-11(1). NDCC 14-17-12(3) directs: “If ... genetic tests have not been administered, the court shall require the parties to submit to genetic tests, if practicable.” Prior tests are not required by the non-uniform amendment.
5. Conflicting presumptions
The progress of science surpasses the capacity of jurisprudence to cope with change. *382Still, scientific advances in genetic testing have wholly alleviated the ancient problems of proof that shaped the traditional law of paternity. Pickett v. Brown, 462 U.S. 1, 17, 103 S.Ct. 2199, 2208, 76 L.Ed.2d 372 (1983); Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981).3 If the results of genetic testing show that Barry is not the biological father of Anna, this lawsuit is over, quickly and efficiently. If the tests show that Barry is the biological father, his rights and responsibilities in relationship to Anna will be determined under NDCC 14-17-14 of the Uniform Parentage Act in her best interests, not Barry’s.
Unlike the majority, I would interpret the ambiguous language of the Uniform Parentage Act broadly, not obstructively. “A presumption ... may be rebutted in an appropriate action....” NDCC 14-17-04(2). “Any interested person may bring an action at any time....” NDCC 14-17-05(2). Thus, the constitutional questions, that the majority close their eyes to, would really not be present.
We construe statutes to avoid constitutional questions. Walker v. Schneider, 477 N.W.2d 167, 172 (N.D.1991); In Interest of Goodwin, 366 N.W.2d 809, 814 (N.D.1985). The design of the U.P.A. makes it possible to do so here. We can statutorily recognize Barry’s standing, as an interested party, to establish his parental status as the genetic father of Anna, and to rebut Dean’s status presumed from a marriage selected by Kelly after conception but before Anna’s birth.
The Uniform Parentage Act directs that “[t]he parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.” NDCC 14-17-02 (emphasis added). Under the Act, the stronger of conflicting presumptions controls only the burden of persuasion, not standing to sue. “If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.” NDCC 14-17-04(2) (emphasis added). Under NDREv 301(a), a presumption only shifts the burden of proof to the party against whom it is directed. In Interest of B.G., 477 N.W.2d 819 (N.D.1991). See also Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225 (N.D.1993). NDREv 301, Explanatory Note, says: “[I]n all cases, presumptions are disputable and may be overcome by contrary evidence.” 4 The marriage presumption for Dean may outweigh the genetic presumption for Barry. But the U.P.A. directs that the weightier one be determined by the trial court “on the facts” considered with “policy and logic.” Thus, the presumptions control a claimant’s burden of proof, not a claimant’s standing to sue.
The doctrine of standing to sue stems from a judicial preference that a dispute be litigated by someone with a personal interest at stake. Black’s Law Dictionary 1405 (6th ed. 1990). The personal interest assures that the dispute will be fully and competently litigated. Barry’s biological claim is surely a personal interest sufficient for standing to sue. I believe, therefore, that the majority opinion misapplies the “standing to sue” doctrine when it rules that Barry does not have standing to bring this action.
6. Constitutional standing
The majority dodges the controlling set of opinions in Michael H. v. Gerald D., 491 U.S. *383110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), that recognize the constitutional standing of a biological father who comes forward promptly. The swing vote by Justice Stevens, concurring in the result of Justice Sca-lia’s plurality opinion, assumed “for the purpose of deciding this case that Michael’s relationship with [his biological daughter] is strong enough to give him a constitutional right to try to convince a trial judge that [her] best interest would be served by granting him visitation rights.” 491 U.S. at 133. Justice Stevens read the record differently than his colleagues, however, and was “satisfied ... that the California statute [a variation of the Uniform Parentage Act], as applied in this case, gave him that opportunity.” Id. Justice Stevens thus recognized that Michael H. had a constitutional right to a hearing to determine his parental rights.
Justice Brennan, in his dissent joined by Justices Blackmun and Marshall, described “the common ground shared by a majority of [the] Court”:
Five Members of the Court refuse to foreclose “the possibility that a natural father might ever have a constitutionally protected interest in his relationship with a child whose mother was married to, and cohabiting with, another man at the time of the child’s conception and birth.” Five Justices agree that the flaw inhering in a conclusive presumption that terminates a constitutionally protected interest without any hearing whatsoever is a procedural one. Four Members of the Court agree that Michael H. has a liberty interest in his relationship with Victoria, and one assumes for purposes of this ease that he does. In contrast, only one other Member of the Court fully endorses Justice Scalia’s view of the proper method of analyzing questions arising under the Due Process Clause.
491 U.S. at 136, 109 S.Ct. at 2349 (citations omitted) (emphasis original). Justice White, in his separate dissent joined by Justice Brennan, also confirmed the due process views of a majority of the Court:
Like JUSTICES BRENNAN, MARSHALL, BLACKMUN, and STEVENS, I do not agree with the plurality opinion’s conclusion that a natural father can never “have a constitutionally protected interest in his relationship with a child whose mother was married to, and cohabiting with, another man at the time of the child’s conception and birth.” Prior cases here have recognized the liberty interest of a father in his relationship with his child....
491 U.S. at 157, 109 S.Ct. at 2359 (citation omitted). Michael H. thus held that the Due Process Clause bars a conclusive procedural presumption that forecloses a biological father’s parental rights without any hearing whatsoever. I believe that Barry has constitutional standing to obtain a judicial determination of his parental rights.
7. Other precedents
Since Michael H. was decided, other jurisdictions with the Uniform Parentage Act have ruled that an unwed father has constitutional standing to sue to establish a parent-child relationship with his genetic offspring who was conceived before, and born after, marriage of the mother to another man. See Michael M. v. Giovanna F., 7 Cal.Rptr.2d 460, 5 Cal.App.4th 1272 (1992) (applied to bar suit by biological father of child conceived out of wedlock but born after mother married another, UPA’s standing provisions were infringement on his substantive due process rights); Kelly v. Cataldo, 488 N.W.2d 822 (Minn.App.), review denied (September 15, 1992) (remands claim by putative father of child conceived and born while mother was married to another, for joinder of child as party and for evaluation of competing statutory presumptions through consideration of child’s best interests); Matter of Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989) (best interests of child must be considered before choosing to use blood test evidence).
See also In Re J.W.T., 1993 WL 233448 (Tex.1993) (“[A] father’s interest in establishing a relationship with his biological child is constitutionally protected when accompanied by the father’s early and unqualified acceptance of parental duties.”); County of Orange v. Leslie B., 17 Cal.Rptr.2d 797, 14 Cal.App.4th 976 (1993) (affirming mother’s support judgment against natural father for daughter conceived and born while mother *384was married to another man); Adoption of Kelsey S., 1 Cal.4th 816, 4 Cal.Rptr.2d 615, 823 P.2d 1216 (1992) (to extent statute allows a mother to unilaterally prevent her child’s biological father from becoming presumed father, it violates equal protection guarantees; federal constitutional right to due process prohibits termination of an unwed father’s parental relationship through adoption without a hearing when he promptly came forward to demonstrate his full commitment to his parental responsibilities); C.C. v. A.B., 406 Mass. 679, 550 N.E.2d 365 (1990) (putative father should have opportunity to prove parental relationship with child conceived and born while mother married to another man).
R. McG. v. J.W., 200 Colo. 345, 615 P.2d 666, 671 (1980) held:
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 natural 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.
A concurring opinion “recognized the due process right of a natural father, absent a finding that he is unfit, to maintain a parental relationship with his children.” 615 P.2d at 673. These precedents strongly support Barry’s standing to sue to establish a parental relationship with Anna.
8. My Analysis
I believe that Barry has procedural standing to sue to establish his parental relationship.5 By exalting the role of a “father,” selected by the mother after conception, the majority allows the mother to negate the procedural rights of a biological father who is prompt, ready, and willing to participate in parenting his child. This perpetuates the gender stereotype that the male parent does not participate in parenting. “It is the policy of this state to prohibit discrimination on the basis of ... status with regard to mar-riage_” NDCC 14-02.4-01. As Justice Levine said in City of Mandan v. Fern, 501 N.W.2d 739, 744 (N.D.1993): “Gender discrimination ... impedes equal justice for men and women.” This is not a case where the mother is in an inherently different situation than the father. By making the marital presumption conclusive in this case, the majority allows the mother discretion to exclude the natural father at her whim by marrying someone else prior to birth. As Caban v. Mohammed clarified, 441 U.S. 380, 99 S.Ct. 1760, the female parent should no more be able to select the father after conception than to consent to adoption by wholly excluding the genetic father from the parental role.
Furthermore, the majority’s interpretation will allow the child, her mother, or the marriage-presumed father to sue Barry at any time for many years to establish his parental responsibility for support. See NDCC 14-17 — 05(l)(b) and 14-17-06; In Interest of K.B., 490 N.W.2d 715 (N.D.1992) (child, mother, and County Social Service Board not barred by 5-year limitation from suing biological father of thirteen-year old child born while mother married to another, but since divorced); Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983) (two year limitation denies illegitimate children equal protection of the law); Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988) (six-year limitation denies illegitimate children equal protection of the law); Moug*385ey v. Salzwedel, 401 N.W.2d 509 (N.D.1987) (after divorce, marriage-presumed father can sue genetically-presumed father for prior support of seven-year-old child in his home). The majority’s interpretation unequally denies Barry standing to establish his parental relationship and responsibilities even though he has sought to do so promptly.
I cannot join an opinion denying a putative father standing to promptly seek to foster his parental relationship, when it leaves him open to later face his parental duties, while excluding him from the most precious time of the child’s life. As Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, teaches by holding that a mother cannot block a father’s parental rights by consenting to an adoption without the father’s consent, there is a serious equal protection question when a ready, willing, and prompt father is denied an opportunity to establish his parental relationship.
Of course, if the trial court finds, as the majority opinion hints, that Kelly’s sexual encounter with Barry was not consensual, the court could properly refuse Barry any legal relationship with Anna. It is questionable whether a non-consensual conception merits legal recognition. “[A] mere biological connection is insufficient to establish a liberty interest on the part of an unwed father.” Michael H., 491 U.S. at 143, n. 2, 109 S.Ct. at 2352, n. 2. (Justice Brennan, dissenting). Also, if Barry is motivated by jealousy, not parental impulse, it is unlikely that Anna’s best interests merit his participation in her rearing. But those are factual matters to be determined at a trial, not summarily by judicial fiat. Procedural due process necessitates hearing and proof, not presumption and surmise.
A united family might often be more committed parents, but that is not invariably true, nor contemporary reality.6 I view this situation, if Barry prevails in his proof, as akin to one where a divorced parent retains visitation rights after the remarriage of his former partner. In this commonplace situation, the law has resolved that the best interests of the child in preserving biological bonds outweighs any threat to family integrity.
I join Justice Brennan’s view in saying that we should allow Barry a hearing to prove his paternity, while reserving our opinion about the ultimate state of affairs between Barry and Anna. “In order to change the current situation among these people, [Barry] first must convince a court that he is [Anna’s] father, and even if he is able to do this, he will be denied visitation rights if that would be in [Anna’s] best interests.... [A] determination that a State must afford procedures before it terminates a given right is not a prediction about the end result of those procedures.” Michael H., 491 U.S. at 156, 109 S.Ct. at 2359 (Justice Brennan, dissenting) (footnote omitted). Accordingly, I would affirm the trial court’s denial of summary judgment, and remand for blood tests, discovery, and, as NDCC 14-17-14(3) of the Uniform Parentage Act specifies, for determination of the best interests of Anna.
. Official commentary for a uniform act is legislative history. 2B Sutherland Stat. Const. § 52.05 (5th ed. 1992).
. Legislative history reflects that the amendments to authorize other genetic tests were mandated by Section 111(b) of the Federal Family Support Act of 1988, 42 U.S.C. 666(a)(5), as part of the conditions for obtaining federal matching funds to establish paternity and to enforce child support. An assistant attorney general and legal counsel for the North Dakota Department of Human Services elaborated:
THE BILL ALSO CREATES A PRESUMPTION OF PATERNITY WHEN GENETIC TESTS SHOW A VERY HIGH STATISTICAL PROBABILITY OF PARENTAGE. THE CREATION OF THIS PRESUMPTION IS NOT REQUIRED BY FEDERAL LAW....
SECTION 29 OF THE BILL ACTUALLY CREATES THE PRESUMPTION OF PATERNITY. THE PRESUMPTION WOULD ARISE IN CASES WHERE GENETIC TESTS SHOW THAT THE ALLEGED FATHER IS NOT EXCLUDED AS A FATHER, AND THAT THE STATISTICAL PROBABILITY OF HIS PARENTAGE IS 95 PERCENT OR HIGHER.
THE SCIENCE OF GENETIC TESTING HAS REACHED A HIGH DEGREE OF ACCURACY, AND CURRENT TEST RESULTS TYPICALLY WILL EITHER EXCLUDE AN ALLEGED FATHER OR PRODUCE A STATISTICAL PROBABILITY OF PARENTAGE IN EXCESS OF 95 PERCENT. THE REGIONAL CHILD SUPPORT ENFORCEMENT OFFICES, WHO ARE MOST ACTIVE IN THE PATERNITY ESTABLISHMENT ARENA, RECOMMENDED THE CREATION OF A PRESUMPTION OF PATERNITY WHEN SUCH TEST RESULTS ARE OBTAINED.
SECTION 30 OF THE BILL AMENDS EXISTING LAW IDENTIFYING PARTIES WHO CAN BRING PATERNITY ACTIONS. THIS CROSS-REFERENCE WOULD BE NECESSITATED BY THE AMENDMENT DESCRIBED IN SECTION 29.
Testimony by Blaine Nordwall at the hearing on March 10, 1989, for SB 2245 before the House Human Services and Veteran Affairs Committee.
. The application of blood tests to the issue of paternity results from certain properties of the human blood groups and types: (a) the blood group and type of any individual can be determined at birth or shortly thereafter; (b) the blood group and type of every individual remain constant throughout life; and (c) the blood groups and types are inherited in accordance with Mendel's laws.
Little v. Streater, 452 U.S. 1, 7, 101 S.Ct. 2202, 2206, 68 L.Ed.2d 627 (1981) (summarizing S. Schatkin, Disputed Paternity Proceedings § 5.03 (1975)). Furthermore:
"The result of the test is universally accepted by distinguished scientific and medical authority. There is, in fact, no living authority of repute, medical or legal, who may be cited adversely.... [TJhere is now ... practically universal and unanimous judicial willingness to give decisive and controlling evidentiary weight to a blood test exclusion of paternity.”
Ibid., quoting Schatkin, at § 9.13.
. NDREv 301(b) also directs: "If presumptions are inconsistent, the presumption applies that is founded upon weightier considerations of policy. If considerations of policy are of equal weight neither presumption applies.”
. I am puzzled by the failure of the majority opinion to squarely address due process standing. The Appellants’ brief argued from Justice Scalia's opinion on due process standing in Michael H. without recognizing its minority status on that question. The Appellee's brief at p. 8 squarely relied on Michael H. to assert Barry’s due process position that "the vast majority of the Court, in both concurring and dissenting opinions, held that ... the alleged 'natural' father had standing to bring such issues to the attention of the Court.” In my opinion, Barry’s due process standing was the central focus of this appeal, and Barry’s equal protection arguments to reinforce his constitutional standing were a suitable mode of argument.
In any event, in view of the myriad of permutations in factual settings and the difficult distinctions made in the majority opinion, I would expect that this court will be called upon to consider many more appeals on due process standing of a biological parent.
. According to Census Bureau figures, the proportion of American households consisting of a married couple and their own minor children has declined from 44.2% in 1960 to 27.0% in 1988.
Note, Looking For a Family Resemblance: The Limits of the Functional Approach to the Legal Definition of Family, 104 Harv.L.Rev. 1640, n. 1 (1991).
Unmarried fathers are not simply ones who can be categorized as absent or uncaring fathers. Clearly, there is an expanding population of unwed men who wish to play a role in the upbringing of their children. There also has been a renewed societal emphasis upon early establishment of paternity and vigorous enforcement of child support obligations {see the federal Child Support Enforcement Amendments of 1984 [P.L. 98-378], the Family Support Act of 1988 [P.L. 100-485], and the many subsequent state statutory enactments).
Prefatory Note, Uniform Putative and Unknown Fathers Act, 9B U.L.A., 1993 Cumulative Annual Pocket Part at 44.