No. 95-019
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995
IN THE MATTER OF THE PATERNITY
OF "ADAM," A Minor Child
" BOB, 'I
Petitioner and Appellant, SEP 9985
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and
"MARY" and "JOHN,"
Defendants and Respondents.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSELOF RECORD:
For Appellant:
Robert G. McCarthy; Hennessey, Joyce, McCarthy &
Wing, Butte, Montana
For Respondents:
John M. Morrison; Meloy & Morrison, Helena, Montana
Submitted on Briefs: May 25, 1995
Decided: September 29, 1995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
'(Bob I' appeals from an order of the Eighteenth Judicial
District Court, Gallatin County, concluding that it was not in
"Adam's," a minor child, best interest to declare paternity in
"Bob. II1 We affirm.
BACKGROUND
"Mary 0 and "John" moved to Bozeman together in 1990 to
establish a restaurant and bakery. At that time, Mary and John
lived together and their relationship was platonic. Mary met Bob
in a business context in 1991 and thereafter they began an intimate
relationship. Bob moved into Mary's and John's apartment in the
early months of 1992. In April 1992, Bob's and Mary's relationship
ended and Bob moved out of Mary's and John's apartment.
In late May of 1992, Mary learned that she was pregnant. In
June of 1992, Mary requested that Bob relinquish his parental
rights. Bob refused. Mary and John married on September 9, 1992.
On December 15, 1992, Bob filed what was titled a "Notice of Intent
to Claim Paternity" with the Clerk of Court for the Eighteenth
Judicial District, Gallatin County. Mary gave birth to Adam on
December 21, 1992. John was listed as Adam's father on the birth
certificate.
On January 5, 1993, Bob filed a petition in which he asserted
that he was Adam's biological father. Bob sought a determination
1 Pseudonyms have been used in place of the parties' actual
names.
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of Adam's paternity and a determination of child custody,
visitation, and child support obligations. The court appointed a
guardian ad litem to monitor Adam and report to the court on a
monthly basis. The parties agreed to submit the question of Bob's
standing for a pre-trial ruling. The court ruled that Bob did have
standing to challenge the presumption that John was the father
pursuant to § 40-6-107(l), MCA.
The District Court ordered blood drawn from Bob, John and Adam
to determine paternity. Mary and John opposed the order for blood
samples and sought a writ of supervisory control from this Court.
We denied the writ. Without waiving her right to object to a
judicial determination of the father/child relationship, Mary
stipulated that Bob was Adam's biological father.
After a bench trial, the court issued Findings of Fact and
Conclusions of Law in which it determined that it was not in Adam's
best interest to declare paternity in Bob and, thus, dismissed
Bob's petition. Mary and John raise numerous issues which we do
not address because they neither appealed nor cross-appealed. See
Rule 4, M.R.App.P. Bob's three issues are summarized as follows:
1. Whether the District Court erred when it used the best
interest of the child as the standard for determining whether
to make a judicial declaration of paternity.
2. Whether Mary is estopped from denying that Bob is the natural
father.
3. Whether the District Court erred in denying Bob's motion for
a continuance.
DISCUSSION
1. Whether the District Court erred when it used the best
interest of the child as the standard for determining whether
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to make a judicial declaration of paternity.
The District court recognized that Bob was, in all
probability, Adam's biological father. However, in its order
determining paternity, the District Court stated that "it is not in
[Adam's] best interest to determine paternity in [Bob]." In its
order denying Bob's motion to reconsider, the District Court stated
that "none of the arguments set forth in [Bob's] brief persuade the
court that a different decision would be in [Adam's] best
interest." Bob argues that the District Court erred in using the
"best interest of the child" standard and, for the first time on
appeal, that the District Court failed to consider his
constitutional rights to equal protection and due process in its
balancing of "conflicting presumptions of paternity and
legitimacy." We disagree.
This is a case of first impression in Montana. We therefore
look to other jurisdictions for guidance in applying the Uniform
Parentage Act (UPA). The District Court relied heavily on Lehr v.
Robertson (1983), 463 U.S. 248, 103 S.Ct 2985, 77 L.Ed.Zd 614.
Lehr was the putative father of a child born out of wedlock. The
mother married another man after the child was born. When the
child was about two years old, the husband was granted a decree of
adoption. Although he never supported the child or offered to
marry the child's mother, Lehr then filed an action to challenge
the adoption as violating his rights of due process and equal
protection. In rejecting Lehr's arguments, the United States
Supreme Court drew a distinction between a "developed parent-child
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relationship" as opposed to a "potential" relationship
When an unwed father demonstrates a full commitment to
the responsibilities of parenthood by "com[ing] forward
to participate in the rearing of his child," Caban, 441
U.S., at 392, his interest in personal contact with his
child acquires substantial protection under the Due
Process Clause. At that ooint it may be said that he
"act[sl as a father toward his children." Id. at 389,
n.7. But the mere existence of a biological link does
not merit eauivalent constitutional protection. The
actions of iudses neither create nor sever aenetic bonds.
" [Tlhe importance of the familial relationship, to the
individuals involved and to the society, stems from the
emotional attachments that derive from the intimacy of
daily association, and from the role it plays in
'promot[ing] a way of life' through the instruction of
children . . . as well as from the fact of blood
relationship." [Citations omitted; emphasis added.]
Lehr, 463 U.S. at 261. The Court then went on to explain that the
biological connection merely gives a natural father the opportunity
to become a "parent":
The 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. If he grasps that opportunity and accepts
some measure of responsibility for the child's future, he
may enjoy the blessings of the parent-child relationship
and make uniquely valuable contributions to the child's
development. If he fails to do so, the Federal
Constitution will not automatically compel a State to
listen to his opinion of where the child's best interests
lie.
Lehr, 463 U.S. at 262.
On December 15, 1992, prior to Adam's birth, Bob filed a
"Notice of Intent to Claim Paternity" with the Clerk of the
Eighteenth Judicial District Court. Section 40-6-105, MCA,
provides in relevant part:
A man is presumed to be the natural father of a child if:
(a) he and the child's natural mother are or have
been married to each other and the child is born during
the marriage or within 300 days after the marriage is
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terminated by death, annulment, declaration of
invalidity, or divorce or after a decree of separation is
entered by a court;
. . . .
Cd) while the child is under the age of majority,
he receives the child into his home and openly holds out
the child as his natural child; or
(e) he acknowledges his paternity of the child in
a writing filed with the department of health and
environmental sciences or with the district court of the
county where he resides, which court or department shall
promptly inform the mother of the filing of the
acknowledgment, and she does not dispute the
acknowledgment within a reasonable time after being
informed thereof, in a writing filed with the department
of health and environmental sciences or with the district
court of the county where the acknowledgment was filed.
If another man is presumed under this section to be the
child's father, acknowledgment may be effected only with
the written consent of the presumed father or after the
presumption has been rebutted.
(2) A presumption under this section may be
rebutted in an appropriate action bv a preponderance of
the evidence. [Emphasis added.]
In this case, subsections (a) and Cd) favor John as the
natural father. These presumptions in John's favor, however, are
rebutted by Mary's acknowledgment that Bob is the biological
father. See In re Marriage of Miller (1992), 251 Mont. 300, 825
P.2d 189, in which a statutory presumption of paternity was
rebutted when mother and husband acknowledged under oath that the
husband was not the natural father. In addition, subsection (e)
supports Bob's claim to paternity since he filed an acknowledgment
which the natural mother did not dispute.
Although the UPA utilizes a "best interest" standard in
certain contexts, it does not specifically establish that standard
for determining whether a court should declare the father/child
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relationship.* The court, therefore, based its decision on case
law from other states as well as LJPA guidelines which it
interpreted as promoting legitimacy.
The California Court of Appeals has held that even if a
putative father establishes his biological paternity to a child
conceived out of wedlock, but born after the mother married another
man, the nature of his relationship to the child is governed by the
best interest of the child. Michael M. v. Giovanna F. (Cal. Ct.
App. 1992), 7 Cal.Rptr.2d 460, 468.
The Washington Supreme Court has held that "[tlhe best
interest of the child standard does not entitle a court to presume
that paternity determination is automatically in the child's best
interest." McDaniels v. Carlson (Wash. 1987), 738 P.2d 254, 261.
The court in McDaniels set out factors to be considered when
determining whether a paternity determination is in the child's
best interest:
[Iln determining whether it is in the child's best
interest to allow a paternity action by one outside the
present family, the trial court should consider the
stability of the present home environment, the existence
* Section 40-6-130, MCA, provides that when a child is the
subject of an adoption proceeding, the court must determine whether
it will be in the best interest of the child to award custody to
the putative father. Since Adam is not the subject of an adoption
proceeding, this section is inapplicable. Section 40-6-114, MCA,
provides for a pretrial recommendation of whether judicial
determination of paternity would be in the best interest of the
child. If the recommendation is not accepted and the matter goes
to trial, the UPA does not provide a standard for resolution of the
paternity issue.
Section 40-6-116(3) (a), MCA, allows the judgment of the court
determining the existence or nonexistence of the parent/child
relationship to address such things as custody, visitation, bond
"or any other matter in the best interest of the child."
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or lack thereof of an ongoing family unit, the extent to
which uncertainty of parentage already exists in the
child's mind, and any factors which may be relevant in
assessing the potential benefits or detriment to the
child.
McDaniels, 738 P.2d at 262. A court must conclude that paternity
determination is in the child's best interest based on the facts in
the record. In re Marriage of Ross v. Austin (Kan. 1990), 783 P.2d
331, 339.
We agree with the District Court's analysis and adopt the
"best interest of the child" standard for deciding whether there
should be a judicial declaration of the father/child relationship
in a paternity dispute under Montana's UPA. In determining whether
paternity should be declared in Bob, the District Court considered:
the parties' relationships with each other, their lifestyles and
incomes; testimony from the parties, testimony from Adam's guardian
ad litem, and testimony from a social worker retained by Mary and
John. The District Court concluded that based on § 40-6-201, MCA,
there is a rebuttable presumption that a child born into wedlock is
legitimate. The court further considered the UPA's presumptions
that a man is the natural father of a child if the man is married
to the child's mother at the time of birth, 5 40-6-105(l) (a), MCA;
that there is a presumption of paternity when properly
acknowledged, S, 40-6-105(l) (e), MCA; and that these presumptions of
paternity are subject to rebuttal, § 40-6-105(2), MCA.
Through the mother's stipulation that Bob was Adam's father,
the statutory presumptions in favor of John as the biological
father were rebutted. However, as pointed out by the United States
Supreme Court in Lehr, that biological determination merely sets
the stage for the next question: Is it in the best interest of
Adam to judicially declare the father/child relationship and
thereby grant Bob the prerogatives of a parent? The probability
that Bob is the natural father, although a weighty factor in
applying the best interest analysis, is not the controlling
consideration in judicially determining the parent/child
relationship. As set forth above, the best interest analysis
requires the court to look beyond the biological ties. The court
must consider: the existence of a home environment; the stability
of the present home and family; the extent to which uncertainty of
parentage already exists in the child's mind; the efforts and
commitments (if any) that the putative father has taken to
establish supportive and financial ties with the child; as well as
any other factors which may be relevant in assessing the potential
benefits or detriments to the child.
In the present case, the District Court considered that Bob is
probably Adam's father, a fact essentially conceded by Mary.
Further, the court noted that Bob has had no contact with Adam and
has demonstrated no personal commitment to or responsibility for
Adam; nor has he taken steps to obtain suitable employment or
housing or to establish a child support fund. The District Court
weighed these facts against the stability of Mary's and John's
marital relationship, their care for Adam, and their financial
stability. The District Court noted that John's name appears on
Adam's birth certificate, that Adam has always lived with Mary and
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notice of the trial and the guardian ad litem had not revised her
report to the court. We disagree.
Bob did not subpoena the guardian ad litem, she therefore
proceeded with a planned vacation and was out of state at the time
of trial. By express agreement of both parties, she testified by
telephone. She testified that she relied "on common sense" and
that she had not seen Adam in seventeen months. She appears to
have made only limited efforts to monitor and report on Adam.
Given these facts, we hold that the District Court did not abuse
its discretion when it denied Bob's motion for an extension of time
so that the guardian ad litem could update her report. To conclude
on this issue, we note that the guardian ad litem did not appeal
the decision of the District Court.
Affirmed.
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