Michael H. v. Gerald D.


Female was married to male I but had an affair with male II.  Female gave birth to a child, which was later shown to be the biological son of male II.  The child had lived with male I and female for quite some time in California.  Male II wanted to assert his rights as the father, but California law has an assumption that the husband and wife (male I and female) are the parents – only a husband or wife can refute the notion that the child isn’t theirs under the law and are entitled to a paternity test.  Therefore, Male II is not entitled to refute paternity and does not have the right to a paternity test because he is not married to female.


Whether a biological father has a constitutional right to assert his status as the father with parental rights.


No, the father has no right under law.  Due process protections activities or rights rooted in traditions and within the conscience of our society.  The liberty interest must be fundamental and rooted in history.  History and tradition do not give parent rights to people like male II.  History has protected the family in marriage, particularly against the type of claims asserted by male II.  Male II must meet the burden of showing that under substantive due process analysis, history and tradition have afforded him parental rights.  Under the analysis, history and tradition have not afforded him such rights.  There is not a single case which grants the biological father such as male II parental rights and treats his liberty interest as both fundamental or historically recognized.

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