A v. X

ROONEY, Justice. Appellant-plaintiff (hereinafter referred to as A) brought this action to establish his paternity to appellee-defendant X (hereinafter referred to as child). In early November 1979, A and appellee-defendant Y (hereinafter referred to as mother) engaged in sexual intercourse. On February 8, 1980, mother and appellee-defendant Z (hereinafter referred to as Z) were married. On August 3, 1980, mother gave birth to child. The trial court held that A lacked standing to bring this action. A appeals from the order dismissing his amended complaint with prejudice. A guardian ad litem was appointed for the child. We affirm. A alleged in his amended complaint that he is the biological father of child; that Z is the presumptive father of child; that child will have needs; that A has financial means to provide for child’s needs; and that he desires to do so. Such allegations are taken to be true for the purposes of this action. In his prayer, A requests that he be declared the father of child; that child’s birth records be changed to strike Z’s name therefrom and to reflect A as child’s father; and that A be given visitation rights and an obligation to support child. I At common law, a biological father could not bring an action for paternity. Blanton v. Warn, Wyo., 444 P.2d 325 (1968). He has only those rights conferred by statute. In recognition of such, A recited that this action was brought pursuant to §§ 14-2-101 through 14-2-120, W.S.1977. Section 14-2-104, W.S.1977, designates those entitled to bring a paternity action. It authorizes such action only in three instances: “(a) A child, his natural mother or a man presumed to be his father under W.S. 14-2-102(a)(i), (ii) or (iii) may bring action: [1223] “(i) At any time for the purpose of declaring the existence of the father and child relationship presumed under W.S. 14-2-102(a)(i), (ii) or (iii); or “(ii) For the purpose of declaring the nonexistence of the father and child relationship presumed under W.S. 14-2-102(a)(i), (ii) or (iii) only if the action is brought within a reasonable time after obtaining knowledge of relevant facts, but in no event later than five (5) years after the child’s birth. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action if he has been made a party. “(b) 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 W.S. 14-2-102(a)(iv). “(c) An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under W.S. 14-2-102 may be brought by the child, the department of health and social services, the mother or personal representative of the child, the personal representative or a parent of the mother if the mother has died or is a minor, a man alleged or alleging himself to be the father, or the personal representative or a parent of the alleged father if the alleged father has died or is a minor.” A cannot qualify to bring the action under any of the three instances. He is not a presumed father under § 14-2-102(a)(i)(ii) or (iii), W.S.1977, inasmuch as he was not married to the mother when the child was born; there was no attempted marriage between A and mother before the child’s birth which “is or could be declared invalid”; and there was no attempted marriage between A and mother after the child’s birth which “is or could be declared invalid.” There is not here a presumed relationship under § 14-2-102(a)(iv) inasmuch as such refers to a presumption arising if A receives the minor child into his home and openly holds out the child as his natural child. And, finally, subsection (c), § 14-2-104, is inapplicable since there is a presumed father and child relationship under § 14-2-102, between Z and child by virtue of the fact that Z was married to mother at the time of child’s birth. Section 14 — 2-102 provides in pertinent part: “(a) A man is presumed to be the natural father of a child if: “(i) He and the child’s natural mother are or have been married to each other and the child is born during the marriage * * *. “(b) A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. * * * t> It would seem, then, that the issue is settled and that A lacked standing to maintain this action. However, A contends that such construction unconstitutionally deprives him of due process of law and denies to him equal protection of the law1 by virtue of an impermissible gender-based classification which results from failure to give the biological father the same procedure to establish paternity or nonpaternity as is given to the mother. He does not suggest that such should make the entire enactment (§ 14-2 — 101, W.S.1977 et seq.) unconstitutional, and, thus, leave the matter as it would be under common law. Rather, he argues that legislative intent was to enact a constitutional law and that we should give recognition to such intent by construing the act in a manner whereby A would have standing to [1224] maintain the action. See Sanches v. Sanches, Wyo., 626 P.2d 61 (1981).2 II A is not denied equal protection of the law. Gender-based classifications are not ipso facto invalid. “As is evident from our opinions, the Court has had some difficulty in agreeing upon the proper approach and analysis in cases involving challenges to gender-based classifications. The issues posed by such challenges range from issues of standing, see Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), to the appropriate standard of judicial review for the substantive classification. Unlike the California Supreme Court, we have not held that gender-based classifications are ‘inherently suspect’ and thus we do not apply so-called ‘strict scrutiny’ to those classifications. See Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975). Our cases have held, however, that the traditional minimum rationality test takes on a somewhat ‘sharper focus’ when gender-based classifications are challenged. See Craig v. Boren, 429 U.S. 190, 210 n.*, 97 S.Ct. 451, 464, 50 L.Ed.2d 397 (1976) (POWELL, J., concurring). In Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), for example, the Court stated that a gender-based classification will be upheld if it bears a ‘fair and substantial relationship’ to legitimate state ends, while in Craig v. Boren, supra, 429 U.S. at 197, 97 S.Ct. at 457, the Court restated the test to require the classification to bear a ‘substantial relationship’ to ‘important governmental objectives.’ “Underlying these decisions is the principle that a legislature may not ‘make over-broad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class.’ Parham v. Hughes, 441 U.S. 347, 354, 99 S.Ct. 1742, 60 L. Ed.2d 269 (1979) (STEWART, J., plurality). But because the Equal Protection Clause does not ‘demand that a statute necessarily apply equally to all persons’ or require ‘things which are different in fact ... to be treated in law as though they were the same,’ Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 1499, 16 L.Ed.2d 577 (1966), quoting Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124 (1940), this Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances. Parham v. Hughes, supra; Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977); Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). As the Court has stated, a legislature may ‘provide for the special problems of women.’ Wein1225 berger v. Wiesenfeld, 420 U.S. 636, 653, 95 S.Ct. 1225, 1236, 43 L.Ed.2d 514 (1975).” Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 468, 101 S.Ct. 1200, 1204, 67 L.Ed.2d 437 (1981). The classification here made is not “entirely unrelated to any differences between men and women.” The differences are the very foundation of the classification. Here, they are obvious. The woman carries the child through pregnancy. When born of her, the fact of motherhood is obvious. Not so the man. The proof of fatherhood, or the proof of the lack thereof, must come from an external source. The entire classification within the act (§ 14-2-101, W.S. 1977 et seq.) is premised on this basic and obvious distinction, it is not invidious, but “realistically reflects the fact that the sexes are not similarly situated” in the circumstances. Men do not bear children and give birth to them. Furthermore, to word the enactment without gender classification would result as a purpose for the enactment to be a determination of the existence or nonexistence of a presumed mother in addition to that of a presumed father. Such result would be an absurdity. Nature identifies the mother at the time of birth. There is no need to engage in presumptions. As reflected in its opinion letter, the trial court properly found that: “ * * * the State has an interest in protecting and preserving the integrity of the family unit. See also, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, 1045 (1923). It also has an interest in protecting the best interests of the child. Even in this era of no-fault divorce, frequent premarital sex and cohabitation and new attitudes toward child rearing, a child has a right to legitimacy and that right is one the State is bound to protect during minority. Rule 17(c), W.R.C.P. See also, In the Matter of Parental Rights to Child X,*** [Wyo., 617 P.2d 1078 (1980)].” And see DS v. Department of Public Assistance and Social Services, Wyo., 607 P.2d 911 (1980). The trial court continued its proper analysis as follows: “The statute is a legimate [sic] attempt by the legislature to protect the family unit and the children from external forces. A suit by one outside the marriage, such as in this case, could well destroy a marriage. * * * [Appellant] is concerned that the mother (actually those within the family unit — the child, the mother, and the presumed father) can bring a parentage action which would have the same deleterous [sic] affect on the marriage as would a suit by an outsider. But, the members of the family, not the outsider, are in the best position to judge whether the marriage can stand the trauma or has already failed. Recognizing the same kind of practical test, the U.S. Supreme Court has held that the spousal testimony privilege may be invoked by the spouse called to testify but not by the spouse against whom the testimony is offered (except for ‘pillow talk’). Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). “It could be argued that under our statute a biological father is prevented from asserting his parental rights even after the mother and the presumed father have divorced and the family unit which the State seeks to protect has dissolved. Such an argument would ignore the State’s interest in protecting the child’s claim to legitimacy, which survives a divorce. Also, it would extend equal protection further than the Courts have gone. If the legislative method is rationally related to the State’s interest Courts are not called upon to second guess that method or to strike it down because a better method might be devised. Michael M. v. Superior Court of Sonoma County, supra, [450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437] * * To recognize A’s standing to bring this action would be to invite similar actions by those whose only purpose is to break up a family unit to satisfy a jealous or revengeful feeling. [1226] Certainly, if A has an interest which is constitutionally recognizable, it does not rise to the level of a fundamental right requiring that the legislative classification preventing nonfamily persons from attacking the presumption that Z is the natural father be tested by the standard of strict scrutiny. But this classification will withstand even the strict scrutiny test. Such scrutiny discloses a very young child born to mother when she was married to Z. A family unit was thus established. The child is legitimatized. The statute does not give authority to a stranger to contest the situation without more. For the same reasons, the classification will certainly stand up under the other standards for determining the propriety of a classification. See Skinner v. State of Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); DS v. Department of Public Assistance and Social Services, supra. The legislative classification is reasonable and bears a fair and substantial relationship to important governmental objectives. It passes a constitutional challenge regardless of the standard by which measured. It is to be noted that a biological father may assert his interest pursuant to the act (§ 14-2-102) under proper circumstances such as those in which the child has no presumed father, or in which the presumption of paternity results from a man taking the child into his home and holding it out as his own. In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), and in In Re Lisa R., 13 Cal.3d 636, 119 Cal.Rptr. 475, 532 P.2d 123, 90 A.L.R.3d 1017 (1975), the biological father had standing to maintain an action to assert parental rights after the mother was dead and the custody of the child was in the state. The family-unit interest was not threatened. In Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979), a statutory provision allowing unwed mothers, but not unwed fathers, the right to object to adoption of the children was held unconstitutional with the state interest being to promote legiti-matization of children. A former husband and biological father had sought to prevent the mother’s current husband from adopting the children born during the cohabitation of the biological parents. The biological father was so named on the birth certificates and had maintained contacts with the children over the years. Under the Wyoming statute (§ 14 — 2—102(a)(iv)), he would have had standing as a presumed father to bring a timely paternity action. In the action here before the court, the same interest (to promote legitimacy of children) mitigates to declare the parentage enactment to be constitutional. Not only may the biological father assert his interest under the act (§ 14-2-102) in designated circumstances, thus negating the assertion that the act is gender based, but authorization is there given to the child (approximately 50 percent of the children would be male) and to the presumed father (100 percent of the fathers would be male) to assert their interests. It is difficult to conclude that the classification is based on gender. The classification is based on a distinction between those within the family unit and those without regardless of gender. It recognizes a difference between instances in which legitimacy and the interests of the child can be protected and those instances where such has already been violated. The nongender-based classification furthers important governmental objectives and has a substantial relationship thereto. If the classification can be said to be gender based, it is not invidious but only realistically reflects the fact that sexes are not similarly situated in these circumstances. And, it is proper under any of the standards applied to it. Ill Nor is A denied due process of the law. Since A had no right to maintain an action for paternity at common law, the enactment (§ 14-2-101, W.S.1977 et seq.) did not deprive him of any procedural remedy. The plain fact is that the legislature did not establish a private interest in A which would be entitled to protection by legal process. In fact, had such interest and process been provided by the legislature, it could be construed as state action disruptive [1227] of the family. To provide A with a hearing would create the ill which the statutory scheme seeks to avoid. The bringing of such action and the resulting hearing would attack the family unit and the child’s legitimacy and well being, and it would cause the harm sought to be avoided, regardless of the outcome of the hearing. Any stranger desiring to injure the mother, the child, or the presumed father, for whatever reason, could inject disruptive elements into the family unit by instituting such action. “One of the liberties protected by the Due Process Clause, the Court has held, is the freedom to ‘establish a home and bring up children.’ [Citation.] If a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest, I should have little doubt that the State would have intruded impermissibly on ‘the private realm of family life which the state cannot enter.’ * * * ” Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 862, 97 S.Ct. 2094, 2119, 53 L.Ed.2d 14 (1977). But, assuming arguendo that A had a constitutionally cognizable interest, competing private and state interests would have to be weighed to determine whether a hearing were necessary to afford due process of the law. “In considering this procedure under the Due Process Clause, we recognize, as we have in other cases, that due process of law does not require a hearing ‘in every conceivable case of government impairment of private interest.’ [Citation.] That case explained that ‘[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation’ and firmly established that ‘what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.’ [Citations.]” Stanley v. Illinois, supra, 92 S.Ct. at 1212. The government function in this case (a determination that there is no right of action in A so that he could not attack the family unit and the legitimacy and well being of the child) far outweighs the private interest of A. As stated in the trial court’s opinion letter: “I don’t believe that a statute which prevents a biological father from bastardizing a child violates due process of law. It appears that the legislature has carefully weighed the various social values and decided that the biological father’s rights are subordinate to the collective rights of the child, the mother, the presumed father and the family unit.” Affirmed. Footnotes [1] Section 1 of the Fourteenth Amendment of the United States Constitution provides in pertinent part: “ * * '* nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person * * * the equal protection of the laws.” Art. 1, § 2 of the Wyoming Constitution provides: “In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal.” Art. 1, § 6 of the Wyoming Constitution provides: “No person shall be deprived of life, liberty or property without due process of law.” [2] Appellees also refer to legislative intent as a basis for their position. They point to the fact that § .14-2-101, W.S.1977 et seq., was modeled after the Uniform Parentage Act, but that the following section of the uniform act was omitted from the Wyoming enactment as one of the instances in which a man is presumed to be the natural father of a child: “(5) he acknowledges his paternity of the child in a writing filed with the [appropriate court or Vital Statistics Bureau], which 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 [appropriate court or Vital Statistics Bureau], 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.” 9A U.L.A. Matrimonial, Family & Health Laws, Parentage Act, § 4, p. 591 (1979). Appellees argue that the deliberate omission of such from the Wyoming act evidences an intent to deny such entitlement to a biological father since the language gives such entitlement to him. However the language would not do so in this case. Other states in which the language was not omitted in the adopted legislation interpret the language to afford such entitlement only after the presumption of paternity in another has been rebutted. See, e.g., R. McG. v. J. W., Colo., 615 P.2d 666 at 669 (1980).