J.W.T.

No. D-1742

872 S.W.2d 189 (1994) | Cited 59 times | Texas Supreme Court | February 2, 1994

JUSTICE DOGGETT delivered the opinion of the Court, in which CHIEF JUSTICE PHILLIPS,1 JUSTICE GONZALEZ, JUSTICE HIGHTOWER, JUSTICE GAMMAGE, and JUSTICE SPECTOR join.

The opinion of June 30, 1993 is withdrawn and the following is substituted. In this case we consider whether, under the Texas due course of law guarantee, a biological father may be denied an opportunity to establish his paternity and claim parental rights.

While living together in 1988, Larry G. and Judy T. conceived a child later named J.W.T. Though still married to Randy T., Judy had planned to marry Larry after resolution of her pending divorce. Judy and Larry together arranged for prenatal care with a local clinic in a contract acknowledging Larry's paternity. Pursuant to that agreement Larry made several payments for obstetric treatment.

Judy and Randy later reconciled and dismissed their divorce action. Before the child's birth, Larry brought an action under the Texas Family Code alleging that he was the father of J.W.T., acknowledging responsibility for child support payments, and requesting a judicial declaration of paternity and recognition of his visitation rights. After the birth, Larry unsuccessfully attempted to maintain contact with J.W.T. Under court order, the parties submitted to scientific paternity testing, which showed a 99.41% probability that Larry was J.W.T.'s biological father.

Accepting the contention of Randy and Judy that Larry lacked standing under the Texas Family Code to bring any action relating to J.W.T., the trial court rejected Larry's assertion of constitutional rights and dismissed his claim. The court of appeals reversed, determining that Section 11.03(a)(7) of the Texas Family Code, under which Larry was denied standing to sue, violated the due course of law guarantee contained in article I, section 19 of the Texas Constitution. 815 S.W.2d 863. We affirm the judgment of the court of appeals.

I.

Critical to this appeal is an understanding of the various provisions of the Texas Family Code that affect a putative father's ability to establish parental rights. If, when a child is born, the mother is married to someone other than the biological father, her husband is "presumed" to be the child's actual father, and this "marital presumption" may not be attacked by any party outside the marriage except a government entity. See TEX. FAM. CODE §§ 12.02(a), 12.06(a) (Vernon Supp. 1994); In re M.R.M., 807 S.W.2d 779, 782 (Tex. App.--Houston [14th Dist.] 1991, writ denied).

Several provisions of the Code operate in tandem to prevent a man claiming to be a child's biological father from suing either to rebut the marital presumption or to claim parental rights by establishing his paternity. A biological father has standing to sue under the Family Code only if the child he claims has no presumed father, TEX. FAM. CODE § 11.03(a)(7);2 and the only type of action he may bring is a paternity suit under Chapter 13, which is limited to children who have no presumed father. Id.; TEX. FAM. CODE § 13.21(a).3 The marital presumption is irrebuttable in a Chapter 13 suit and, even under Chapter 12, only the husband or wife may deny the husband's paternity of a child born during their marriage. TEX. FAM. CODE § 12.06(a).4

Thus, a biological father of a child with a presumed father is given the opportunity for a hearing before a court to establish parental rights only at the request of another party; he may not himself initiate such proceedings. With Randy's paternity of J.W.T. denied by neither Judy nor himself, Randy remains the legally recognized, "presumed" biological father. Under the provisions of the Family Code, Larry is completely barred from asserting his paternity and claiming any relationship with his apparent natural son, J.W.T.

II.

Relying on both his biological connection with and actions to accept responsibility for J.W.T., Larry contends that the Family Code's denial of his parental rights violates the command of Article I, section 19 of the Texas Constitution that:

No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.

Under this provision, Larry seeks an opportunity to prove paternity5 and to obtain a judicial declaration entitling him to both the rights and the obligations of a "parent." As a "parent," Larry could be appointed a managing or possessory conservator of J.W.T., unless shown not to be in J.W.T.'s best interest. See TEX. FAM. CODE §§ 14.01, 14.03. If appointed, Larry would be invested with all of the parental rights recognized by the Family Code, except those that the trial court orders are to be exercised exclusively by Judy, including direction of the child's moral and religious training, management of his estate, access to his services and earnings, right to consent to his marriage or participation in the military, and representation of the child in any legal action. Id. §§ 12.04, 14.04, 14.02.

A declaration of paternity would also impose parental duties, including that of financial support and provision for the child of clothing, food, shelter, medical care, and education, as well as contribution to the mother's pre- and post-natal health care expenses. Id. § 13.42, 12.04. These duties may be forced upon Larry regardless of whether he attempts to exercise any concurrent rights of parenthood6 -- a paternity suit may be brought at any time by a number of other interested parties whose standing to sue does not depend on the absence of a presumed father. See, e.g., In re S.C.V., 750 S.W.2d 762 (Tex. 1988) (mother's suit to enforce child support against biological father of child born during her marriage to another man).

Of all the parties granted standing under the Code, only an alleged biological father's standing depends on the absence of a presumed father. See TEX. FAM. CODE § 11.03(a); 13.01. The State, for example, has standing to enforce parental obligations against the biological father of a child born with a presumed father; it can disestablish the presumed father's paternity, introduce evidence to rebut the marital presumption, and institute a Chapter 13 paternity suit against the biological father. Id. § 12.06; see Attorney General of Texas v. Lavan, 833 S.W.2d 952 (Tex. 1992). In short, Larry asks why he cannot assume for himself a responsibility that can be imposed on him by the State, his child, or that child's mother.

III.

Acceptance of Larry's argument that the due course of law provision guarantees him an opportunity to prove paternity would have been highly improbable at the time of the ratification of our Texas Constitution in 1876. A paternity suit was not permitted in Texas at common law.7 Under English common law, an onerous burden of overcoming the marital presumption was designed to protect a child from the harsh consequences of a finding of illegitimacy, which included an inability to obtain support from the father or to inherit from either parent.8 A child could not be delegitimized by proof of the spouses' lack of access to one another if the husband was present "within the four seas" surrounding England at the time of conception, unless his impotence or sterility was proven.9 An evidentiary rule known as Lord Mansfield's Rule, first articulated in 1777,10 further prohibited either the husband or the wife from testifying about lack of access, thus requiring evidence or testimony from sources outside the marriage, which were more difficult to secure. Although widely criticized by legal scholars,11 this rule was generally embraced by the courts, and then gradually rejected in the twentieth century as the legal disabilities associated with illegitimacy diminished.12 See Kisthardt, supra note 8.

These conventions were recognized in Lane v. Phillips, 69 Tex. 240, 6 S.W. 610, 611 (Tex. 1887), in which this court observed with regard to the offspring of an unmarried man and woman who had lived together for twelve years:

while they are his children in fact, the rules of the common law refuse to recognize them as his children, to impose upon him the duties and obligations which the lawful father cannot avoid, or to confer upon them the right to support and parental care which the child begotten in wedlock has.

Though conceding that "the harshness of this rule had long been felt," the court went so far as to question the constitutionality of any statute "which [would] compel the father of an illegitimate child to support it or to contribute to its support." Id. Such an enactment

would most probably be held contrary to such constitutional provisions as provide for equality in public burdens, or would be held to be the exercise of an arbitrary power inconsistent with that relation between the state and the subject which all governments not thoroughly despotic recognize . . . . The common law, for reasons of public policy, refused to enforce [a father's duty to support his illegitimate offspring]; it would be difficult to justify a law enforcing or imposing a personal obligation upon the sole ground that its enforcement would compel the performance of a merely moral duty.

Id.13 Having "recognized his natural and moral obligation" of support, the father, together with the children and their mother, were nevertheless held to have "constituted such a family as entitled to the homestead exemption." Id. at 612.

Despite the harsh rules governing the legal relationship between illegitimate children and fathers, the court nonetheless conferred a right upon a father who assumed the obligations of parenthood. This link of the rights and responsibilities of parenthood is reflected in recent family law developments.

IV.

Significant twentieth century changes in the resolution of issues affecting the family are reflected in statutes, demographics, alteration of social attitudes toward illegitimate children, and decisions of the Texas courts. With the enactment of the Texas Family Code in 1973, a method was statutorily afforded a putative father to establish his paternity voluntarily. See Paul Knisely & Broadus Spivey, Paternity Determinations in Texas: Five Years Under Chapter 13 of the Texas Family Code, 20 S. Tex. L.J. 465, 465 (1979). Adoption in 1975 of an involuntary paternity action, by which others could enforce parental duties upon biological fathers, finally secured the right of illegitimate children to obtain paternal support, as mandated in Gomez v. Perez, 409 U.S. 535, 93 S. Ct. 872, 35 L. Ed. 2d 56 (1973).14 See Ernest E. Smith, Illegitimate Children and Their Fathers: Some Problems with Title 2, 5 Tex. Tech L. Rev. 613, 614 (1974); History of the Texas Family Code, 5 Tex. Tech L. Rev. 267, 268 (1974). The new statutory paternity action applied, however, only with regard to those children born to an unwed mother, and the marital presumption was codified without any mechanism for its rebuttal. See § 12.02, Act of June 15, 1973, 63rd Leg., R.S., ch. 543, 1973 Tex. Gen. Laws 1420.

After paternity suits became statutorily available, this court overruled its prior recognition of Lord Mansfield's Rule. Davis v. Davis, 521 S.W.2d 603 (Tex. 1975). Because an illegitimate child had rights vis-a-vis the true biological father, attempts to preserve the fiction that the mother's husband was the father no longer necessarily protected the child's best interest:

Rules that exclude evidence bearing directly on the truth to be determined ought not to survive without very good cause. . . . Some courts have said that the Rule is required for the protection of the child. This may or may not be its consequence. It may be harmful to the interest of the child.

Id. at 607.

Under Davis, however, the marital presumption continued to bar delegitimization absent testimony regarding non-access or sterility. If married and living together as husband and wife, neither spouse could rebut the marital presumption, not even with scientific evidence of another's paternity. See Clark v. Clark, 643 S.W.2d 795 (Tex. App.--Fort Worth 1982, no writ); Magana v. Magana, 576 S.W.2d 131 (Tex. Civ. App.--Corpus Christi 1978, no writ). Not until 1983 was the husband/presumed father statutorily permitted, under Section 12.06 of the Family Code, to deny paternity of a child born to his wife during their marriage, and to seek court-ordered blood testing to disprove paternity. See Act of Sept. 1, 1983, 68th Leg., R.S., ch. 424, § 7, 1983 Tex. Gen. Laws 2355. In 1987, the same right was accorded the wife. See Act of June 18, 1987, 70th Leg., R.S., ch. 689, § 5, 1987 Tex. Gen. Laws 2548. Though now considered a limitation on attempts to disestablish presumed paternity,15 Section 12.06 was initially deemed "the destruction of the nearly irrebuttable presumption of legitimacy," and hailed as "enthroning science as the supreme arbiter" of paternity. John J. Sampson, Title 2. Parent and Child, 1986 TEXAS FAMILY CODE SYMPOSIUM, 17 Tex. Tech L. Rev. 1065, 1151 (1986). Permitting the scientific truth about paternity to govern the legal relations between the real people affected by court rulings promoted certainty and stability:

Once the subject has been broached, the only way that the parties will ever function on a reasonably civilized basis is to settle once and for all whether the husband indeed is the father of the child. After doubt has arisen on that question, the chance for compliance with child support orders, the establishment of a reasonable parent-child relationship between the to-be ex-husband and the child, and all the other innumerable aspects of the relationship are contingent on the man's knowledge of the truth regarding his suspicion.

Id.

Married parents separate, live with others, divorce, and remarry--sometimes each other. More than one quarter of the children in this country are born to unmarried mothers, and with the prevalence of divorce, an even greater proportion of children live in households in which one or both of their natural parents are absent. See STATISTICAL ABSTRACT OF THE UNITED STATES 69, 54 (1992). These trends remain a part of the social structure within which our judicial system operates.16

The Texas Family Code no longer employs the term "illegitimacy." See Act of Sept. 1, 1989, 71st Leg., R.S., ch. 375, 1989 Tex. Gen. Laws 1477-87 (adopting "child who has no presumed father" to replace the term "illegitimate child" throughout the Family Code). Nor do we require Family Code legitimation as a prerequisite to a child seeking recovery for the loss of a natural father. Garza v. Maverick Market, Inc., 768 S.W.2d 273 (Tex. 1989).

Human physiology has not changed, but our understanding of it has. Current methods of scientific testing provide more reliable and less intrusive means of determining paternity. Under the current Family Code, the court is required to order the mother, alleged father, and child to submit to scientifically accepted paternity testing that excludes at least 99% of the male population from the possibility of parentage. TEX. FAM. CODE § 13.02 (Vernon Supp. 1994). And advances in genetic testing techniques can accommodate this requirement. See Margery W. Shaw & Miriam Kass, Illegitimacy, Child Support, and Paternity Testing, 13 Hous. L. Rev. 41, 52 (1975).

V.

We have recognized the adaptability to such changes of our state's fundamental governing law and found considerable strength in the organic nature of its command. Davenport v. Garcia, 834 S.W.2d 4, 19 (Tex. 1992, orig. proceeding).

In asserting a due course of law claim, Larry must establish that his interest is constitutionally protected. See Tarrant County v. Ashmore, 635 S.W.2d 417, 422 (Tex. 1982)(extending due course protection to interest of official in elected position); see also Rogers v. Texas Commerce Bank - Reagan, 755 S.W.2d 83 (Tex. 1988) (per curiam) (deprivation of rights without hearing violates art. I, § 19); Kramer Trading Corp. of Texas v. Lyons, 740 S.W.2d 522, 524 (Tex.App.--Houston [1st Dist.] 1987, no writ) (protecting constitutional right under art. I, § 19).

In previous decisions, we have accorded great respect for the biological bond between parent and child. In Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976), we recognized that "the natural right which exists between parents and their children is one of constitutional dimensions." Accord Holick v. Smith, 685 S.W.2d 18, 20-21 (Tex. 1985); In re G.M., 596 S.W.2d 846 (Tex. 1980). Similarly, in Gunn v. Cavanaugh, 54 Tenn. App. 393, 391 S.W.2d 7 (Tex. 1965), we declared that

the rights of the natural parent are of high importance and due process properly requires that the burden of proof to show forfeiture of parental rights rests upon [whomever challenges those rights].

We have nonetheless tempered these decisions by recognizing that the rights of natural parents are not absolute; protection of the child is paramount. See id. The rights of parenthood are accorded only to those fit to accept the accompanying responsibilities. See, e.g., TEX. FAM. CODE § 14.03(d) (parental visitation may be refused when such would "endanger the physical or emotional welfare of the child").

To determine the extent of procedural rights to which a biological father is entitled, we must consider the public interest in protecting the child along with the father's constitutional interest in establishing a relationship with his child. In a situation such as that presented here where the biological father does assert his interest17 near the time of the child's birth,18 standing is constitutionally mandated if he both 1) acknowledges responsibility for child support or other care and maintenance, and 2) makes serious and continuous efforts to establish a relationship with the child. In In re K., 535 S.W.2d 168, 171 (Tex. 1976), we noted the presence of a

[genuine public] interest in securing stable homes and supportive families for children, [in] distinguishing between the father who has accepted the legal and moral commitment to the family and the father who has not done so.

This emphasis on the father's commitment to parental duties is consistent with that reached under the due process provision of the Louisiana Constitution. See In re Adoption of B.G.S., 556 So. 2d 545 (La. 1990). There, the court explained that

this [constitutional] interest does not come into existence or is soon lost, however, if the father is unable to demonstrate that he is fit and committed to the responsibilities of parenthood. Moreover, he must show that he has taken concrete actions to grasp his opportunity to be a father and that there is a potential for him to make a valuable contribution to the child's development. Consequently, the mere existence of a biological link and fitness will not sustain the father's interest; it is defeasible if not preserved by dedicated, opportune fatherly action.

Id. at 550.19

To permit proof of such an interest, Texas courts have sought to ensure a fair hearing to a putative father. As we concluded in In re K. :

the biological father of an illegitimate child [has] the opportunity to prove which category [accepting commitment or not accepting responsibility for the child] in which he falls and to show that he should not be treated differently from fathers legally committed to the mothers of their children. Thus [the putative father] sought and received a fair hearing.

535 S.W.2d at 171. Similarly, in Rogers v. Lowry, 546 S.W.2d 881, 884 (Tex. App.--Houston [1st Dist.] 1977, orig. proceeding), the court held that: "[A] child's biological father has such a substantial interest in the [adoption] proceeding that due process requires he be afforded notice and an opportunity to be heard." See also In re C.D.V., 589 S.W.2d 543, 547 n.3 (Tex. Civ. App.--Amarillo 1979, no writ) (to avoid due process implications, preferable to provide notice of adoption proceedings to biological father). While these cases recognized only the importance of providing due process to fathers of illegitimate children, we conclude that the right to be heard does not cease merely because the mother is married. While federal jurisprudence may be useful in understanding our state constitutional guarantees, see Davenport, 834 S.W.2d at 20, the help on the question presented here is limited by the sharp divisions present in the consideration of a claim similar to Larry's in Michael H. v. Gerald D., 491 U.S. 110, 105 L. Ed. 2d 91, 109 S. Ct. 2333 (1989).20 Michael H., the putative father, challenged the conclusive presumption created by a California statute that a man cohabiting with his wife was the biological father of a child born during the marriage. Id. 491 U.S. at 119-20. Notwithstanding both his biological fatherhood and participation in rearing his daughter, Michael H. was found by a four-member plurality to possess no interest deserving constitutional protection,21 despite recognition by the other five members of the Court22 that this holding was in apparent conflict with recent application of the federal Due Process clause to biological fathers. Id. at 133 (Stevens, J., concurring); id. at 142 (Brennan, J., dissenting); id. 491 U.S. at 158-59 at 129 (White, J., dissenting) (citing Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972)); Caban v. Mohammed, 441 U.S. 380, 60 L. Ed. 2d 297, 99 S. Ct. 1760 (1979)); see also Note, Rebutting the Marital Presumption: A Developed Relationship Test, 88 Colum. L. Rev. 369, 379 (1988) (predicting, prior to Michael H., that a statute creating an irrebuttable presumption would violate the federal due process rights of a putative father).

Michael H. was, consequently, considered an aberration -- "the plurality's departure" from previous federal decisional law -- by the Louisiana Supreme Court in In re Adoption of B.G.S., 556 So. 2d at 549-50 n.2, and is perhaps best described in Justice Brennan's dissent:

The atmosphere surrounding today's decision is one of make-believe. Beginning with the suggestion that the situation confronting us here does not repeat itself every day in every corner of the country, moving on to the claim that it is tradition alone that supplies the details of the liberty that the Constitution protects, and passing finally to the notion that the Court always has recognized a cramped vision of "the family," today's decision lets stand California's pronouncement that Michael--whom blood tests show to a 98 percent probability to be Victoria's father--is not Victoria's father. When and if the Court awakes to reality, it will find a world very different from the one it expects.

Michael H., 491 U.S. at 128 (Brennan, J., dissenting); see also In re Adoption of Kelsey S., 1 Cal. 4th 816, 823 P.2d 1216, 1228 (Cal. 1992) (stating "we must not read too much into Michael H.," and relying on that case for the proposition that five justices recognized unwed father's liberty interest). It is wholly under our Texas due course of law guarantee, which has independent vitality, separate and distinct from the due process clause of the Fourteenth Amendment to the U.S. Constitution,23 that we reach today's decision.

VI.

Randy and Judy insist that Larry's right to be heard may be statutorily denied. They argue that, by prohibiting an alleged biological father from asserting his paternity, the Family Code protects the marital unit from intrusion by outsiders and protects the child from delegitimation. The State has a legitimate interest in minimizing familial disruptions that are harmful to the child. But as the court of appeals observed, this marital unit was clearly disrupted before Larry ever filed this suit:

that the biological mother, for whatever reason, has chosen to engage in sexual relations outside of marriage is proof itself that the "integrity and solemnity of the family unit" has been damaged at least to some degree. [Resolution of these difficulties by the husband and wife] does not, we feel, give license to the state to perpetuate the myth of "presumption of paternity" so as to deprive the biological father of at least a chance of being able to exercise those rights, duties, privileges, and responsibilities that all civilized societies have recognized to be fundamentally ingrained in the concept of parenthood.

815 S.W.2d at 869.

Perhaps this asserted interest had merit in an earlier era when the true biological father could not be established with near certainty and when illegitimacy carried a significant legal and social stigma. Since this is no longer the case,24 the focus should more properly be directed toward what is best for the child -- it may be in best interest of the child to allow development of a relationship with the natural father and it may not.25 The effect of the alternative offered by the dissenting justices is to leave this determination of the child's best interest and the definition of family, itself, exclusively to the biological mother. In the name of protecting the family, Justice Enoch would grant rights to putative fathers who had been permitted by the mother to develop a relationship with the child but not to those not afforded that opportunity. S.W.2d at n.5. (Enoch, J., dissenting).

To Justice Enoch, Larry is only "a stranger to the marriage into which the child is born," id. at , despite having lived with the mother during the marriage, as well as their mutual arrangements for prenatal care. This relationship is morally judged, rather than legally judged, being dismissed as a mere "dalliance," id. at n.1, without explaining why the rights accorded to one participant in their relationship should overwhelm those of the other. The father is a "stranger," if that term has any relevancy to this issue, only in so far as the statutory law has traditionally deprived him of rights.

We do not say that our Constitution guarantees every natural father ties with his illegitimate offspring.26 We do say that one who is arbitrarily prevented from attempting to establish any relationship with his natural child, after making early and unqualified acceptance of parental duties as Larry has done, is denied due course of law under section 19 of our Texas Bill of Rights. Those provisions of the Family Code that bar Larry's pursuit of his parental rights violate our constitutional guarantee that every Texan shall be accorded due course of law. We, therefore, hold unconstitutional Section 11.03(a)(7) and 12.06(a) to the extent that they wholly deny a putative father's standing to sue with regard to a child who has a presumed father, and prevent the bringing of any suit affecting the parent-child relationship in which a presumption of paternity may be rebutted.27

The judgment of the court of appeals is affirmed and this cause is remanded to the trial court for further proceedings consistent with this opinion.

Lloyd Doggett

Justice

Opinion Delivered: February 2, 1994.

JUSTICE HECHT, concurring.

I agree with the Court that a father's interest in his child is so fundamental an aspect of individual liberty that it cannot be denied by the State except by due course of law, as guaranteed by article I, section 19 of the Texas Constitution. It seems to me almost intuitive that in a free society the State cannot deny a man all right to his child without due process, and I should have thought this principle "too clear for dispute", Michael H. v. Gerald D., 491 U.S. 110, 139, 105 L. Ed. 2d 91, 109 S. Ct. 2333 (Brennan, J., dissenting), but for the dissenting opinions in this case. To dispel the doubt they raise whether parenthood is a constitutionally protected interest, the authorities on which the Court relies to find this interest are more than persuasive.

In the past, the law did not as a rule recognize the right of parenthood in a man who claimed to be the father of the child of a married woman. The reason, it seems to me, was merely that until recently it was impossible to determine the validity of such claims to any acceptable degree. Advancements in medical technology which can often predict, almost to a certainty, whether a man's claim of paternity is valid remove that hindrance to acknowledging the right of parenthood. The right is not, of course, absolute. A father cannot assert his interest if he has obtained it by force, that is, by rape, or by fraud or other wrongdoing. Such circumstances are governed by the ancient maxim: nullus commodum capere potest de injuria sua propria. Also, the interest can be terminated by the father voluntarily, as in the case of adoption, and against the father involuntarily, as when he is adjudicated to have knowingly endangered the child's well-being.

Acknowledging the right of a biological father in such circumstances does not preclude the existence of other equal rights. I should have thought it manifest that the "sanctity of the family . . . is [so] deeply rooted in this Nation's history and tradition", id. at 106 (Scalia, J., plurality), that the interests of its members in preserving its unity are also constitutionally protected. Any doubt cast upon the existence of such interests by the Court's failure to acknowledge them is completely dispelled by authorities cited by JUSTICE ENOCH.

Thus, it seems to me that two constitutionally protected interests are involved in this case -- parenthood and preservation of the family -- and they are in conflict. The State has chosen to resolve this conflict by denying the biological father of a child who has a presumed father any standing to assert his interest. In all such circumstances, the family interest is made paramount by statute. I agree with the Court that the State has no reason or purpose sufficient to deny every biological father the right to assert his interest in a child simply because there is a presumed father. When a biological father acknowledges his responsibility to help support the child and has made every reasonable effort to establish a relationship with the child, he is entitled to assert his interest in the child, notwithstanding the opposition of the mother and her husband.

He is not, however, necessarily entitled to prevail in his assertion. I agree with the Court that in determining what rights a biological father may have in his child, the best interest of the child must be considered. I do not agree with the implication in the Court's opinion -- it is really only an implication and nothing more -- that the best interest of the child is the only, or always the paramount, consideration. The interests of the mother and her husband in preserving their family unit exclusive of the biological father are equal in dignity to the biological father's interest and entitled to equal consideration. Such interests are especially important when the best interest of the child is unclear. For example, when it appears that a child would do as well or better with his biological father as with his mother and her husband, should the biological father be allowed visitation if his continued presence in the child's life would almost certainly imperil the stability of the mother's marriage? I suspect this situation is commonplace, and I cannot see how consideration of the best interest of the child alone supplies the solution.

The Court does not exclude family interests from consideration in determining what rights should be awarded a biological father. I presume therefore that such interests can and should be fully considered. With this understanding, I concur in the judgment of the Court.

Nathan L. Hecht

Justice

Opinion DELIVERED: February 2, 1994

ING OPINION

The question in this case is not whether a man who alleges himself to be the biological father of a child born during the marriage of the mother to another man will be entitled to parental rights to the child. The question is whether this stranger to this marriage1 has a constitutionally protected interest that entitles him to challenge and petition in the first instance for paternity of a child born into that marriage, despite the fact that neither the mother, the presumed father, nor the child have disputed the presumed father's paternity. In so holding, the Court concludes that sections 11.03(a)(7) and 12.06(a) of the Texas Family Code, which do not permit a putative father to petition for paternity where the mother is not unwed, violate the due course of law guarantee of the Texas Constitution. TEX. CONST. ART. I, § 19. Under the guise of denial of procedural due course of law, the Court is in fact creating a substantive due course of law interest in favor of an putative biological father to challenge paternity and obtain parental rights in derogation of the right of the marital family to protect its children from claims of illegitimacy by outsiders. With this action, I cannot agree. I dissent.

A putative biological father who claims parental rights to a child and who is also a stranger to the marriage into which the child is born does not have a common law, statutory, or constitutional interest that is protected by the Texas Constitution. At common law, a putative biological father could not bring an action for paternity. See Home of the Holy Infancy v. Kaska, 397 S.W.2d 208 (Tex. 1965); L.G. v. F.O.P., 466 S.W.2d 41 (Tex. Civ. App.--San Antonio 1971, writ ref'd n.r.e.), rev'd per curiam, Gomez v. Perez, 409 U.S. 535, 35 L. Ed. 2d 56, 93 S. Ct. 872 (1973). A putative biological father has only those rights conferred by the Texas Family Code. Section 11.03 of the Family Code provides that a putative biological father may bring a suit to establish paternity only of a child who has no presumed father, but not otherwise. TEX. FAM. CODE ANN. § 11.03(A)(7). Because the putative biological father had no right at common law to maintain an action for paternity in any circumstances, the enactment of section 11.03 did not deprive him of any existing procedural remedy. Accordingly, the only question is whether a putative biological father who is a stranger to a marriage has a constitutionally created and protected interest to challenge and petition for paternity of a child born into a marriage.

The cases relied on by the Court in recognizing a constitutionally protected interest in favor of a putative biological father are not applicable. None of the cases cited by the Court involved a situation in which a stranger to a marriage sought the right to challenge and establish paternity of a child born into the marriage when neither the parties to the marriage nor the child were disputing the paternity of the child.

In reaching its decision, the Court also rejects a United States Supreme Court holding directly on point. In Michael H. v. Gerald D., 491 U.S. 110, 105 L. Ed. 2d 91, 109 S. Ct. 2333 (1989), the Supreme Court held that a putative biological father was not deprived of any due process rights by a state statute that prevented him from petitioning to establish his paternity of a child born into a marriage. The Court dismisses Michael H. as an "aberration."2 S.W.2d at . To the contrary, Michael H. simply reflects a determination that not all parental-related rights are to be given the same stature and constitutional import, a distinction which this Court fails to recognize. For example, in Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), the United States Supreme Court afforded constitutional recognition and due process protection to a putative biological father who had "sired and raised" his children born out of wedlock. There, the Supreme Court held unconstitutional a statute that automatically placed children as wards of the state upon the death of their unwed mother without a hearing of fitness of the unwed father or proof of neglect. 405 U.S. at 658. The natural father who had lived with and raised the children claimed that the statute violated his due process rights. Although discussed in terms of the individual right of Mr. Stanley, the interest protected in Stanley is clearly an interest in preserving integrity of the family unit.3 Id. at 651. The interest protected in Stanley is far different from the interest claimed by a putative biological father who challenges the paternity of a child born into a marriage and who is in the eyes of the law and, in actuality, a stranger to the marriage and to the child.

Although this Court is not bound by the decisions of the United States Supreme Court in construing the due course of law provision of the Texas Constitution, I find the decisions of the United States Supreme Court, and in particular, Michael H., instructive and persuasive. See also Jack v. Jack, 796 S.W.2d 543 (Tex. App.--Dallas 1990, no writ). Even assuming that our due course of law provision is broader and protects interests not protected by the Due Process Clause of the United States Constitution, I find nothing in the jurisprudence of this State to suggest that Texas has traditionally protected and recognized the interests of an adulterous putative father to establish and obtain parental rights over the objection of the mother and presumed father and to the derogation of the marital family's right to protect its children from claims of illegitimacy by outsiders. Accordingly, I would conclude that Larry G., the putative biological father, does not have a constitutional interest protected under Article I, section 19 of the Texas Constitution to challenge and petition for paternity of a child born into a marriage between a woman and another man, and consequently, he has not been deprived of due course of law by sections 11.03(a)(7) and 12.06(a) of the Texas Family Code.

Even if Larry G. has a constitutionally cognizable interest, the Court ignores a powerful countervailing interest, the family's right to be free from unwanted interference and disruption by state sanctioned attempts to delegitimize the children of a marriage.4 See Moore v. City of East Cleveland, 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) (recognizing and detailing history of constitutional protection for sanctity of family from unwanted intrusion absent compelling state interest). In Stanley, supra, the United States Supreme Court held that a putative biological father's interest warranted due process protection "absent a powerful countervailing interest." Stanley, 405 U.S. at 651. Contrary to Stanley, in which Stanley's individual interest was synonymous with preservation of the family, the family interest in this case is a powerful countervailing interest; an interest which promotes the marital relationship, preserves intact and protects an existing family from disruption and interference by external forces, and protects the child from confusion, torn affection, and the stigma of illegitimacy. See Moore, 405 U.S. at 499-500. See A v. X, Y, and Z, 641 P.2d 1222 (Wyo. 1982); Petitioner F. v. Respondent R., 430 A.2d 1075 (Del. 1980).

In failing to recognize the significant countervailing constitutional interests of the family to be free from unwanted interference and attack by strangers, the Court has rendered the putative biological father's right to petition for paternity absolute and superior to any rights of the family. To give constitutional weight to the interests of a stranger, albeit the putative biological father, without regard to the interests of the family and the state in protecting the family would invite actions by persons whose only purpose is to break up the family to satisfy a jealous or revengeful feeling.5 Where a child is born into a marriage, there are contradictory interests between the putative biological father and the family. The state cannot afford both the putative biological father and the family absolute interests. In the provisions of the Texas Family Code, the state has given preference to the interests of the family to be free from unwanted and disruptive interference.

Because the nature of the interest sought to be protected by the Court in favor of putative biological fathers is in reality a substantive due process interest rather than a procedural due process right, the interest is not absolute. Sections 11.03(a)(7) and 12.06(a) do not impinge on a putative biological father's substantive due process interest if they are rationally related to a legitimate state interest.6 TEX. CONST. ART. I, § 19, commentary. I would hold that the legislature's preference for the interests of the family are rationally related to the state's interest in protecting and promoting the interests of the existing marriage and family unit and that sections 11.03(a)(7) and 12.06(a) of the Texas Family Code do not violate the due course of law guarantee of the Texas Constitution.

I would reverse the judgment of the court of appeals and affirm the trial court judgment.

Craig Enoch

Justice

Opinion DELIVERED: June 30, 1993

1. CHIEF JUSTICE PHILLIPS DOES NOT, HOWEVER, JOIN IN NOTE 23 OF THIS OPINION.

2. Section 11.03. Who May Bring Suit (a) An original suit affecting the parent-child relationship may be brought at any time by: (7) a man alleging himself to be the biological father of a child who has no presumed father filing in accordance with Chapter 13 of this code, but not otherwise. . . ." (Emphasis added).

3. Section 13.21. Voluntary Paternity (a) If a statement of paternity has been executed by a man claiming to be the biological father of a child who has no presumed father, he, the mother of the child, or the child . . . or a governmental entity may file a petition for a decree adjudicating him as a parent of the child. . . . (Emphasis added).

4. Section 12.06. Denial of Paternity (a) In any suit affecting the parent-child relationship, other than a suit under Chapter 13 of this code, a husband or wife is entitled to deny the husband's paternity of the child who is the subject of the suit and who was born or conceived during the marriage of the parties. The question of paternity under this section must be raised by an express statement denying paternity of the child in the spouse's pleadings in the suit, without regard to whether the spouse is a petitioner or respondent. (Emphasis added).

5. Procedurally, this case is unusual in that the factual foundation for establishing paternity was confirmed by court ordered blood tests before the trial court determined that the biological father lacked standing. In contrast, we contemplate a blood test only after a showing at an initial hearing by the putative father that he has met the standard announced in this writing.

6. Indeed, the presumed father may relieve himself of any of his currently accepted parental obligations at any time by successfully denying his paternity of J.W.T. in a suit under Chapter 12. While now adamantly assuming those burdens, Randy has a ready escape if he ever chooses to discontinue providing for a child that is not his own.

7. See Home of the Holy Infancy v. Kaska, 397 S.W.2d 208 (Tex. 1965); L.G. v. F.O.P., 466 S.W.2d 41 (Tex. Civ. App.--San Antonio 1971, writ ref'd n.r.e.), rev'd per curiam, Gomez v. Perez, 409 U.S. 535, 93 S. Ct. 872, 35 L. Ed. 2d 56 (1973).

8. See, e.g., Mary Kay Kisthardt, Of Fatherhood, Families and Fantasy: The Legacy of Michael H. v. Gerald D., 65 Tul. L. Rev. 585, 588 (1991) (citing Earle v. Da wes, 3 Md. Ch. 230 (1886)); Deborah J. Veneziah, The Rights of an Illegitimate Child Post- Gomez v. Perez: A Legitimate Situation?, 12 ST. MARY'S L.J. 199, 200-01 (1980); HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 174 (2d ed. 1988) (citing Moncrief v. Ely, 19 Wend. 405 (N.Y. 1838); Allen v. Hunnicutt, 230 N.C. 49, 52, 52 S.E.2d 18 (1949). Contra Doughty v. Engler, 112 Kan. 583, 211 P. 619 (1923)). Although no common law action was available against the father of an illegitimate child, certain quasi-criminal procedures could be brought for support. See CLARK, supra., at 174 (citing Helmholz, Support Orders, Church Courts, and the Role of Filius Nullius: A Reassessment of the Common Law, 63 Va. L. Rev. 431 (1977) and Helmholz, Bastardy Litigation in Medieval England, 13 Am. J. Legal Hist. 360 (1969)). These procedures were not, however, made a part of the legal heritage brought to this country from England. Id. at 174.

9. See Kisthardt, supra note 8, at 589.

10. See Goodright v. Moss, 2 Cowper 291, 98 Eng. Rep. 1257 (1777).

11. See MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH-CENTURY AMERICA 220 (1985) ("Critics had attacked the doctrine barring spousal testimony on sexual access as inconsistent and unfair from the first days of the republic. . . . John Wigmore . . . condemned [the rule] as absurd and unwise . . . .").

12. In addition to the right to financial support from the biological father, see Gomez v. Perez, 409 U.S. 535, 93 S. Ct. 872, 35 L. Ed. 2d 56 (1973) (per curiam), an illegitimate child now also has a right to paternal inheritance, Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), even though the father's paternity has not been established prior to death. Dickson v. Simpson, 807 S.W.2d 726, 728 (Tex. 1991). An illegitimate child also has a right to share in proceeds of a wrongful death or worker's compensation claim for the death of its father. See Levy v. Louisiana, 391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 2d 436 (1968); Weber v. Aetna Casualty, 406 U.S. 164, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972). In Garza v. Maverick Market, Inc., 768 S.W.2d 273 (Tex. 1989) and Brown v. Edwards Transfer Co., 764 S.W.2d 220 (Tex. 1988), we refused to engraft onto the Wrongful Death Act the somewhat onerous requirements for establishing paternity set forth in either the Probate or Family Codes.

13. The very kind of statute, which this court thought probably unconstitutional in 1887, is today a mainstay in the state's efforts to reduce the welfare rolls by enforcing child support obligations against irresponsible parents. TEX. HUM. RES. CODE §§ 76.001-.008.

14. This decision represents one of the major developments in the evolution of the rights of illegitimate children. See Paul Knisely & Broadus Spivey, Paternity Determinations in Texas: Five Years under Chapter 13 of the Texas Family Code, 20 S. Tex. L.J. 465, 468 (1979). Today, all states provide some method for compelling fathers to support their illegitimate children. CLARK, supra note 8, at 174-75.

15. Section 12.06, which had permitted only the husband and wife to deny the presumed father's paternity, was the converse of Lord Mansfield's Rule, which barred both spouses from denying paternity and required the testimony of outsiders to rebut the presumption of legitimacy. Compare In re M.R.M., 807 S.W.2d 779 (Tex. App. -- Houston [14th Dist.] 1991, writ denied) with Pinkard v. Pinkard, 252 S.W. 265 (Tex. Civ. App. -- Beaumont 1923, no writ). Section 12.06 has now been amended to permit the State to deny the presumed father's paternity. Act of June 16, 1993, 73rd Leg., R.S., ch. 730, § 3, 1993 Tex. Gen. Laws 2866.

16. Some of these interests have been statutorily protected. As "a person who has had actual possession and control of the child for at least six months immediately preceding the filing of the petition," a stepparent, or a disestablished presumed father, now has standing to sue under Section 11.03(a)(8), and "a grandparent or other person deemed by the court to have had substantial past contact with the child sufficient to warrant standing" may intervene in a suit pursuant to Section 11.03(c). These non-parents are not, however, subject to a duty of support. See Mata v. Moreno, 601 S.W.2d 58, 59 (Tex. Civ. App.--Houston [1st Dist.] 1980, no writ); Blalock v. Blalock, 559 S.W.2d 442 (Tex. Civ. App. -- Houston [14th Dist.] 1977, no writ). See generally Brenda J. Runner, Protecting a Husband's Parental Rights When His Wife Disputes the Presumption of Legitimacy, 28 J. Fam. L. 115 (1989).

17. Justice Enoch qualifiedly recognizes such an interest, but only if the biological father has actually established a relationship with a child. 872 S.W.2d at 202 n.5. (Enoch, J., dissenting). The difficulty with this view is that the very statutory provisions that we consider today enable the mother to entirely obstruct this relationship. Gender is the preeminent consideration for Justice Cornyn. While he would accord an adulterous married woman near absolute rights to her child, he believes that her adulterous male partner "has few if any rights." 872 S.W.2d at 213 (Cornyn, J., dissenting).

18. A delay by the biological father in asserting parental rights long after the child has established a relationship with the presumed father is certainly a factor a trial court should consider in balancing these interests.

19. Due process rights of a biological father were also recognized in In re Adoption of Kelsey S., 1 Cal. 4th 816, 823 P.2d 1216 (Cal. 1992); In re Lisa R., 13 Cal. 3d 636, 119 Cal. Rptr. 475, 532 P.2d 123, 90 A.L.R.3d 1017 (Cal. 1975); see also Slawek v. Stroh, 62 Wis. 2d 295, 215 N.W.2d 9 (Wis. 1974).

20. There were actually five opinions in this 4-1-4 split decision: A plurality opinion by Justice Scalia, joined in its entirety by Chief Justice Rehnquist and in part by Justices O'Connor and Kennedy; a separate concurrence by Justices O'Connor and Kennedy; a concurrence by Justice Stevens; and separate dissents by Justice Brennan, joined by Justices Marshall and Blackmun, and by Justice White, joined by Justice Brennan. See id.

21. Rather than ask whether parenthood is an interest that has traditionally received recognition and protection, Justice Scalia, as author of the plurality, assessed the historical support for "the right of the natural father of a child conceived within, and born into, an extant marital union that wishes to embrace the child." Id. at 127. Two of the four Justices joining his opinion, however, wrote separately to disapprove of that portion of the decision and to point out its inconsistency with the interpretive method employed in prior decisions under the Due Process Clause. See id. at 111 (O'Connor and Kennedy, JJ., concurring); see also Note, Michael H. v. Gerald D.: The Constitutional Rights of Putative Fathers and a Proposal for Reform, 31 B.C. L. REV. at 1201.

22. The disputed California statute was upheld because Justice Stevens concurred with the plurality, despite his disagreement with Justice Scalia's "rejection [of] 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." Id. 491 U.S. at 133 (Stevens, J., concurring). Justice Stevens "assumed for the purpose of deciding [the] case" that Michael's relationship with his daughter deserved due process protection, noting that recent cases, such as Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), and Caban v. Mohammed, 441 U.S. 380, 60 L. Ed. 2d 297, 99 S. Ct. 1760 (1979), "demonstrate that enduring 'family' relationships may develop in unconventional settings." He nevertheless found sufficient safeguard for Michael's interest in California's statutory authorization for trial court discretion in allowing anyone with an interest in a child to gain visitation rights. Id. 491 U.S. at 133. See Kisthardt, supra note 8, at 612. The Texas Family Code affords no comparable right. Section 11.03(c) permits a person "deemed by the court to have had substantial past contact with the child sufficient to warrant standing," a right of intervention in a suit filed by someone authorized to sue under subsections 11.03(a) or (b); by its terms this would exclude the putative father. Even though the tenuous coalition that produced a judgment in Michael H. might well have decided the instant case differently than Justices Cornyn and Enoch now suggest, speculating how another court would resolve this matter is hardly determinative of our decision.

23. As recognized in City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293, 71 L. Ed. 2d 152, 102 S. Ct. 1070 (1982): "The language of the Texas [due course] constitutional provision is different from, and arguably significantly broader than, the language of the corresponding federal provisions."

24. "The original reasons for the conclusive presumption of paternity are out of place in a world in which blood tests can prove virtually beyond a shadow of a doubt who sired a particular child and in which the fact of illegitimacy no longer plays the burdensome and stigmatizing role it once did." Michael H., 491 U.S. at 117 (Brennan, J., dissenting).

25. Status as a "parent" under the Family Code does not guarantee a relationship with the child. The trial court may refuse to award visitation if "it finds that parental possession or access is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child." TEX. FAM. CODE § 14.03(d).

26. Justice Cornyn expresses concern that four adoption agencies believe that "under this court's decision there is no impediment to a putative father asserting parental rights to a child who has been adopted." S.W.2d at . Yet this point was raised only in a single short amicus brief, as a rhetorical question about the decision of the court of appeals: If the current statutory scheme is invalidated, then what is to prevent an alleged biological father who has not relinquished his purported parental rights from coming forward to challenge the legal relationship between an adoptive father and his adoptive child and to disrupt the sanctity of the adoptive family? Such is the effect of the Beaumont court's invalidation of the Texas Family Code's restrictions on rebutting the paternity presumption. (emphasis added). An examination of the Family Code indicates that our decision does not jeopardize the adoption process. Once an adoption petition has been granted, a paternity suit is prohibited. TEX. FAM. CODE § 13.44. An alleged or probable father is entitled to notice prior to the termination of parental rights -- a prerequisite to a valid adoption. Id. §§ 15.023; 11.09(8); 16.03. But if, after receiving notice, the alleged father fails to respond by filing an admission of paternity, the Code specifically provides that his parental rights may be involuntarily terminated in order to complete an adoption. Id. § 15.023. Noncompliance with these provisions would certainly appear inconsistent with the requirement set forth here that the biological father demonstrate a prompt assumption of parental duties. An adoption decree may not in any event be attacked more than two years after it is entered. Id. § 16.12. During the extended period that this motion for rehearing has been pending, while the writings of others were being prepared, no adoption agency or any other person or entity has suggested to this Court that any of the horrors envisioned by Justice Cornyn comport with reality.

27. We therefore disapprove the contrary holding in Jack v. Jack, 796 S.W.2d 543 (Tex. App.--Dallas 1990, no writ).

1. The Court suggests that Larry G. is not a stranger to the marriage because he lived with the mother briefly when she had separated from her husband. Larry is certainly a stranger to the marriage in the plain and simple sense that he is not a party to the marriage. The fact that Larry may have lived with Judy for four months does not make Larry any less a stranger to the marriage. The Court's ruling today raises a dalliance to a constitutionally protected interest.

2. In the same breath that the Court rejects Michael H. as authoritative or dispositive on state Constitutional issues, the Court relies on another United States Supreme Court decision, Caban v. Mohammed, 441 U.S. 380, 389, n.7, 60 L. Ed. 2d 297, 99 S. Ct. 1760 (1978), to support its recognition under our state's Constitution of a constitutionally protected interest in favor of the putative father in this case.

3. In Michael H., the plurality specifically noted that Stanley and Caban rested upon the sanctity traditionally accorded to relationships that develop within the unitary family. 491 U.S. at 123.

4. The Court generally dismisses the family unit's interest in protecting its children from claims of outsiders because paternity can be determined with greater certainty through scientific testing. S.W.2d at . I would not consider the accuracy of scientific testing to be the basis either for diminishing the family's interests or promoting the putative biological father's rights to constitutional proportion. The Court specifically dismisses this family unit's entitlement to protection of its interest because of the mother's affair with the putative biological father when the couple had separated and filed for divorce. The Court's moralistic judgment is inappropriate, but more to the point, the question presented is not whether Larry will win his claim to parental rights (e.g., custody or visitation), the question is whether he has the right to challenge paternity in the first instance. The facts of this case are irrelevant to the question because they are not developed for the record until after the challenge is permitted to be made. In any event, in this case, the mother and the presumed father reconciled before the child's birth, have continued to live together as a married couple, and have embraced and raised the children born of their marriage as their own.

5. See, e.g., Henderson v. Wietzikoski, 841 S.W.2d 101 (Tex. App.--Waco 1992, writ denied) (On application for writ of error, the record demonstrated that the putative father waited four years after the birth of the child before he sought to establish paternity and only after the mother called off the affair).

6. Where, as in this case, the putative father has no relationship with the child, his biological relationship to the child alone is insufficient to give rise to a fundamental constitutional interest. See Stanley, 405 U.S. at 657-58.

JUSTICE DOGGETT delivered the opinion of the Court, in which CHIEF JUSTICE PHILLIPS,1 JUSTICE GONZALEZ, JUSTICE HIGHTOWER, JUSTICE GAMMAGE, and JUSTICE SPECTOR join.

The opinion of June 30, 1993 is withdrawn and the following is substituted. In this case we consider whether, under the Texas due course of law guarantee, a biological father may be denied an opportunity to establish his paternity and claim parental rights.

While living together in 1988, Larry G. and Judy T. conceived a child later named J.W.T. Though still married to Randy T., Judy had planned to marry Larry after resolution of her pending divorce. Judy and Larry together arranged for prenatal care with a local clinic in a contract acknowledging Larry's paternity. Pursuant to that agreement Larry made several payments for obstetric treatment.

Judy and Randy later reconciled and dismissed their divorce action. Before the child's birth, Larry brought an action under the Texas Family Code alleging that he was the father of J.W.T., acknowledging responsibility for child support payments, and requesting a judicial declaration of paternity and recognition of his visitation rights. After the birth, Larry unsuccessfully attempted to maintain contact with J.W.T. Under court order, the parties submitted to scientific paternity testing, which showed a 99.41% probability that Larry was J.W.T.'s biological father.

Accepting the contention of Randy and Judy that Larry lacked standing under the Texas Family Code to bring any action relating to J.W.T., the trial court rejected Larry's assertion of constitutional rights and dismissed his claim. The court of appeals reversed, determining that Section 11.03(a)(7) of the Texas Family Code, under which Larry was denied standing to sue, violated the due course of law guarantee contained in article I, section 19 of the Texas Constitution. 815 S.W.2d 863. We affirm the judgment of the court of appeals.

I.

Critical to this appeal is an understanding of the various provisions of the Texas Family Code that affect a putative father's ability to establish parental rights. If, when a child is born, the mother is married to someone other than the biological father, her husband is "presumed" to be the child's actual father, and this "marital presumption" may not be attacked by any party outside the marriage except a government entity. See TEX. FAM. CODE §§ 12.02(a), 12.06(a) (Vernon Supp. 1994); In re M.R.M., 807 S.W.2d 779, 782 (Tex. App.--Houston [14th Dist.] 1991, writ denied).

Several provisions of the Code operate in tandem to prevent a man claiming to be a child's biological father from suing either to rebut the marital presumption or to claim parental rights by establishing his paternity. A biological father has standing to sue under the Family Code only if the child he claims has no presumed father, TEX. FAM. CODE § 11.03(a)(7);2 and the only type of action he may bring is a paternity suit under Chapter 13, which is limited to children who have no presumed father. Id.; TEX. FAM. CODE § 13.21(a).3 The marital presumption is irrebuttable in a Chapter 13 suit and, even under Chapter 12, only the husband or wife may deny the husband's paternity of a child born during their marriage. TEX. FAM. CODE § 12.06(a).4

Thus, a biological father of a child with a presumed father is given the opportunity for a hearing before a court to establish parental rights only at the request of another party; he may not himself initiate such proceedings. With Randy's paternity of J.W.T. denied by neither Judy nor himself, Randy remains the legally recognized, "presumed" biological father. Under the provisions of the Family Code, Larry is completely barred from asserting his paternity and claiming any relationship with his apparent natural son, J.W.T.

II.

Relying on both his biological connection with and actions to accept responsibility for J.W.T., Larry contends that the Family Code's denial of his parental rights violates the command of Article I, section 19 of the Texas Constitution that:

No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.

Under this provision, Larry seeks an opportunity to prove paternity5 and to obtain a judicial declaration entitling him to both the rights and the obligations of a "parent." As a "parent," Larry could be appointed a managing or possessory conservator of J.W.T., unless shown not to be in J.W.T.'s best interest. See TEX. FAM. CODE §§ 14.01, 14.03. If appointed, Larry would be invested with all of the parental rights recognized by the Family Code, except those that the trial court orders are to be exercised exclusively by Judy, including direction of the child's moral and religious training, management of his estate, access to his services and earnings, right to consent to his marriage or participation in the military, and representation of the child in any legal action. Id. §§ 12.04, 14.04, 14.02.

A declaration of paternity would also impose parental duties, including that of financial support and provision for the child of clothing, food, shelter, medical care, and education, as well as contribution to the mother's pre- and post-natal health care expenses. Id. § 13.42, 12.04. These duties may be forced upon Larry regardless of whether he attempts to exercise any concurrent rights of parenthood6 -- a paternity suit may be brought at any time by a number of other interested parties whose standing to sue does not depend on the absence of a presumed father. See, e.g., In re S.C.V., 750 S.W.2d 762 (Tex. 1988) (mother's suit to enforce child support against biological father of child born during her marriage to another man).

Of all the parties granted standing under the Code, only an alleged biological father's standing depends on the absence of a presumed father. See TEX. FAM. CODE § 11.03(a); 13.01. The State, for example, has standing to enforce parental obligations against the biological father of a child born with a presumed father; it can disestablish the presumed father's paternity, introduce evidence to rebut the marital presumption, and institute a Chapter 13 paternity suit against the biological father. Id. § 12.06; see Attorney General of Texas v. Lavan, 833 S.W.2d 952 (Tex. 1992). In short, Larry asks why he cannot assume for himself a responsibility that can be imposed on him by the State, his child, or that child's mother.

III.

Acceptance of Larry's argument that the due course of law provision guarantees him an opportunity to prove paternity would have been highly improbable at the time of the ratification of our Texas Constitution in 1876. A paternity suit was not permitted in Texas at common law.7 Under English common law, an onerous burden of overcoming the marital presumption was designed to protect a child from the harsh consequences of a finding of illegitimacy, which included an inability to obtain support from the father or to inherit from either parent.8 A child could not be delegitimized by proof of the spouses' lack of access to one another if the husband was present "within the four seas" surrounding England at the time of conception, unless his impotence or sterility was proven.9 An evidentiary rule known as Lord Mansfield's Rule, first articulated in 1777,10 further prohibited either the husband or the wife from testifying about lack of access, thus requiring evidence or testimony from sources outside the marriage, which were more difficult to secure. Although widely criticized by legal scholars,11 this rule was generally embraced by the courts, and then gradually rejected in the twentieth century as the legal disabilities associated with illegitimacy diminished.12 See Kisthardt, supra note 8.

These conventions were recognized in Lane v. Phillips, 69 Tex. 240, 6 S.W. 610, 611 (Tex. 1887), in which this court observed with regard to the offspring of an unmarried man and woman who had lived together for twelve years:

while they are his children in fact, the rules of the common law refuse to recognize them as his children, to impose upon him the duties and obligations which the lawful father cannot avoid, or to confer upon them the right to support and parental care which the child begotten in wedlock has.

Though conceding that "the harshness of this rule had long been felt," the court went so far as to question the constitutionality of any statute "which [would] compel the father of an illegitimate child to support it or to contribute to its support." Id. Such an enactment

would most probably be held contrary to such constitutional provisions as provide for equality in public burdens, or would be held to be the exercise of an arbitrary power inconsistent with that relation between the state and the subject which all governments not thoroughly despotic recognize . . . . The common law, for reasons of public policy, refused to enforce [a father's duty to support his illegitimate offspring]; it would be difficult to justify a law enforcing or imposing a personal obligation upon the sole ground that its enforcement would compel the performance of a merely moral duty.

Id.13 Having "recognized his natural and moral obligation" of support, the father, together with the children and their mother, were nevertheless held to have "constituted such a family as entitled to the homestead exemption." Id. at 612.

Despite the harsh rules governing the legal relationship between illegitimate children and fathers, the court nonetheless conferred a right upon a father who assumed the obligations of parenthood. This link of the rights and responsibilities of parenthood is reflected in recent family law developments.

IV.

Significant twentieth century changes in the resolution of issues affecting the family are reflected in statutes, demographics, alteration of social attitudes toward illegitimate children, and decisions of the Texas courts. With the enactment of the Texas Family Code in 1973, a method was statutorily afforded a putative father to establish his paternity voluntarily. See Paul Knisely & Broadus Spivey, Paternity Determinations in Texas: Five Years Under Chapter 13 of the Texas Family Code, 20 S. Tex. L.J. 465, 465 (1979). Adoption in 1975 of an involuntary paternity action, by which others could enforce parental duties upon biological fathers, finally secured the right of illegitimate children to obtain paternal support, as mandated in Gomez v. Perez, 409 U.S. 535, 93 S. Ct. 872, 35 L. Ed. 2d 56 (1973).14 See Ernest E. Smith, Illegitimate Children and Their Fathers: Some Problems with Title 2, 5 Tex. Tech L. Rev. 613, 614 (1974); History of the Texas Family Code, 5 Tex. Tech L. Rev. 267, 268 (1974). The new statutory paternity action applied, however, only with regard to those children born to an unwed mother, and the marital presumption was codified without any mechanism for its rebuttal. See § 12.02, Act of June 15, 1973, 63rd Leg., R.S., ch. 543, 1973 Tex. Gen. Laws 1420.

After paternity suits became statutorily available, this court overruled its prior recognition of Lord Mansfield's Rule. Davis v. Davis, 521 S.W.2d 603 (Tex. 1975). Because an illegitimate child had rights vis-a-vis the true biological father, attempts to preserve the fiction that the mother's husband was the father no longer necessarily protected the child's best interest:

Rules that exclude evidence bearing directly on the truth to be determined ought not to survive without very good cause. . . . Some courts have said that the Rule is required for the protection of the child. This may or may not be its consequence. It may be harmful to the interest of the child.

Id. at 607.

Under Davis, however, the marital presumption continued to bar delegitimization absent testimony regarding non-access or sterility. If married and living together as husband and wife, neither spouse could rebut the marital presumption, not even with scientific evidence of another's paternity. See Clark v. Clark, 643 S.W.2d 795 (Tex. App.--Fort Worth 1982, no writ); Magana v. Magana, 576 S.W.2d 131 (Tex. Civ. App.--Corpus Christi 1978, no writ). Not until 1983 was the husband/presumed father statutorily permitted, under Section 12.06 of the Family Code, to deny paternity of a child born to his wife during their marriage, and to seek court-ordered blood testing to disprove paternity. See Act of Sept. 1, 1983, 68th Leg., R.S., ch. 424, § 7, 1983 Tex. Gen. Laws 2355. In 1987, the same right was accorded the wife. See Act of June 18, 1987, 70th Leg., R.S., ch. 689, § 5, 1987 Tex. Gen. Laws 2548. Though now considered a limitation on attempts to disestablish presumed paternity,15 Section 12.06 was initially deemed "the destruction of the nearly irrebuttable presumption of legitimacy," and hailed as "enthroning science as the supreme arbiter" of paternity. John J. Sampson, Title 2. Parent and Child, 1986 TEXAS FAMILY CODE SYMPOSIUM, 17 Tex. Tech L. Rev. 1065, 1151 (1986). Permitting the scientific truth about paternity to govern the legal relations between the real people affected by court rulings promoted certainty and stability:

Once the subject has been broached, the only way that the parties will ever function on a reasonably civilized basis is to settle once and for all whether the husband indeed is the father of the child. After doubt has arisen on that question, the chance for compliance with child support orders, the establishment of a reasonable parent-child relationship between the to-be ex-husband and the child, and all the other innumerable aspects of the relationship are contingent on the man's knowledge of the truth regarding his suspicion.

Id.

Married parents separate, live with others, divorce, and remarry--sometimes each other. More than one quarter of the children in this country are born to unmarried mothers, and with the prevalence of divorce, an even greater proportion of children live in households in which one or both of their natural parents are absent. See STATISTICAL ABSTRACT OF THE UNITED STATES 69, 54 (1992). These trends remain a part of the social structure within which our judicial system operates.16

The Texas Family Code no longer employs the term "illegitimacy." See Act of Sept. 1, 1989, 71st Leg., R.S., ch. 375, 1989 Tex. Gen. Laws 1477-87 (adopting "child who has no presumed father" to replace the term "illegitimate child" throughout the Family Code). Nor do we require Family Code legitimation as a prerequisite to a child seeking recovery for the loss of a natural father. Garza v. Maverick Market, Inc., 768 S.W.2d 273 (Tex. 1989).

Human physiology has not changed, but our understanding of it has. Current methods of scientific testing provide more reliable and less intrusive means of determining paternity. Under the current Family Code, the court is required to order the mother, alleged father, and child to submit to scientifically accepted paternity testing that excludes at least 99% of the male population from the possibility of parentage. TEX. FAM. CODE § 13.02 (Vernon Supp. 1994). And advances in genetic testing techniques can accommodate this requirement. See Margery W. Shaw & Miriam Kass, Illegitimacy, Child Support, and Paternity Testing, 13 Hous. L. Rev. 41, 52 (1975).

V.

We have recognized the adaptability to such changes of our state's fundamental governing law and found considerable strength in the organic nature of its command. Davenport v. Garcia, 834 S.W.2d 4, 19 (Tex. 1992, orig. proceeding).

In asserting a due course of law claim, Larry must establish that his interest is constitutionally protected. See Tarrant County v. Ashmore, 635 S.W.2d 417, 422 (Tex. 1982)(extending due course protection to interest of official in elected position); see also Rogers v. Texas Commerce Bank - Reagan, 755 S.W.2d 83 (Tex. 1988) (per curiam) (deprivation of rights without hearing violates art. I, § 19); Kramer Trading Corp. of Texas v. Lyons, 740 S.W.2d 522, 524 (Tex.App.--Houston [1st Dist.] 1987, no writ) (protecting constitutional right under art. I, § 19).

In previous decisions, we have accorded great respect for the biological bond between parent and child. In Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976), we recognized that "the natural right which exists between parents and their children is one of constitutional dimensions." Accord Holick v. Smith, 685 S.W.2d 18, 20-21 (Tex. 1985); In re G.M., 596 S.W.2d 846 (Tex. 1980). Similarly, in Gunn v. Cavanaugh, 54 Tenn. App. 393, 391 S.W.2d 7 (Tex. 1965), we declared that

the rights of the natural parent are of high importance and due process properly requires that the burden of proof to show forfeiture of parental rights rests upon [whomever challenges those rights].

We have nonetheless tempered these decisions by recognizing that the rights of natural parents are not absolute; protection of the child is paramount. See id. The rights of parenthood are accorded only to those fit to accept the accompanying responsibilities. See, e.g., TEX. FAM. CODE § 14.03(d) (parental visitation may be refused when such would "endanger the physical or emotional welfare of the child").

To determine the extent of procedural rights to which a biological father is entitled, we must consider the public interest in protecting the child along with the father's constitutional interest in establishing a relationship with his child. In a situation such as that presented here where the biological father does assert his interest17 near the time of the child's birth,18 standing is constitutionally mandated if he both 1) acknowledges responsibility for child support or other care and maintenance, and 2) makes serious and continuous efforts to establish a relationship with the child. In In re K., 535 S.W.2d 168, 171 (Tex. 1976), we noted the presence of a

[genuine public] interest in securing stable homes and supportive families for children, [in] distinguishing between the father who has accepted the legal and moral commitment to the family and the father who has not done so.

This emphasis on the father's commitment to parental duties is consistent with that reached under the due process provision of the Louisiana Constitution. See In re Adoption of B.G.S., 556 So. 2d 545 (La. 1990). There, the court explained that

this [constitutional] interest does not come into existence or is soon lost, however, if the father is unable to demonstrate that he is fit and committed to the responsibilities of parenthood. Moreover, he must show that he has taken concrete actions to grasp his opportunity to be a father and that there is a potential for him to make a valuable contribution to the child's development. Consequently, the mere existence of a biological link and fitness will not sustain the father's interest; it is defeasible if not preserved by dedicated, opportune fatherly action.

Id. at 550.19

To permit proof of such an interest, Texas courts have sought to ensure a fair hearing to a putative father. As we concluded in In re K. :

the biological father of an illegitimate child [has] the opportunity to prove which category [accepting commitment or not accepting responsibility for the child] in which he falls and to show that he should not be treated differently from fathers legally committed to the mothers of their children. Thus [the putative father] sought and received a fair hearing.

535 S.W.2d at 171. Similarly, in Rogers v. Lowry, 546 S.W.2d 881, 884 (Tex. App.--Houston [1st Dist.] 1977, orig. proceeding), the court held that: "[A] child's biological father has such a substantial interest in the [adoption] proceeding that due process requires he be afforded notice and an opportunity to be heard." See also In re C.D.V., 589 S.W.2d 543, 547 n.3 (Tex. Civ. App.--Amarillo 1979, no writ) (to avoid due process implications, preferable to provide notice of adoption proceedings to biological father). While these cases recognized only the importance of providing due process to fathers of illegitimate children, we conclude that the right to be heard does not cease merely because the mother is married. While federal jurisprudence may be useful in understanding our state constitutional guarantees, see Davenport, 834 S.W.2d at 20, the help on the question presented here is limited by the sharp divisions present in the consideration of a claim similar to Larry's in Michael H. v. Gerald D., 491 U.S. 110, 105 L. Ed. 2d 91, 109 S. Ct. 2333 (1989).20 Michael H., the putative father, challenged the conclusive presumption created by a California statute that a man cohabiting with his wife was the biological father of a child born during the marriage. Id. 491 U.S. at 119-20. Notwithstanding both his biological fatherhood and participation in rearing his daughter, Michael H. was found by a four-member plurality to possess no interest deserving constitutional protection,21 despite recognition by the other five members of the Court22 that this holding was in apparent conflict with recent application of the federal Due Process clause to biological fathers. Id. at 133 (Stevens, J., concurring); id. at 142 (Brennan, J., dissenting); id. 491 U.S. at 158-59 at 129 (White, J., dissenting) (citing Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972)); Caban v. Mohammed, 441 U.S. 380, 60 L. Ed. 2d 297, 99 S. Ct. 1760 (1979)); see also Note, Rebutting the Marital Presumption: A Developed Relationship Test, 88 Colum. L. Rev. 369, 379 (1988) (predicting, prior to Michael H., that a statute creating an irrebuttable presumption would violate the federal due process rights of a putative father).

Michael H. was, consequently, considered an aberration -- "the plurality's departure" from previous federal decisional law -- by the Louisiana Supreme Court in In re Adoption of B.G.S., 556 So. 2d at 549-50 n.2, and is perhaps best described in Justice Brennan's dissent:

The atmosphere surrounding today's decision is one of make-believe. Beginning with the suggestion that the situation confronting us here does not repeat itself every day in every corner of the country, moving on to the claim that it is tradition alone that supplies the details of the liberty that the Constitution protects, and passing finally to the notion that the Court always has recognized a cramped vision of "the family," today's decision lets stand California's pronouncement that Michael--whom blood tests show to a 98 percent probability to be Victoria's father--is not Victoria's father. When and if the Court awakes to reality, it will find a world very different from the one it expects.

Michael H., 491 U.S. at 128 (Brennan, J., dissenting); see also In re Adoption of Kelsey S., 1 Cal. 4th 816, 823 P.2d 1216, 1228 (Cal. 1992) (stating "we must not read too much into Michael H.," and relying on that case for the proposition that five justices recognized unwed father's liberty interest). It is wholly under our Texas due course of law guarantee, which has independent vitality, separate and distinct from the due process clause of the Fourteenth Amendment to the U.S. Constitution,23 that we reach today's decision.

VI.

Randy and Judy insist that Larry's right to be heard may be statutorily denied. They argue that, by prohibiting an alleged biological father from asserting his paternity, the Family Code protects the marital unit from intrusion by outsiders and protects the child from delegitimation. The State has a legitimate interest in minimizing familial disruptions that are harmful to the child. But as the court of appeals observed, this marital unit was clearly disrupted before Larry ever filed this suit:

that the biological mother, for whatever reason, has chosen to engage in sexual relations outside of marriage is proof itself that the "integrity and solemnity of the family unit" has been damaged at least to some degree. [Resolution of these difficulties by the husband and wife] does not, we feel, give license to the state to perpetuate the myth of "presumption of paternity" so as to deprive the biological father of at least a chance of being able to exercise those rights, duties, privileges, and responsibilities that all civilized societies have recognized to be fundamentally ingrained in the concept of parenthood.

815 S.W.2d at 869.

Perhaps this asserted interest had merit in an earlier era when the true biological father could not be established with near certainty and when illegitimacy carried a significant legal and social stigma. Since this is no longer the case,24 the focus should more properly be directed toward what is best for the child -- it may be in best interest of the child to allow development of a relationship with the natural father and it may not.25 The effect of the alternative offered by the dissenting justices is to leave this determination of the child's best interest and the definition of family, itself, exclusively to the biological mother. In the name of protecting the family, Justice Enoch would grant rights to putative fathers who had been permitted by the mother to develop a relationship with the child but not to those not afforded that opportunity. S.W.2d at n.5. (Enoch, J., dissenting).

To Justice Enoch, Larry is only "a stranger to the marriage into which the child is born," id. at , despite having lived with the mother during the marriage, as well as their mutual arrangements for prenatal care. This relationship is morally judged, rather than legally judged, being dismissed as a mere "dalliance," id. at n.1, without explaining why the rights accorded to one participant in their relationship should overwhelm those of the other. The father is a "stranger," if that term has any relevancy to this issue, only in so far as the statutory law has traditionally deprived him of rights.

We do not say that our Constitution guarantees every natural father ties with his illegitimate offspring.26 We do say that one who is arbitrarily prevented from attempting to establish any relationship with his natural child, after making early and unqualified acceptance of parental duties as Larry has done, is denied due course of law under section 19 of our Texas Bill of Rights. Those provisions of the Family Code that bar Larry's pursuit of his parental rights violate our constitutional guarantee that every Texan shall be accorded due course of law. We, therefore, hold unconstitutional Section 11.03(a)(7) and 12.06(a) to the extent that they wholly deny a putative father's standing to sue with regard to a child who has a presumed father, and prevent the bringing of any suit affecting the parent-child relationship in which a presumption of paternity may be rebutted.27

The judgment of the court of appeals is affirmed and this cause is remanded to the trial court for further proceedings consistent with this opinion.

Lloyd Doggett

Justice

Opinion Delivered: February 2, 1994.

JUSTICE HECHT, concurring.

I agree with the Court that a father's interest in his child is so fundamental an aspect of individual liberty that it cannot be denied by the State except by due course of law, as guaranteed by article I, section 19 of the Texas Constitution. It seems to me almost intuitive that in a free society the State cannot deny a man all right to his child without due process, and I should have thought this principle "too clear for dispute", Michael H. v. Gerald D., 491 U.S. 110, 139, 105 L. Ed. 2d 91, 109 S. Ct. 2333 (Brennan, J., dissenting), but for the dissenting opinions in this case. To dispel the doubt they raise whether parenthood is a constitutionally protected interest, the authorities on which the Court relies to find this interest are more than persuasive.

In the past, the law did not as a rule recognize the right of parenthood in a man who claimed to be the father of the child of a married woman. The reason, it seems to me, was merely that until recently it was impossible to determine the validity of such claims to any acceptable degree. Advancements in medical technology which can often predict, almost to a certainty, whether a man's claim of paternity is valid remove that hindrance to acknowledging the right of parenthood. The right is not, of course, absolute. A father cannot assert his interest if he has obtained it by force, that is, by rape, or by fraud or other wrongdoing. Such circumstances are governed by the ancient maxim: nullus commodum capere potest de injuria sua propria. Also, the interest can be terminated by the father voluntarily, as in the case of adoption, and against the father involuntarily, as when he is adjudicated to have knowingly endangered the child's well-being.

Acknowledging the right of a biological father in such circumstances does not preclude the existence of other equal rights. I should have thought it manifest that the "sanctity of the family . . . is [so] deeply rooted in this Nation's history and tradition", id. at 106 (Scalia, J., plurality), that the interests of its members in preserving its unity are also constitutionally protected. Any doubt cast upon the existence of such interests by the Court's failure to acknowledge them is completely dispelled by authorities cited by JUSTICE ENOCH.

Thus, it seems to me that two constitutionally protected interests are involved in this case -- parenthood and preservation of the family -- and they are in conflict. The State has chosen to resolve this conflict by denying the biological father of a child who has a presumed father any standing to assert his interest. In all such circumstances, the family interest is made paramount by statute. I agree with the Court that the State has no reason or purpose sufficient to deny every biological father the right to assert his interest in a child simply because there is a presumed father. When a biological father acknowledges his responsibility to help support the child and has made every reasonable effort to establish a relationship with the child, he is entitled to assert his interest in the child, notwithstanding the opposition of the mother and her husband.

He is not, however, necessarily entitled to prevail in his assertion. I agree with the Court that in determining what rights a biological father may have in his child, the best interest of the child must be considered. I do not agree with the implication in the Court's opinion -- it is really only an implication and nothing more -- that the best interest of the child is the only, or always the paramount, consideration. The interests of the mother and her husband in preserving their family unit exclusive of the biological father are equal in dignity to the biological father's interest and entitled to equal consideration. Such interests are especially important when the best interest of the child is unclear. For example, when it appears that a child would do as well or better with his biological father as with his mother and her husband, should the biological father be allowed visitation if his continued presence in the child's life would almost certainly imperil the stability of the mother's marriage? I suspect this situation is commonplace, and I cannot see how consideration of the best interest of the child alone supplies the solution.

The Court does not exclude family interests from consideration in determining what rights should be awarded a biological father. I presume therefore that such interests can and should be fully considered. With this understanding, I concur in the judgment of the Court.

Nathan L. Hecht

Justice

Opinion DELIVERED: February 2, 1994

ING OPINION

The question in this case is not whether a man who alleges himself to be the biological father of a child born during the marriage of the mother to another man will be entitled to parental rights to the child. The question is whether this stranger to this marriage1 has a constitutionally protected interest that entitles him to challenge and petition in the first instance for paternity of a child born into that marriage, despite the fact that neither the mother, the presumed father, nor the child have disputed the presumed father's paternity. In so holding, the Court concludes that sections 11.03(a)(7) and 12.06(a) of the Texas Family Code, which do not permit a putative father to petition for paternity where the mother is not unwed, violate the due course of law guarantee of the Texas Constitution. TEX. CONST. ART. I, § 19. Under the guise of denial of procedural due course of law, the Court is in fact creating a substantive due course of law interest in favor of an putative biological father to challenge paternity and obtain parental rights in derogation of the right of the marital family to protect its children from claims of illegitimacy by outsiders. With this action, I cannot agree. I dissent.

A putative biological father who claims parental rights to a child and who is also a stranger to the marriage into which the child is born does not have a common law, statutory, or constitutional interest that is protected by the Texas Constitution. At common law, a putative biological father could not bring an action for paternity. See Home of the Holy Infancy v. Kaska, 397 S.W.2d 208 (Tex. 1965); L.G. v. F.O.P., 466 S.W.2d 41 (Tex. Civ. App.--San Antonio 1971, writ ref'd n.r.e.), rev'd per curiam, Gomez v. Perez, 409 U.S. 535, 35 L. Ed. 2d 56, 93 S. Ct. 872 (1973). A putative biological father has only those rights conferred by the Texas Family Code. Section 11.03 of the Family Code provides that a putative biological father may bring a suit to establish paternity only of a child who has no presumed father, but not otherwise. TEX. FAM. CODE ANN. § 11.03(A)(7). Because the putative biological father had no right at common law to maintain an action for paternity in any circumstances, the enactment of section 11.03 did not deprive him of any existing procedural remedy. Accordingly, the only question is whether a putative biological father who is a stranger to a marriage has a constitutionally created and protected interest to challenge and petition for paternity of a child born into a marriage.

The cases relied on by the Court in recognizing a constitutionally protected interest in favor of a putative biological father are not applicable. None of the cases cited by the Court involved a situation in which a stranger to a marriage sought the right to challenge and establish paternity of a child born into the marriage when neither the parties to the marriage nor the child were disputing the paternity of the child.

In reaching its decision, the Court also rejects a United States Supreme Court holding directly on point. In Michael H. v. Gerald D., 491 U.S. 110, 105 L. Ed. 2d 91, 109 S. Ct. 2333 (1989), the Supreme Court held that a putative biological father was not deprived of any due process rights by a state statute that prevented him from petitioning to establish his paternity of a child born into a marriage. The Court dismisses Michael H. as an "aberration."2 S.W.2d at . To the contrary, Michael H. simply reflects a determination that not all parental-related rights are to be given the same stature and constitutional import, a distinction which this Court fails to recognize. For example, in Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), the United States Supreme Court afforded constitutional recognition and due process protection to a putative biological father who had "sired and raised" his children born out of wedlock. There, the Supreme Court held unconstitutional a statute that automatically placed children as wards of the state upon the death of their unwed mother without a hearing of fitness of the unwed father or proof of neglect. 405 U.S. at 658. The natural father who had lived with and raised the children claimed that the statute violated his due process rights. Although discussed in terms of the individual right of Mr. Stanley, the interest protected in Stanley is clearly an interest in preserving integrity of the family unit.3 Id. at 651. The interest protected in Stanley is far different from the interest claimed by a putative biological father who challenges the paternity of a child born into a marriage and who is in the eyes of the law and, in actuality, a stranger to the marriage and to the child.

Although this Court is not bound by the decisions of the United States Supreme Court in construing the due course of law provision of the Texas Constitution, I find the decisions of the United States Supreme Court, and in particular, Michael H., instructive and persuasive. See also Jack v. Jack, 796 S.W.2d 543 (Tex. App.--Dallas 1990, no writ). Even assuming that our due course of law provision is broader and protects interests not protected by the Due Process Clause of the United States Constitution, I find nothing in the jurisprudence of this State to suggest that Texas has traditionally protected and recognized the interests of an adulterous putative father to establish and obtain parental rights over the objection of the mother and presumed father and to the derogation of the marital family's right to protect its children from claims of illegitimacy by outsiders. Accordingly, I would conclude that Larry G., the putative biological father, does not have a constitutional interest protected under Article I, section 19 of the Texas Constitution to challenge and petition for paternity of a child born into a marriage between a woman and another man, and consequently, he has not been deprived of due course of law by sections 11.03(a)(7) and 12.06(a) of the Texas Family Code.

Even if Larry G. has a constitutionally cognizable interest, the Court ignores a powerful countervailing interest, the family's right to be free from unwanted interference and disruption by state sanctioned attempts to delegitimize the children of a marriage.4 See Moore v. City of East Cleveland, 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) (recognizing and detailing history of constitutional protection for sanctity of family from unwanted intrusion absent compelling state interest). In Stanley, supra, the United States Supreme Court held that a putative biological father's interest warranted due process protection "absent a powerful countervailing interest." Stanley, 405 U.S. at 651. Contrary to Stanley, in which Stanley's individual interest was synonymous with preservation of the family, the family interest in this case is a powerful countervailing interest; an interest which promotes the marital relationship, preserves intact and protects an existing family from disruption and interference by external forces, and protects the child from confusion, torn affection, and the stigma of illegitimacy. See Moore, 405 U.S. at 499-500. See A v. X, Y, and Z, 641 P.2d 1222 (Wyo. 1982); Petitioner F. v. Respondent R., 430 A.2d 1075 (Del. 1980).

In failing to recognize the significant countervailing constitutional interests of the family to be free from unwanted interference and attack by strangers, the Court has rendered the putative biological father's right to petition for paternity absolute and superior to any rights of the family. To give constitutional weight to the interests of a stranger, albeit the putative biological father, without regard to the interests of the family and the state in protecting the family would invite actions by persons whose only purpose is to break up the family to satisfy a jealous or revengeful feeling.5 Where a child is born into a marriage, there are contradictory interests between the putative biological father and the family. The state cannot afford both the putative biological father and the family absolute interests. In the provisions of the Texas Family Code, the state has given preference to the interests of the family to be free from unwanted and disruptive interference.

Because the nature of the interest sought to be protected by the Court in favor of putative biological fathers is in reality a substantive due process interest rather than a procedural due process right, the interest is not absolute. Sections 11.03(a)(7) and 12.06(a) do not impinge on a putative biological father's substantive due process interest if they are rationally related to a legitimate state interest.6 TEX. CONST. ART. I, § 19, commentary. I would hold that the legislature's preference for the interests of the family are rationally related to the state's interest in protecting and promoting the interests of the existing marriage and family unit and that sections 11.03(a)(7) and 12.06(a) of the Texas Family Code do not violate the due course of law guarantee of the Texas Constitution.

I would reverse the judgment of the court of appeals and affirm the trial court judgment.

Craig Enoch

Justice

Opinion DELIVERED: June 30, 1993

1. CHIEF JUSTICE PHILLIPS DOES NOT, HOWEVER, JOIN IN NOTE 23 OF THIS OPINION.

2. Section 11.03. Who May Bring Suit (a) An original suit affecting the parent-child relationship may be brought at any time by: (7) a man alleging himself to be the biological father of a child who has no presumed father filing in accordance with Chapter 13 of this code, but not otherwise. . . ." (Emphasis added).

3. Section 13.21. Voluntary Paternity (a) If a statement of paternity has been executed by a man claiming to be the biological father of a child who has no presumed father, he, the mother of the child, or the child . . . or a governmental entity may file a petition for a decree adjudicating him as a parent of the child. . . . (Emphasis added).

4. Section 12.06. Denial of Paternity (a) In any suit affecting the parent-child relationship, other than a suit under Chapter 13 of this code, a husband or wife is entitled to deny the husband's paternity of the child who is the subject of the suit and who was born or conceived during the marriage of the parties. The question of paternity under this section must be raised by an express statement denying paternity of the child in the spouse's pleadings in the suit, without regard to whether the spouse is a petitioner or respondent. (Emphasis added).

5. Procedurally, this case is unusual in that the factual foundation for establishing paternity was confirmed by court ordered blood tests before the trial court determined that the biological father lacked standing. In contrast, we contemplate a blood test only after a showing at an initial hearing by the putative father that he has met the standard announced in this writing.

6. Indeed, the presumed father may relieve himself of any of his currently accepted parental obligations at any time by successfully denying his paternity of J.W.T. in a suit under Chapter 12. While now adamantly assuming those burdens, Randy has a ready escape if he ever chooses to discontinue providing for a child that is not his own.

7. See Home of the Holy Infancy v. Kaska, 397 S.W.2d 208 (Tex. 1965); L.G. v. F.O.P., 466 S.W.2d 41 (Tex. Civ. App.--San Antonio 1971, writ ref'd n.r.e.), rev'd per curiam, Gomez v. Perez, 409 U.S. 535, 93 S. Ct. 872, 35 L. Ed. 2d 56 (1973).

8. See, e.g., Mary Kay Kisthardt, Of Fatherhood, Families and Fantasy: The Legacy of Michael H. v. Gerald D., 65 Tul. L. Rev. 585, 588 (1991) (citing Earle v. Da wes, 3 Md. Ch. 230 (1886)); Deborah J. Veneziah, The Rights of an Illegitimate Child Post- Gomez v. Perez: A Legitimate Situation?, 12 ST. MARY'S L.J. 199, 200-01 (1980); HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 174 (2d ed. 1988) (citing Moncrief v. Ely, 19 Wend. 405 (N.Y. 1838); Allen v. Hunnicutt, 230 N.C. 49, 52, 52 S.E.2d 18 (1949). Contra Doughty v. Engler, 112 Kan. 583, 211 P. 619 (1923)). Although no common law action was available against the father of an illegitimate child, certain quasi-criminal procedures could be brought for support. See CLARK, supra., at 174 (citing Helmholz, Support Orders, Church Courts, and the Role of Filius Nullius: A Reassessment of the Common Law, 63 Va. L. Rev. 431 (1977) and Helmholz, Bastardy Litigation in Medieval England, 13 Am. J. Legal Hist. 360 (1969)). These procedures were not, however, made a part of the legal heritage brought to this country from England. Id. at 174.

9. See Kisthardt, supra note 8, at 589.

10. See Goodright v. Moss, 2 Cowper 291, 98 Eng. Rep. 1257 (1777).

11. See MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH-CENTURY AMERICA 220 (1985) ("Critics had attacked the doctrine barring spousal testimony on sexual access as inconsistent and unfair from the first days of the republic. . . . John Wigmore . . . condemned [the rule] as absurd and unwise . . . .").

12. In addition to the right to financial support from the biological father, see Gomez v. Perez, 409 U.S. 535, 93 S. Ct. 872, 35 L. Ed. 2d 56 (1973) (per curiam), an illegitimate child now also has a right to paternal inheritance, Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), even though the father's paternity has not been established prior to death. Dickson v. Simpson, 807 S.W.2d 726, 728 (Tex. 1991). An illegitimate child also has a right to share in proceeds of a wrongful death or worker's compensation claim for the death of its father. See Levy v. Louisiana, 391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 2d 436 (1968); Weber v. Aetna Casualty, 406 U.S. 164, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972). In Garza v. Maverick Market, Inc., 768 S.W.2d 273 (Tex. 1989) and Brown v. Edwards Transfer Co., 764 S.W.2d 220 (Tex. 1988), we refused to engraft onto the Wrongful Death Act the somewhat onerous requirements for establishing paternity set forth in either the Probate or Family Codes.

13. The very kind of statute, which this court thought probably unconstitutional in 1887, is today a mainstay in the state's efforts to reduce the welfare rolls by enforcing child support obligations against irresponsible parents. TEX. HUM. RES. CODE §§ 76.001-.008.

14. This decision represents one of the major developments in the evolution of the rights of illegitimate children. See Paul Knisely & Broadus Spivey, Paternity Determinations in Texas: Five Years under Chapter 13 of the Texas Family Code, 20 S. Tex. L.J. 465, 468 (1979). Today, all states provide some method for compelling fathers to support their illegitimate children. CLARK, supra note 8, at 174-75.

15. Section 12.06, which had permitted only the husband and wife to deny the presumed father's paternity, was the converse of Lord Mansfield's Rule, which barred both spouses from denying paternity and required the testimony of outsiders to rebut the presumption of legitimacy. Compare In re M.R.M., 807 S.W.2d 779 (Tex. App. -- Houston [14th Dist.] 1991, writ denied) with Pinkard v. Pinkard, 252 S.W. 265 (Tex. Civ. App. -- Beaumont 1923, no writ). Section 12.06 has now been amended to permit the State to deny the presumed father's paternity. Act of June 16, 1993, 73rd Leg., R.S., ch. 730, § 3, 1993 Tex. Gen. Laws 2866.

16. Some of these interests have been statutorily protected. As "a person who has had actual possession and control of the child for at least six months immediately preceding the filing of the petition," a stepparent, or a disestablished presumed father, now has standing to sue under Section 11.03(a)(8), and "a grandparent or other person deemed by the court to have had substantial past contact with the child sufficient to warrant standing" may intervene in a suit pursuant to Section 11.03(c). These non-parents are not, however, subject to a duty of support. See Mata v. Moreno, 601 S.W.2d 58, 59 (Tex. Civ. App.--Houston [1st Dist.] 1980, no writ); Blalock v. Blalock, 559 S.W.2d 442 (Tex. Civ. App. -- Houston [14th Dist.] 1977, no writ). See generally Brenda J. Runner, Protecting a Husband's Parental Rights When His Wife Disputes the Presumption of Legitimacy, 28 J. Fam. L. 115 (1989).

17. Justice Enoch qualifiedly recognizes such an interest, but only if the biological father has actually established a relationship with a child. 872 S.W.2d at 202 n.5. (Enoch, J., dissenting). The difficulty with this view is that the very statutory provisions that we consider today enable the mother to entirely obstruct this relationship. Gender is the preeminent consideration for Justice Cornyn. While he would accord an adulterous married woman near absolute rights to her child, he believes that her adulterous male partner "has few if any rights." 872 S.W.2d at 213 (Cornyn, J., dissenting).

18. A delay by the biological father in asserting parental rights long after the child has established a relationship with the presumed father is certainly a factor a trial court should consider in balancing these interests.

19. Due process rights of a biological father were also recognized in In re Adoption of Kelsey S., 1 Cal. 4th 816, 823 P.2d 1216 (Cal. 1992); In re Lisa R., 13 Cal. 3d 636, 119 Cal. Rptr. 475, 532 P.2d 123, 90 A.L.R.3d 1017 (Cal. 1975); see also Slawek v. Stroh, 62 Wis. 2d 295, 215 N.W.2d 9 (Wis. 1974).

20. There were actually five opinions in this 4-1-4 split decision: A plurality opinion by Justice Scalia, joined in its entirety by Chief Justice Rehnquist and in part by Justices O'Connor and Kennedy; a separate concurrence by Justices O'Connor and Kennedy; a concurrence by Justice Stevens; and separate dissents by Justice Brennan, joined by Justices Marshall and Blackmun, and by Justice White, joined by Justice Brennan. See id.

21. Rather than ask whether parenthood is an interest that has traditionally received recognition and protection, Justice Scalia, as author of the plurality, assessed the historical support for "the right of the natural father of a child conceived within, and born into, an extant marital union that wishes to embrace the child." Id. at 127. Two of the four Justices joining his opinion, however, wrote separately to disapprove of that portion of the decision and to point out its inconsistency with the interpretive method employed in prior decisions under the Due Process Clause. See id. at 111 (O'Connor and Kennedy, JJ., concurring); see also Note, Michael H. v. Gerald D.: The Constitutional Rights of Putative Fathers and a Proposal for Reform, 31 B.C. L. REV. at 1201.

22. The disputed California statute was upheld because Justice Stevens concurred with the plurality, despite his disagreement with Justice Scalia's "rejection [of] 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." Id. 491 U.S. at 133 (Stevens, J., concurring). Justice Stevens "assumed for the purpose of deciding [the] case" that Michael's relationship with his daughter deserved due process protection, noting that recent cases, such as Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), and Caban v. Mohammed, 441 U.S. 380, 60 L. Ed. 2d 297, 99 S. Ct. 1760 (1979), "demonstrate that enduring 'family' relationships may develop in unconventional settings." He nevertheless found sufficient safeguard for Michael's interest in California's statutory authorization for trial court discretion in allowing anyone with an interest in a child to gain visitation rights. Id. 491 U.S. at 133. See Kisthardt, supra note 8, at 612. The Texas Family Code affords no comparable right. Section 11.03(c) permits a person "deemed by the court to have had substantial past contact with the child sufficient to warrant standing," a right of intervention in a suit filed by someone authorized to sue under subsections 11.03(a) or (b); by its terms this would exclude the putative father. Even though the tenuous coalition that produced a judgment in Michael H. might well have decided the instant case differently than Justices Cornyn and Enoch now suggest, speculating how another court would resolve this matter is hardly determinative of our decision.

23. As recognized in City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293, 71 L. Ed. 2d 152, 102 S. Ct. 1070 (1982): "The language of the Texas [due course] constitutional provision is different from, and arguably significantly broader than, the language of the corresponding federal provisions."

24. "The original reasons for the conclusive presumption of paternity are out of place in a world in which blood tests can prove virtually beyond a shadow of a doubt who sired a particular child and in which the fact of illegitimacy no longer plays the burdensome and stigmatizing role it once did." Michael H., 491 U.S. at 117 (Brennan, J., dissenting).

25. Status as a "parent" under the Family Code does not guarantee a relationship with the child. The trial court may refuse to award visitation if "it finds that parental possession or access is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child." TEX. FAM. CODE § 14.03(d).

26. Justice Cornyn expresses concern that four adoption agencies believe that "under this court's decision there is no impediment to a putative father asserting parental rights to a child who has been adopted." S.W.2d at . Yet this point was raised only in a single short amicus brief, as a rhetorical question about the decision of the court of appeals: If the current statutory scheme is invalidated, then what is to prevent an alleged biological father who has not relinquished his purported parental rights from coming forward to challenge the legal relationship between an adoptive father and his adoptive child and to disrupt the sanctity of the adoptive family? Such is the effect of the Beaumont court's invalidation of the Texas Family Code's restrictions on rebutting the paternity presumption. (emphasis added). An examination of the Family Code indicates that our decision does not jeopardize the adoption process. Once an adoption petition has been granted, a paternity suit is prohibited. TEX. FAM. CODE § 13.44. An alleged or probable father is entitled to notice prior to the termination of parental rights -- a prerequisite to a valid adoption. Id. §§ 15.023; 11.09(8); 16.03. But if, after receiving notice, the alleged father fails to respond by filing an admission of paternity, the Code specifically provides that his parental rights may be involuntarily terminated in order to complete an adoption. Id. § 15.023. Noncompliance with these provisions would certainly appear inconsistent with the requirement set forth here that the biological father demonstrate a prompt assumption of parental duties. An adoption decree may not in any event be attacked more than two years after it is entered. Id. § 16.12. During the extended period that this motion for rehearing has been pending, while the writings of others were being prepared, no adoption agency or any other person or entity has suggested to this Court that any of the horrors envisioned by Justice Cornyn comport with reality.

27. We therefore disapprove the contrary holding in Jack v. Jack, 796 S.W.2d 543 (Tex. App.--Dallas 1990, no writ).

1. The Court suggests that Larry G. is not a stranger to the marriage because he lived with the mother briefly when she had separated from her husband. Larry is certainly a stranger to the marriage in the plain and simple sense that he is not a party to the marriage. The fact that Larry may have lived with Judy for four months does not make Larry any less a stranger to the marriage. The Court's ruling today raises a dalliance to a constitutionally protected interest.

2. In the same breath that the Court rejects Michael H. as authoritative or dispositive on state Constitutional issues, the Court relies on another United States Supreme Court decision, Caban v. Mohammed, 441 U.S. 380, 389, n.7, 60 L. Ed. 2d 297, 99 S. Ct. 1760 (1978), to support its recognition under our state's Constitution of a constitutionally protected interest in favor of the putative father in this case.

3. In Michael H., the plurality specifically noted that Stanley and Caban rested upon the sanctity traditionally accorded to relationships that develop within the unitary family. 491 U.S. at 123.

4. The Court generally dismisses the family unit's interest in protecting its children from claims of outsiders because paternity can be determined with greater certainty through scientific testing. S.W.2d at . I would not consider the accuracy of scientific testing to be the basis either for diminishing the family's interests or promoting the putative biological father's rights to constitutional proportion. The Court specifically dismisses this family unit's entitlement to protection of its interest because of the mother's affair with the putative biological father when the couple had separated and filed for divorce. The Court's moralistic judgment is inappropriate, but more to the point, the question presented is not whether Larry will win his claim to parental rights (e.g., custody or visitation), the question is whether he has the right to challenge paternity in the first instance. The facts of this case are irrelevant to the question because they are not developed for the record until after the challenge is permitted to be made. In any event, in this case, the mother and the presumed father reconciled before the child's birth, have continued to live together as a married couple, and have embraced and raised the children born of their marriage as their own.

5. See, e.g., Henderson v. Wietzikoski, 841 S.W.2d 101 (Tex. App.--Waco 1992, writ denied) (On application for writ of error, the record demonstrated that the putative father waited four years after the birth of the child before he sought to establish paternity and only after the mother called off the affair).

6. Where, as in this case, the putative father has no relationship with the child, his biological relationship to the child alone is insufficient to give rise to a fundamental constitutional interest. See Stanley, 405 U.S. at 657-58.

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