Finnerty v. Boyett

• Decision Date: 08 May 1985
• Docket Number: No. 16781-CA,16781-CA
• Citation: 469 So.2d 287
• Parties: John FINNERTY, Plaintiff-Appellant, v. Janet Turner BOYETT, Defendant-Appellee. 469 So.2d 287
• Court: Court of Appeal of Louisiana — District of US

Page 287

469 So.2d 287

John FINNERTY, Plaintiff-Appellant, v. Janet Turner BOYETT, Defendant-Appellee.

No. 16781-CA.

469 So.2d 287

Court of Appeal of Louisiana,

Second Circuit.

May 8, 1985.

Waddell, Irvin & Thomas by Robert P. Waddell, Shreveport, for plaintiff- appellant.

W. Eugene Golden, Shreveport, for defendant-appellee.

Before HALL, FRED W. JONES, Jr., SEXTON, NORRIS and LINDSAY, JJ. ^*

HALL, Judge.

The central issue presented is whether a person, who alleges he is the biological father of a child born during the marriage of the child's mother to another man, has a right of action to establish his paternity for the purpose of seeking visitation when his child is presumed under LSA-C.C. Art. 184 to be the child of the mother's husband. In the present case, the trial court answered this question in the negative; we reverse.

On April 16, 1980, Janet Turner married John Boyett. John Boyett was aware at the time of the marriage that Janet was pregnant with another man's child. When the child, Casey Nicole, was born in October 1980, Boyett was listed as the father on the birth certificate.

In May 1983, John Finnerty filed a petition naming Janet Boyett as defendant. The petition requested that Finnerty be recognized as the natural father of the child, and that he be granted specific visitation privileges. In his petition Finnerty alleged that he was the child's father, that he had "acknowledged" the child since her conception, that the mother openly admitted that he was the father, that he had paid child support to the mother both before and after the child's birth, and that, until recently, he had been allowed regular visitation privileges.

Janet Boyett then filed an exception of no right of action. In her exception Mrs. Boyett stated that the child was born one hundred and eighty days after Mrs. Boyett's marriage, that Mr. Boyett was listed as the father on the birth certificate, and that Mrs. Boyett had constantly and consistently maintained Mr. Boyett was the father. By agreement of counsel, Mrs. Boyett's exception was referred to the merits of the case.

Mrs. Boyett subsequently filed an answer to Mr. Finnerty's petition in October 1983 in which she admitted that her child, Casey Nicole Boyett, was conceived as the result of Mrs. Boyett's sexual relationship with Mr. Finnerty. She also admitted this fact at trial. However, Mrs. Boyett's answer denied receiving child support from Mr. Finnerty, openly acknowledging Mr. Finnerty as the father, or allowing Mr. Finnerty visitation privileges.

After trial on this matter, the trial court gave written reasons for a decision sustaining the exception of no right of action. The trial court found the evidence adduced established that while the child was born during the marriage of the defendant and her husband, there was no dispute that Finnerty was the biological father, and that Boyett knew of his wife's pregnancy at the time of the marriage. We further note that Mr. Boyett admitted at trial that people in the community knew that he was not the biological father of the child, but that he had "adopted" her as if she were his own, and that he treated her as such. The trial court went on to hold that neither state nor federal law gave Mr. Finnerty a right of action to establish his paternity. First, the trial court considered state law and reasoned that no right of action existed because the legislature had not enacted specific authority for such an action, and because the legislature had indicated disapproval of the concept of dual paternity. Reasons to support the latter point were drawn from Fontenot v. Thierry, 422 So.2d 586 (La.App. 3d Cir.1982), writ denied, 427 So.2d 868 (La.1983), which is discussed later in the present opinion. This reasoning was said to be consistent with the traditional Louisiana family law policy of promoting and protecting the family unit. Second, the trial court considered federal law and reasoned that the thrust of the United States Supreme Court jurisprudence was to give the Boyett family a constitutional due process right to privacy which protected them from intrusion by Mr. Finnerty. The case of Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), a case which dealt with the due process rights of foster families, was cited for the statement that there exists a "private realm of family life which the state cannot enter."

Additionally, but not the basis of the trial court's holding, there was the court's opinion that allowing visitation would not be in the child's best interest. The court felt that the plaintiff had the burden of showing that the child's best interest would probably be served by allowing visitation, but that plaintiff had not met this burden. In the court's opinion, the child's best interest were served by a stable home environment not subject to periodic or arbitrary intrusions.

Mr. Finnerty appealed the trial court's judgment sustaining the exception of no right of action and dismissing plaintiff's suit. With reference to the constitutional issue of due process, he contends the liberty interest of the Boyetts must be balanced against his liberty interest that derives from blood relationship and basic human right. Appellant, like the trial court, cites Smith to support his contention. Both the appellant and the trial court also cite Taylor v. Taylor, 295 So.2d 494 (La.App. 3d Cir.1974), writ denied, 299 So.2d 799 (La.1974), as holding that while a biological father has no right to establish paternity when another man is presumed to be the father, the biological father, nevertheless, has a right to visitation when such visitation is in the best interest of the child. The trial court noted, however, that Taylor did not address the constitutional issue of family privacy.

Mrs. Boyett contends that appellant should not be allowed to assert that he is the biological father since to recognize him as such would bastardize a legitimate child. Mrs. Boyett further contends that appellant should not be so recognized since children who already enjoy legitimate filiation are precluded from attempting to filiate to another man. With regard to the latter contention, appellee directs the court's attention to the recent decision of Griffin, et al. v. Succession of Branch, 452 So.2d 344 (La.App. 1st Cir.1984), writs granted, 458 So.2d 108 (La.1984). As to visitation, appellee acknowledges Taylor as controlling, but contends that allowing appellant visitation rights would not be in the best interest of the child in this particular case.

THE NATURAL FATHER'S DUE PROCESS RIGHTS

The most recent pronouncement of the United States Supreme Court with regard to the due process rights of natural fathers is Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). As stated in Lehr, the Court, prior to that case, had examined the extent to which a natural father's biological relationship with his illegitimate child receives protection under the Due Process Clause in precisely three cases: Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), and Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979). Thus, resolution of the due process issue in the instant case must be made in light of these four United States Supreme Court decisions.

In the Stanley case, the Court struck down a state statute that established an irrebuttable presumption that fathers of illegitimate children were unfit to have custody of those children. Under the statute, such children were automatically made wards of the state upon the death of the mother; the actual relationship between the father and his children was totally irrelevant. Thus, the statute gave Mr. Stanley, who had lived with and cared for his children all their lives, no opportunity to show his fitness as a parent. The court held that parents in Mr. Stanley's position were constitutionally entitled to a hearing on their fitness before custody of the children could be taken away by the state.

While Stanley differs from the present case in that Mr. Finnerty, unlike Mr. Stanley, has never had custody of his child, one important similarity is the issue of an irrebuttable presumption. Under LSA-C.C. Art. 184, the husband of the mother is presumed to be the father of all children born or conceived during the marriage. But for this presumption, Mr. Finnerty would be able to filiate his child either by acknowledging her as provided in LSA-C.C. Art. 203, or by legitimating her as provided in LSA-C.C. Art. 200. Therefore holding that Mr. Finnerty has no right of action to establish his paternity is to interpret the presumption of Art. 184 as irrebuttable as applied to Mr. Finnerty. This interpretation elevates the presumption from one in the nature of an evidentiary rule, to one in the nature of a substantive rule of law. In light of Stanley, grave doubt is cast upon the constitutionality of such an interpretation of the presumption. Just as the irrebuttable presumption in Stanley denied the father in that case any opportunity to establish his fitness as a parent, interpreting the presumption of Art. 184 as irrebuttable would deny the father in this case any opportunity to establish his paternity, and, as discussed later in this opinion, would effectively deny him any opportunity of ever establishing a personal relationship with his child. Furthermore, as noted in Stanley, while procedure by presumption is always cheaper and easier than individualized determinations, "the Constitution recognizes higher values than speed and efficiency."

In the Quilloin case, the court upheld a state statute that allowed illegitimate children to be adopted without consent of the natural father. The significant factor in the case, which serves to distinguish it from Stanley, is that the father in Quilloin had the opportunity to...