Gomez v. Perez, No. 71-575

CourtUnited States Supreme Court
Writing for the CourtPER CURIAM; STEWART
Citation93 S.Ct. 872,409 U.S. 535,35 L.Ed.2d 56
Decision Date17 January 1973
Docket NumberNo. 71-575
PartiesLinda GOMEZ, Individually and as Next Friend of Zoraida Gomez, Appellant, v. Francisco Ocasio PEREZ

409 U.S. 535
93 S.Ct. 872
35 L.Ed.2d 56
Linda GOMEZ, Individually and as Next Friend of Zoraida Gomez, Appellant,

v.

Francisco Ocasio PEREZ.

No. 71-575.
Argued Dec. 6, 1972.
Decided Jan. 17, 1973.

Stanley Dalton Wright, Houston, Tex., for appellant.

Joseph Jaworski, Houston, Tex., as amicus curiae, in support of the judgment below.

PER CURIAM.

The issue presented by this appeal is whether the laws of Texas may constitutionally grant legitimate children a judicially enforceable right to support from their natural fathers and at the same time deny that right to illegitimate children.

In 1969, appellant filed a petition in Texas District Court seeking support from appellee on behalf of her

Page 536

minor child. After a hearing, the state trial judge found that appellee is 'the biological father' of the child, and that the child 'needs the support and maintenance of her father,' but concluded that because the child was illegitimate 'there is no legal obligation to support the child and the Plaintiff take nothing.' The Court of Civil Appeals affirmed this ruling over the objection that this illegitimate child was being denied equal protection of law. 466 S.W.2d 41. The Texas Supreme Court refused application for a writ of error, finding no 'reversible error.' We noted probable jurisdiction. 408 U.S. 920, 92 S.Ct. 2479, 33 L.Ed.2d 331.

In Texas, both at common law and under the statutes of the State, the natural father has a continuing and primary duty to support his legitimate children. See Lane v . Phillips, 69 Tex. 240, 243, 6 S.W. 610, 611 (1887); Tex.Fam.Code § 4.02 (1970) (husband's duty).1 That duty extends even beyond dissolution of the marriage, Tex.Rev.Civ.Stat., Art. 4639a (Supp.1972—1973); Hooten v. Hooten, 15 S.W.2d 141 (Tex.Civ.App.1929), and is enforceable on the child's behalf in civil proceedings and, further, is the subject of criminal sanctions. Tex. Penal Code § 602. The duty to support exists despite the fact that the father may not have custody of the child. Hooten v. Hooten, supra. The Court of Civil Appeals has held in this case that nowhere in this elaborate statutory scheme does the State recognize any enforceable duty on the part of the biological father to support his illegitimate children and that, absent a statutory duty to support, the controlling law is the

Page 537

Texas common-law rule that illegitimate children, unlike legitimate children, have no legal right to support from their fathers. See also Home of the Holy Infancy v. Kaska, 397 S.W.2d 208 (Tex.1965); Lane v. Phillips, supra, at 243, 6 S.W., at 611; Bjorgo v. Bjorgo, 391 S.W.2d 528 (Tex.Civ.App.1965). It is also true that fathers may set up illegitimacy as a defense to prosecutions for criminal nonsupport of their children. See Curtin v. State, 155 Tex.Cr.R. 625, 238 S.W.2d 187 (1950); Beaver v. State, 96 Tex.Cr.R. 179, 256 S.W. 929 (1923).

In this context appellant's claim, on behalf of her daughter that the child has been denied equal protection of the law is unmistakably presented. Indeed, at argument here, the attorney for the State of Texas, appearing as amicus curiae, conceded that but for the fact that this child is illegitimate she would be entitled to support from appellee under the laws of Texas.2

We have held that under the Equal Protection Clause of the Fourteenth Amendment a State may not create a right of action in favor of children for the wrongfu-

Page 538

l death of a parent and exclude illegitimate children from the benefit of such a right. Levy v. Louisiana, 391 U.S. 68, 88...

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348 practice notes
  • Trimble v. Gordon, No. 75-5952
    • United States
    • United States Supreme Court
    • April 26, 1977
    ...this area. Our previous decisions demonstrate a sensitivity to "the lurking problems with respect to proof of paternity," Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 875, 35 L.Ed.2d 56 (1973), and the need for the States to draw "arbitrary lines . . . to facilitate potentially difficul......
  • Severance v. Weinberger, Civ. A. No. 1659-72.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 2, 1973
    ...aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination. Gomez v. Perez, 409 U.S. 535, at 538, 93 S.Ct. 872, at 875, 35 L.Ed.2d 56, 1973.362 F. Supp. 1355 v. Weinberger, 478 F.2d 30023 (5th Cir. 1973), and the views of Judge F......
  • Gilliard v. Kirk, Civ. A. No. 2660.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • May 7, 1986
    ...to a child simply because its natural father has not married its mother. For a State to do so is `illogical and unjust.'" Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 875, 35 L.Ed.2d 56 (1973), with reference to Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.......
  • Estate v. Britel, G049161
    • United States
    • California Court of Appeals
    • April 23, 2015
    ...462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 ; Trimble v. Gordon (1977) 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 ; Gomez v. Perez (1973) 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 ; Weber v. Aetna Casualty & Surety Co. (1972) 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 ; Glona v. American Gu......
  • Request a trial to view additional results
347 cases
  • Trimble v. Gordon, No. 75-5952
    • United States
    • United States Supreme Court
    • April 26, 1977
    ...this area. Our previous decisions demonstrate a sensitivity to "the lurking problems with respect to proof of paternity," Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 875, 35 L.Ed.2d 56 (1973), and the need for the States to draw "arbitrary lines . . . to facilitate potentially difficul......
  • Severance v. Weinberger, Civ. A. No. 1659-72.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 2, 1973
    ...aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination. Gomez v. Perez, 409 U.S. 535, at 538, 93 S.Ct. 872, at 875, 35 L.Ed.2d 56, 1973.362 F. Supp. 1355 v. Weinberger, 478 F.2d 30023 (5th Cir. 1973), and the views of Judge F......
  • Gilliard v. Kirk, Civ. A. No. 2660.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • May 7, 1986
    ...to a child simply because its natural father has not married its mother. For a State to do so is `illogical and unjust.'" Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 875, 35 L.Ed.2d 56 (1973), with reference to Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.......
  • Estate v. Britel, G049161
    • United States
    • California Court of Appeals
    • April 23, 2015
    ...462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 ; Trimble v. Gordon (1977) 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 ; Gomez v. Perez (1973) 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 ; Weber v. Aetna Casualty & Surety Co. (1972) 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 ; Glona v. American Gu......
  • Request a trial to view additional results
1 books & journal articles
  • LEGITIMIZING ILLEGITIMACY IN CONSTITUTIONAL LAW.
    • United States
    • Washington University Law Review Vol. 99 Nbr. 6, August 2022
    • August 1, 2022
    ...Are Mothers' Duties: The Failure of Equal Protection in Miller v. Albright, 109 YALE L.J. 1669, 1683-84 (2000). (26.) See Gomez v. Perez, 409 U.S. 535, 538 (1973) ("[T]here is no constitutionally sufficient justification for denying [child support to] a child simply because its natural fath......

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