R. McG. v. J. W.

Decision Date11 August 1980
Docket NumberNo. 80SA167,80SA167
PartiesR. McG. and C. W., Plaintiffs-Appellants, v. J. W. and W. W., Defendants-Appellees.
CourtColorado Supreme Court

Feder, Morris & Tamblyn, P. C., Leonard M. Goldstein, Margaret N. Dillon, Denver, for plaintiffs-appellants.

David Burnell Smith, Littleton, for defendants-appellees.

QUINN, Justice.

This appeal raises the question whether the Uniform Parentage Act (UPA), section 19-6-101 et seq., C.R.S.1963 (1978 Repl.Vol. 8), by not expressly granting a claiming natural father the right to bring an action for a determination of his paternity of a child born during the marriage of the natural mother to another, violates equal protection of the laws under the federal and state constitutions and the equal rights amendment to the Colorado constitutional. 1 We hold that the claiming natural father is constitutionally entitled to bring this action and reverse the summary judgment denying him statutory capacity or standing to seek a determination of his paternity.

Plaintiff-appellant R. McG. commenced an action in 1978 in the Denver Juvenile Court against defendants-appellees, J.W. and W.W., on behalf of himself and the minor child, C.W., 2 to establish his paternity of C.W. The complaint alleged that R. McG. is the natural father of C.W., who was born in 1976 to R. McG. and J.W., the natural mother; that at the time of the conception and birth of C.W., J.W. was married to W.W.; that R. McG. is the only man who had sexual intercourse with J.W. at any possible time of conception; that J.W. admitted that R. McG. is the natural father of C.W.; and that blood tests have been unable to exclude R. McG. as the natural father. J.W. and W.W. in their answer denied the alleged paternity of R. McG. and moved for summary judgment on the ground that R. McG. lacked statutory capacity or standing under the UPA to bring the action. 3

Prior to hearing the motion for summary judgment, the court granted R. McG.'s motion for serological testing of R. McG. and W.W. 4 The results of these tests indicated that R. McG. could not be excluded as the father of C.W., and that the probability of R. McG.'s paternity was 98.89 percent. 5 The testing laboratory was unable to isolate a sufficient number of lymphocytes from the blood sample of W.W. and requested another blood sample from him, but he refused to comply with the request. In opposition to summary judgment R. McG. filed an affidavit stating that he was the natural father of C.W., and that he and J.W. had intercourse regularly at any possible time of conception; that he and J.W. had planned to divorce their respective spouses and marry each other; that J.W. acknowledged in a sworn codicil to her will and in correspondence that he was the natural father of C.W.; 6 and that C.W. had visited almost daily with him until she was 11/2 years old and had developed a close relationship with R. McG.'s three other children.

R. McG. opposed the motion for summary judgment on the grounds that the application of the UPA in a manner that denied him statutory capacity or standing to bring an action for a determination of his paternity of C.W. would violate his right to equal protection of the laws under the federal constitution, U.S.Const. Amend. XIV, and under the state constitution, Colo.Const. Art. II, Sec. 25, and also would violate the equal rights amendment to the Colorado constitution, Colo.Const. Art. II, Sec. 29.

The juvenile court rejected the constitutional claims of R. McG. and granted the motion for summary judgment on behalf of J.W. and W.W., holding that R. McG. lacked capacity under the UPA to bring this action. We determine that under the circumstances of this case the failure of the UPA to grant R. McG. the right to bring an action for a determination of his paternity of C.W. violates equal protection of the laws under the federal and state constitution and the equal rights amendment to the Colorado constitution.

I

Before the enactment of the UPA, a putative father had no statutory right to commence an action to establish his paternity. The then existing statute authorized an action by the child's mother or guardian or the county department of social services, as the exclusive means of establishing paternity. Section 19-6-101, C.R.S.1973; see People in the Interest of L.B., 29 Colo.App. 101, 482 P.2d 1010 (1976), aff'd, 179 Colo. 11, 498 P.2d 1157 (1972), appeal dismissed mem., 410 U.S. 976, 93 S.Ct. 1497, 36 L.Ed.2d 173 (1973). The UPA was enacted in 1977 and furnishes the statutory framework for the constitutional issues raised on this appeal.

One basic purpose of the UPA is the establishment of the parent-child relationship, section 19-6-104, C.R.S.1973 (1978 Repl.Vol. 8), and another is the protection of that relationship, section 19-6-103, C.R.S.1973 (1978 Repl.Vol. 8). Section 19-6-102 defines that relationship as the legal relationship existing between a child and a natural parent, and expressly includes the father-child relationship. The parent-child relationship extends equally to every child and to every parent, regardless of the marital status of the parents. Section 19-6-103, C.R.S.1973. Section 19-6-104 authorizes the establishment of the paternal relationship between a child and its natural father and recognizes the right of putative fathers to bring an action to establish paternity under the applicable provisions of the UPA.

The UPA, however, makes no provision for a male claiming to be the natural father of a child to bring an action to establish his paternity under the circumstances present here. Section 19-6-107 of the UPA, insofar as pertinent to this case, provides:

"(1) A child, his natural mother, or a man presumed to be his father under section 19-6-105(1)(a) . . . may bring an action:

(a) At any time for the purpose of declaring the existence of the father and child relationship presumed under section 19-6-105(1)(a) . . . ; or

(b) For the purpose of declaring the nonexistence of the father and child relationship presumed under section 19-6-105(1)(a) . . . only if the action is brought within a reasonable time after obtaining knowledge of relevant facts, but in no event later than five years after the child's birth. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party."

Under section 19-6-105(1)(a) a man is presumed to be the natural father of a child if he and the child's natural mother are or have been married to each other and the child is born during the marriage. Section 19-6-105(2) provides that this presumption and other statutory presumptions of paternity may be rebutted by clear and convincing evidence, and a presumption is rebutted by a court decree establishing paternity in another man.

The juvenile court, relying on the interpretative rule of expressio unius est exclusio alterius, reasoned that since section 19-6-107(1) expressly provided that certain categories of persons may commence an action in paternity, including a presumed father under section 19-6-105(1)(a), the legislature thereby intended to prohibit anyone outside the specifically designated categories, such as a claiming natural father not married to the natural mother, from commencing a paternity action in connection with a child born to the natural mother during her marriage to another.

II

R. McG. argues the juvenile court's construction denying him statutory capacity or standing to establish that he is the natural father of C.W. violates equal protection of the laws under the Fourteenth Amendment to the United States constitution and Article II, Section 25 of the Colorado constitution, 7 and, in addition, violates the equal rights amendment to the Colorado constitution, Colo.Const. Art. II, Sec. 29. We agree with R. McG.'s argument. The UPA, as construed by the juvenile court, denies R. McG. equal protection by impermissibly discriminating between natural mothers and claiming natural fathers, and such statutory classification is not substantially related to an important governmental interest. A fortiori, we also determine that the denial of statutory capacity or standing to R. McG. is based on a gender classification that violates the equal rights amendment to the Colorado constitution, which prohibits the denial or abridgement of equality of rights on the basis of sex. Colo.Const. Art. II, Sec. 29.

"Gender-based distinctions 'must serve (important) governmental objectives and must be substantially related to achievement of these objectives' in order to withstand judicial scrutiny under the Equal Protection Clause." Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); see Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). No one questions the interest of the state in preserving the integrity of family units already in existence and fostering child rearing in harmonious family settings. See section 19-1-102, C.R.S.1973 (1978 Repl.Vol. 8). These interests are important and within the power of the state to implement. The controversy here is not with governmental ends but rather with the choice of means to achieve those ends:

". . . (T)he unquestioned right of the State to further these desirable ends by legislation is not in itself sufficient to justify the gender-based distinction . . . . Rather, under the relevant cases applying the Equal Protection Clause it must be shown that the distinction is structured reasonably to further these ends. . . . (S)uch a statutory 'classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' " Caban v. Mohammed, 441 U.S. at 391, 99 S.Ct. at 1767, 60 L.Ed.2d at 306.

We, therefore, must analyze the...

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