Do you remember that sitcom of ten years or so ago where Paul Reiser (before "Mad About You" fame) and Greg Evigan (after "BJ And The Bear" fame) attempted to raise a twelve year old girl.  The California State Supreme Court finds itself grappling with the case of an unmarried man (Jerry K.) who wishes to be legally recognized as the father of a married woman's child (Victoria D.) and help raise the child along with her parents Dawn and Frank.  Yes, your eyes did not deceive you; in this time where the trend is for fathers to abdicate responsibility toward their children, this case finds a child with a mother and a father, however, she may well soon find herself with a second father.


Jerry K. is the individual who has made the claim indicating that he fathered the child when the mother, Dawn, was separated from her husband and living with him in 1995.  For a while it appeared as if this matter would avoid the court system as there had been a tentative agreement worked out that would have allowed Jerry to pay child support and visit his child; however, Dawn and Frank decided against this and told Jerry to take his best shot. 

In the State of California, the law holds that a child born during a marriage is presumed to be the child of that marriage.  The problem here is that Dawn acknowledges she was living with Jerry when the child was fathered.  She also acknowledges that in 1995 when she and Jerry were together, Jerry offered to pay child support, took parenting classes, and added a room to his house for the child.  Unfortunately for Jerry, Dawn then went back to Frank and Jerry is now seeking legal, although not physical, custody and is offering to take a blood test to show that he is the father. 

While a child born during a marriage is presumptively the child of the couple, a Riverside family law commissioner recently decided that this presumption does not apply when the woman is not living with her husband at the time the baby is conceived.  Dawn and Frank have appealed and they are relying on a federal case in which the court rejected the claim of a man situated similarly to Jerry who through blood tests showed there was a 98 percent probability that he, in fact, was the father.  In the federal case, however, the mother was living with her husband at the time of conception and that was important to the federal court and different from Jerry's case.


When this case was argued in front of the State Supreme Court in early January, the Justices seemed to be having a difficult time.  They appeared sympathetic to Jerry, however, there was some indication they felt their hands were tied because of the status of the law in this State.  One Justice lamented the fact that if the Court ruled against Jerry, it would be sending the wrong message as we want fathers to take responsibility for their children.  Other judges seemed to feel that keeping the present family situation stable was more important. 


Dawn and Frank argue that if Jerry is deemed the father, this would take away the fatherhood rights of Frank, including the right to pass on his last name to the child. 


Jerry's best argument is to ask what would happen if Dawn left her husband again and ended up marrying another man.  What if the Court rules in favor of Dawn and Frank and then a year or two later Dawn leaves Frank and decides she wants to go back to living with Jerry--or even marry Jerry? 


What a mess.  The legislative policy in this State is to attempt to keep a family together and, Jerry's claim would certainly threaten the stability of this family; however, this does not appear to be the most stable family in the world to begin with.  Obviously, if Dawn hadn't moved out of her home, moved in with Jerry, gotten impregnated by Jerry, learned she was pregnant and watched Jerry reconstruct his house to make room for the baby, there would not be a court case today.


A decision in this case is due by the end of March and the more I think about it, I believe Jerry should have a role in the life of his biological daughter assuming blood tests confirm he is the father.  I'm not a big fan of the disruption this will cause to the household, however, this is a case where Jerry wanted to take responsibility from day one.  He is not a Jerry-come-lately as he has wanted to be involved from the beginning.


In a society where abdication of responsibility has become vogue, what kind of message do we send if we don't reward in at least some fashion a father's desire to be involved in the life of his daughter?

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Charles J. Unger is a partner in the law firm of Flanagan, Booth & Unger which specializes in defense of criminal cases and the handling of personal injury matters and has been located in Glendale for 17 years.  Mr. Unger recently obtained his doctorate in psychotherapy at the American Behavioral Studies Institute and he writes a bi-monthly column on legal and/or psychological issues.