Fatherhood: Law Facing a Challenge

It has been two years since Santa Monica businessman Michael Hirschensohn last saw Victoria, the 5-year-old girl he calls his daughter.

And it has been five years since he began his battle with the state of California in an unusual bid to gain the visitation rights and other considerations that normally go to any divorced father.

Should he succeed, some lawyers believe his legal challenge could force the state to redraw its definition of what constitutes a family.

“I lived with the woman I loved, we split up and I think I’m entitled to see my daughter,” Hirschensohn said, “I’m not asking to be treated other than a divorced father.”

The problem is Hirschensohn, 44, was never married to Victoria’s mother, one-time model Carole Singleton. She, however, was married to someone else--though separated--and has since returned to live with him in New York.

And, as far as California law holds, that someone else is Victoria’s legal father. The law in question, California Evidence Code Section 621, presumes that a husband, unless he is sterile or impotent, is the father of any child born during a marriage.

Although blood tests indicate that Hirschensohn is almost certainly the little girl’s father and court documents show Singleton, for a time, had acknowledged him as her child’s father and accepted his financial support, the law leaves him without recourse.

Hirschensohn’s lawyer, joined by attorneys from the ACLU and the National Council for Children’s Rights Inc., are challenging the law before the state Court of Appeal and, in the interim, are asking a Superior Court judge to grant temporary visitation rights.

Based on the notion that the law is outdated in a society where divorce and unmarried parents are increasingly common, the appeal mounted by Hirschensohn’s lawyers also claims that Victoria has a constitutional right to know her biological father, whether he is married to her mother or not.

“He’s undisputably the father of the child,” said Michael L. Oddenino of the National Council for Child’s Rights Inc. “Why can’t the father and child have a relationship?

“I think modern society has essentially redefined our notion of the family unit. To rely on a traditional notion ignores the social reality.”

In documents filed with the Court of Appeal, ACLU attorney Patricia Erickson charges that the statute amounts to a “state-threatened termination of developed child-parent relationship.

”. . . To sever the existing relationship violates due process,” Erickson argued. “This case concerns an established relationship between a (father) and his illegitimate child. Now that Carole has returned to (her husband) with Victoria, the state’s interest in maintaining the integrity of the family does not justify terminating the relationship between Michael and Victoria.

“She will have two fathers willing to care for her rather than one.”

Attorneys for Singleton and her husband, Gerald Dearing, have declined to comment on the specifics of the dispute, saying the case is confidential because Victoria is a minor. Court records having to do with the visitation request are sealed in Los Angeles Superior Court. Records on file with the Court of Appeal, however, are public.

Leslie Shear, Victoria’s court-appointed attorney, has joined Hirschensohn in challenging a 1985 Superior Court ruling that initially barred contact between father and daughter.

“There’s a fundamental right to family relationships as protected by the Constitution and we think when you look at a family, you have to look at all the dimensions, the biological, the social and the psychological,” Shear said.

“We think this child had both a biological and a psychological relationship with Mr. Hirschensohn.

“When you think about how many children have more than one daddy this society . . . (barring contact) ignores all the reality of this little girl.”

According to Court of Appeal documents, Hirschensohn and Singleton, who was then separated from her husband, had an on-again, off-again affair from 1978 to 1984, during which time Victoria was conceived. The little girl was born prematurely in May, 1981.

Shortly after her birth, a blood test showed a 98.07% probability that Hirschensohn is the father. And for a time, the court records show, Hirschensohn and Singleton lived together and portrayed themselves as the child’s parents.

Although Hirschensohn filed his lawsuit to establish paternity in 1982, the action was put on hold while he and Singleton were together.

Eventually, however, Singleton had a change of heart and permanently left Hirschensohn for her husband, taking Victoria to New York with her. Hirschensohn petitioned the Superior Court for visitation rights and, in 1984, he was granted one weekend a month with the child.

But in January, 1985, Singleton and her husband asked for a reconsideration and a Superior Court judge, citing the California law, threw out of court Hirschensohn’s claim to Victoria.

The monthly visits stopped. The ruling was appealed.

“It’s like the kid is chattel,” said Joel Aaronson, the attorney representing Hirschensohn. “The crux in this case is . . . this child had a meaningful relationship with this man and should have continued contact.

“But a legal technicality in the law says the child is someone else’s. The law is being used as a sword to cut off Michael’s rights, not as a shield to protect them.”

On Wednesday, a Superior Court commissioner scheduled a March 25 hearing on the visitation issue and an accompanying request for a psychological evaluation of the three adults and Victoria.