Claim of ‘Father’ Rejected; Court Sides With Family

Staunchly reiterating the state’s interest in “preserving the integrity of the matrimonial family,” a California Court of Appeal on Thursday denied an unmarried Santa Monica businessman the right to visit the 5-year-old girl he calls his daughter.

Michael Hirschensohn, who had an affair with a married woman, had challenged a state law that presumes the cohabiting husband of a biological mother is the father of her child. But a three-judge panel of the 2nd District Court of Appeal ruled that Hirschensohn failed to overcome that presumption--even though he submitted a blood test indicating that he probably fathered Victoria.

In upholding state law in Hirschensohn’s appeal, Justice Armand Arabian wrote: “We appreciate that Michael H. has shown an interest in Victoria D. almost since her birth, has established an affectionate relationship with her and has at times even contributed to her support.

“However, the state’s interest in preserving the integrity of the matrimonial family is so significant that it outweighs most other interests.”

Justice George Danielson concurred in the 30-page ruling, and Justice Elwood Lui, without explanation, concurred “in the result” but not with Arabian’s wording.

The justices also rejected Hirschensohn’s claim to visitation rights granted under another law to “any other person having an interest in the welfare of the child.”

“We think it obvious in the circumstances of this case such court-ordered visitation would be detrimental to the best interests of the child,” Arabian wrote, quoting an earlier appellate opinion in another case. “Confusion, uncertainty, and embarrassment to the child would likely result. . . .”

At the time Victoria was conceived, according to the court opinion and facts revealed earlier by the parties, her mother, Carole Singleton, was married to and living with Gerald Dearing but was having an extramarital affair with Hirschensohn.

Arabian noted that the child was born May 11, 1981; the Dearings separated the following October, and blood tests taken at UCLA on Oct. 29, 1981, showed a 98.07% probability that Hirschensohn is the biological father.

The justices noted that Singleton and the girl lived with Hirschensohn from January to March of 1982 and again from August of 1983 until April of 1984, and with Dearing for short periods in between.

Again reconciled in June of 1984, the Dearings remain married and now have an infant son who lives with them and Victoria.

Signed Statement

Before Singleton left him in 1984, Hirschensohn obtained a signed agreement from her stating he was the father. She told her attorney, however, not to file the agreement in court.

State law permits blood tests to be used to thwart a husband’s presumed fatherhood within two years of a child’s birth, the court noted, but only if the biological father and mother approach the court together. Singleton, the justices said, never fully joined in Hirschensohn’s effort to legalize the paternity and, after reconciling with her husband, sought to block it.

In a separate opinion Thursday, another panel of the same appellate court overturned a $780,000 civil verdict against the City of Los Angeles in the fatal shooting of an Eagle Rock teen-ager by police officers in 1978. The justices said a Los Angeles Superior Court judge wrongly excluded testimony by expert witnesses about how use of the drug PCP may have prompted 18-year-old Mark Moser to “attack” an undercover police car with his pickup truck.

Jurors had awarded Kenneth and Janet Moser, parents of Mark Moser, $780,000 after deciding the dead youth contributed 20% to his own death and subtracting that portion from the $975,000 they assessed as damages.

Undercover Police

Moser was shot to death June 22, 1978, after his pickup collided with an undercover police car. The collision occurred at the end of a stakeout and chase that began with police attempts to stop cars racing down Eagle Rock streets after a high school graduation. Los Angeles Police Officer Bill Dunn claimed he fired in self-defense because Moser was attacking him with his pickup truck.

City lawyers introduced evidence that Moser had smoked two cigarettes laced with PCP, but Superior Court Judge Ricardo A. Torres forbade them to question experts able to explain PCP’s effects.

“A crucial question for the jury to decide involved decedent’s state of mind--was he simply continuing his attempt to evade the officers or was he, in fact, attacking the officers?” wrote Justice James H. Hastings, with the concurrence of Robert Feinerman and Herbert L. Ashby. “The jury did not know . . . whether it (PCP) could cause exactly the type of aggressive and violent behavior which appellants (the city) assert decedent displayed just before he was shot.”