Supreme Court Will Hear Case Disputing State’s Paternity Law

A Santa Monica businessman, who contends that he is the father of a 6-year-old girl and says California’s courts have unfairly refused him a chance to prove it, got part of his wish Monday: The Supreme Court agreed to hear his claim.

If Michael Hirschensohn wins his case, however, the paternity laws in California and most other states may have to be rewritten.

State law says that a woman’s husband is “conclusively presumed” to be the father of her child so long as husband and wife are “cohabitating” and he is “not impotent or sterile.” The Legislature says that this rule helps to preserve families and save children from endless custody battles.

Cites Due Process

But Hirschensohn says that the provision denies him his right to due process of law because it prevents him from proving that he--not the woman’s husband--is the father of the child.

This case began in October, 1980, when Hirschensohn says he was having an affair with a married woman, cited in court papers as Carole D. She was then married to Gerald D.

The next May, the woman gave birth to a girl, Victoria, and for a time lived with Hirschensohn. To confirm that he was indeed the child’s father, Hirschensohn, along with the mother and baby, had blood tests at the UCLA Medical Center that showed with a “98% probability” that he was the baby’s father.

A month later, however, Carole reconciled with her husband, and together they moved with Victoria to New York, where they live now. Upset at losing the right to see the girl, Hirschensohn filed suit in Los Angeles.

Like Divorced Father

“I think I’m entitled to see my daughter,” Hirschensohn told The Times last year. “I’m not asking to be treated other than like a divorced father.”

But he was not a divorced father, the state courts noted, because he had never been married to Carole.

A Superior Court and a state Court of Appeal, citing the California paternity rule, threw out Hirschensohn’s suit without calling for a trial.

“The Legislature (has said) as a matter of overriding social policy that, given a certain relationship between the husband and the wife, the husband is to be held responsible for the child and the integrity of that family unit should not be impugned,” the appellate court ruled last year.

Husband’s Right

The state law includes a provision for using blood tests to settle paternity disputes, but only a husband can invoke this right.

Hirschensohn’s attorney, Joel Aaronson of Sherman Oaks, says that the state’s rule is outdated and old-fashioned and does not take into account recent changes in the American family.

“I think they have taken a myopic view of the so-called nuclear family,” he said Monday. “If the country is going to have a 50% divorce rate, kids are going to have multiple parents.”

Wins Groups’ Support

The ACLU of Southern California and the National Council for Child’s Rights back Hirschensohn in his court battle, contending that a father should not be arbitrarily cut off from visiting his daughter.

Aaronson said that his client is not seeking custody of Victoria but hopes only to win the right to see the girl.