THE COUNSELOR=S CORNER

It=s good to see that the California State Supreme Court did the right thing even though they barely did so as a 4 to 3 decision saved the day for a young rape victim and her child. It seems so simple, so clear, that a biological father who is in prison because he raped the mother of their child should be denied legal paternity rights. Yet apparently it is not that simple or at least it wasn=t for the three judge minority.

In this case, the State Supreme Court agreed with the denial of paternity rights for the imprisoned biological father finding that the current husband of the young woman (who had remarried), would make a better parent.

The three Judge Minority is concerned that this decision will extend beyond the facts of this case and will permit judges to ignore biology if they think someone else would make a better father than the biological father. Maybe, but I don=t have a problem with that. James Owens, the attorney for the mother believes that the court balanced the rights of two men who could be defined as fathers of the child and chose the one that Abetter fit the description of fatherhood.@

It should be noted that this initial decision was made in juvenile court as both the biological father, aka the rapist, and the child=s mother were under 18 years of age. A potential problem with the juvenile court hearing pertaining to this matter was that the biological father was not present at the hearing although his attorney was. Of course, he would have been present at the hearing had he not been convicted of rape of the biological mother. While the law in this state does require both a prisoner and his attorney to be present during this type of hearing, the court held that the appearance of the attorney was sufficient. The biological father did not assert on appeal that he was prejudiced by the fact that he was unable to appear at this hearing and had only his attorney to speak on his behalf. Had he asserted that he had been prejudiced, it is likely that this case would have been sent back to juvenile court and a rehearing would have been ordered. The biological father, Heriberto C. claims that he always treated the child in an appropriate and loving fashion. Too bad he didn=t treat the child=s mother that way. He claims that permitting the woman=s current husband=s to be deemed the child=s father ignores his constitutional rights.

I don=t think so. Ideally Heriberto would have been present at the hearing and if he had raised the issue of his absence on appeal, I believe he would have obtained a second hearing. I do not, however, think that the decision would have gone any differently. On one side you have the biological father of the child who is in prison for the rape of the mother of the child. On the other side you have the mother/rape victim=s new husband who apparently is a pretty good guy. A donation of sperm does not a father make. Yes, I can see that there may be problems with this decision as the State Supreme Court did not indicate what types of crimes will lead to a biological father losing his parental rights and what types of crimes won=t, however, I am quite comfortable with this rape conviction being placed on the side of one where the biological father loses his parental rights.

This 4 to 3 decision most importantly did what was right for the child, a five year old girl who has the rest of her life ahead of her. I am more interested in what will happen to her and how her life will play out in however many years she is granted on this earth, than I am in the rights of the sperm donor. I think that our society has given too much in the way of rights to biological parents often to the detriment of adoptive parents or others who have a parental claim. This court did the right thing and everyone but the biological father will prosper. I can live with that.

Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Unger & Grover, and a therapist at the Foothill Centre for Personal and Family Growth. Mr. Unger writes a bimonthly column on legal and psychological issues. He can be reached at (818) 244-8694 or at www.charlieunger.com.