Legal Rights of the Unwed Father

• Author: by Major Robert W. Martin
• Pages: 10

1. INTRODUCTION

   The purpose af this article is to provide an overview of the present legal role of un-ed fathers and the more common and impartant issues connected with counseling an unwed father in the service as to his parental rights and obligations. The following discussion attempts to briefly analyze the unwed serviceman-father's rights to adoption, custody, visitation. and certain military aspects affecting his illegitimate children.

   11. CONSTITUTIONAL RECOGNITION OF THE UNWED FATHERS PARENTAL ROLE

   A Starting point in examining constitutional cases which focus on the rights of unwed fathers is Stanley c. This is one of the most significant cases in this decade to recognize, protect, and extend the unwed father's parental role into the lives of his Illegitimate children. In that case, an Illinois statute estopped an unwed father from participating in the custody proceedings of his three illegitimate children following the death of the mother, even though the father and mother had lived together intermittently for eighteen years. The United States Supreme Court, in holding the Illinois statute unconstitutional. statedthatunwedfathers have a cognizable and substantial interen in retaining custody of their children.? The Illinois statute in question was found to violate both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment. The Due Process Clause was violated because the statute presumed that unmarried fathers made unsuitable parents, a presumption which the Court found toviolate Stanley'sdue process righttoaprior hearing on his fitness as a ~arent.~The

   Equal Protection Clause ivas

   violated because the statute deprived Stanlerof the hearing afforded other parentsontheiasueoftheirsuitabilitytoretaincustodyoftheirchildren.' As a result. this case guaranteed constitutional Protection and safeguard to the biological father's relationship with his illegitimate children

   In 1978. some six years after the Stnnley ruling, the Supreme Court held ~n Q~illoir~ 1.. Uhleott that states. in certain circumstan-* The author Q biography IS noted below the preceding article.

   1105 U S 616 (1972) gld at 652'Id at 619lid at 658

   UILITARY LAW REVIEW [VOL 102

   ces. may enact legislation which treats unhed fathers differentir from unwed rnothexj In this case the Court upheld as constitutional a Georgia statute that denied an unwed father the right to prexent the adoption of his child by the natural mother's husband. The Georgiaatatute required only the consent of the mother for adoptlanofan illegitimate child unless the natural father had legitimatized the child. The unwed father in this case made no attempt to legitimatize his chiid or to assume any paternal responsibilities for over ele?en years In fact. the mother's husband was the only real father the child had ever known. As a result. the Court held that the state could distinguish U ~ U ed fathers from married fathers because the unwed father had not assumed responsibility for his child.'

   In 1979, one year after Q~~i110;n

   the Court in Cabaii ?.. XoMaiiammrd held a Kew York statute unconstitutional because the distinction between the rights of una ed mothers and unwed fathers. an inraiid gender-based distinction, was not demonstrated by be substantially related to an important state interest.8 In Cabmi. an unmarried father challenged the constitutionalit) of the New York iaw that gave an unwed mother. but not an unwed father. the power to pre-vent an adoption of the children byi~ithholdingconsent Theunmarried father could prevent...