Section 28.4 Constitutional History of Parental Rights and Responsibility

• Library: Family Law Deskbook and 2014 Supp

IV. (§28.4) Constitutional History of Parental Rights and Responsibility

In a series of decisions, the Supreme Court of the United States has outlined the constitutional treatment of the putative father. Recognition that the father of a child born out of wedlock was entitled to certain constitutional protection first came in the now-famous case of Stanley v. Illinois, 405 U.S. 645 (1972). The Court in Stanley held unconstitutional an Illinois child protection statute that ignored the father of a child born out of wedlock in its definition of “parent.” The Supreme Court of the United States declared that the statutory procedure denied the putative father the due process and equal protection guaranteed by the Fourteenth Amendment of the U.S. Constitution and, therefore, must fall.

The Supreme Court next faced the difficult task of delineating the aspects of fatherhood. “Stanley left unresolved the degree of protection a State must afford to the rights of an unwed father . . . .” Quilloin v. Walcott, 434 U.S. 246, 248 (1978). In a pair of decisions in 1978 and 1979, the Supreme Court wrestled with the extent of the constitutional protection afforded a putative father.

The 1978 decision of Quilloin, 434 U.S. 246, held that a Georgia statute that afforded a father of a child born in wedlock the power to veto the adoption of the child without his consent, but did not give the same right to a putative father, did not violate the equal protection clause of the
U.S. Constitution. The Court held that “the State could permissibly give [an unwed father] less veto authority than it provides to a married father.” Id. at 256. It is important to note that in Quilloin the putative father had not taken any steps to acknowledge or...