Whos Your Daddy?: State Adoption Statutes and the Unknown Biological Father
| Author | Kimberly Barton |
| Pages | 113-147 |
Page 113
In 2000, approximately one-third of all births in the United States were to unwed mothers.1 Current trends indicate that during the next decade "'one of every two American babies will be born to a single mother, and illegitimacy will surpass divorce as the main cause of fatherlessness.'"2This increasing rate of out-of-wedlock pregnancies raises many questions concerning the parental rights of unwed fathers.3
In 1972, the United States Supreme Court opined that unwed fathers have a significant private interest in their continued relationship with the children they have "sired and raised."4 In three subsequent decisions,5 the Court affirmed this notion, holding that a putative father's interest in personal contact with his child acquires substantial constitutional protection when he "demonstrates a full commitment to the responsibilities of parenthood by 'com[ing] forward to participate in the rearing of his child.'"6 On the other hand, when an unwed father fails to grasp the opportunity to develop a relationship with his child and "accept some measure of responsibility in the child's future,"7 the mere biological link between father and child does not automatically compel constitutional protection.8
Page 114
Although the Supreme Court has offered a great deal of guidance in cases involving the adoption of older children born out of wedlock, it has not decided any cases involving the adoption of newborns conceived out of wedlock.9 Newborn adoption presents a special concern because unwed fathers may not have had the opportunity to develop a relationship with the child, and thus acquire the constitutional protection the Court has afforded fathers who have.10 The matter of newborn adoption becomes even more complicated when the biological father is not only unwed, but unknown.
Since the Court has not decided whether there must be an attempt to notify an unwed father whose identity or whereabouts is unknown of his child's pending adoption,11 states have had little guidance in resolving this complex issue. States that choose to protect the unknown father's inchoate interest in assuming a responsible role in the future of his child take various approaches to protect this interest, but the two predominant approaches they employ are putative father registries and publication notice requirements.12
This Comment attempts to uncover the best way to balance and protect the rights and interests of all the parties in an adoption proceeding when the biological father's identity is unknown. Part I of this Comment explores the emergence of unwed fathers' custodial rights in the children they sire, with a specific emphasis on four Supreme Court cases that have examined the rights of unwed fathers. Part II analyzes the two predominant methods used by the states to protect the inchoate parental right of unknown putative fathers. Part III discusses the best way to protect the rights and interests of the five parties involved-the biological mother, the biological father, the adoptive parents, the state, and the child-when the father's identity is unknown. In conclusion, this Comment argues that the establishment of a national putative father registry, together with the elimination of state publication notice requirements, is the best way to balance the interests of the parties when the biological father's identity is unknown.
Page 115
To fully understand the rights and interests of unknown biological fathers under current law, it is important to examine both the historical treatment of unwed fathers under statutory and common law, and the Supreme Court cases that have addressed the rights and interests of unwed fathers under the Due Process and Equal Protection Clauses of the United States Constitution.
Prior to 1972, the custodial rights of unwed fathers were not legally protected by common law or statute.13 The ancient rule at common law governing the custody of illegitimate children came within the doctrine of filius populi, or "son of the people."14 This doctrine provided that the custody of an illegitimate child was in the hands of the parish.15 As such, neither unwed mothers nor unwed fathers had custodial rights under the early common law.16
The common law rule regarding the custody of illegitimate children was eventually modified to award exclusive custody to the mother, thereby excluding only the putative father.17 This modification "arose from the presumption that [unwed mothers] were better custodian[s] than the putative fathers."18 Numerous factors gave rise to this presumption, including "the ease with which the mother could be identified and located, the obligation normally placed by society on the mother to care for and raise her children, and the strength of the bonds of love and affection assumed to exist between mother and child."19
The common law rule did not contemplate the possibility that unwed "father[s] might seek to assert paternity rather than escape it."20 Instead, itPage 116 presumed that "unwed fathers, whose identities were often uncertain, were 'irresponsible and unconcerned about their children,' and thus not entitled to any relationship with them."21
Since adoption was unknown at common law, a putative father's rights with respect to the adoption of his child were defined by state statutes.22State legislatures provided the general rule that the consent of the unwed mother was enough for legal relinquishment of the child.23 In fact, states statutorily defined "parent" to include both the mother and father of legitimate children, but only the mother of illegitimate children.24 States even went so far as to say that a putative father who married the mother of his illegitimate child while adoption proceedings for the child were pending did not acquire the right to consent to the child's adoption.25Thus, an unwed father was essentially powerless to prevent his illegitimate child from being placed for adoption if that was the natural mother's wish.26
There were a number of purposes of these early adoption statutes. Lawmakers believed these statutes promoted the adoption of illegitimate children, protected the privacy of unwed mothers, and provided adoptive parents with unassailable rights to their adopted children.27 It has also been suggested that these early statutes "sought to punish putative fathers for their sins in order to deter promiscuity and illegitimacy, while encouraging marriage and promoting legitimate family units."28 In 1972, however, the prevailing view toward unwed fathers was forever changed.29
Page 117
In 1972, the United States Supreme Court decided the first of four cases that have had a significant impact on the extent to which a natural father's biological relationship with his illegitimate child receives constitutional protection.30
In this case, Peter and Joan Stanley had lived together for eighteen years in a non-marital relationship, during which time they had three children.31 When Joan died, the State of Illinois instituted a dependency hearing in conjunction with a state law that declared illegitimate children wards of the State upon the death of the mother.32 Because the State did not recognize an unwed father as a "parent,"33 the children were presumed to be without parents and became wards of the State.34
Stanley appealed, claiming that he had never been shown to be an unfit parent.35 "Since married fathers and unwed mothers could not be deprived of their children without such a showing, [he argued] that he had been deprived" of his Fourteenth Amendment right of equal protection.36
The State contended that its interests in protecting the "'moral, emotional, mental and physical welfare of the minor'" and "'strengthen[ing] the minor's family ties whenever possible'" justified the procedure on the grounds that, as a general rule, unwed fathers were not fit parents.37 Thus, the State argued that it was not required to give unwed fathers any special treatment with respect to the custody of their children.38
Rejecting the State's contention, the Supreme Court ruled that unwed fathers have a significant private interest in their continued relationshipPage 118 with children they have "sired and raised" that "undeniably warrants deference and, absent a powerful countervailing interest, protection."39Although the Court acknowledged that the State's interests were legitimate, it found that the State's goals of protecting minors and strengthening familial bonds were not furthered by separating children from the custody of fit parents.40 Therefore, the Court held that the State was barred, as a matter of both due process and equal protection, from taking custody of an unwed father's children, absent a hearing and a particularized finding that the father was an unfit...
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