III. The Rights of Unwed Father’s
A. History & National Trends
Ask any family law practitioner informally to compare the number of divorces for which they are engaged versus the number paternity actions for which they are engaged and you will likely be informed it is nearly close to equal. Since 1960, the number of children born out of wedlock or to unwed parents has increased from five percent in 1960, to 32 percent in 1995 and 41 percent in 2013. Since 1960, and in an effort to keep up with this dramatic shift from the traditional family structure and state laws which fail to adequately address this new type of family structure and most particularly, the rights and responsibilities of unwed fathers, the National Conference of Commissioners on Uniform State Laws (NCCUSL) developed and promulgated several Acts including the Uniform Act on Paternity, the Uniform Parentage Act, and the Uniform Putative and Unknown Fathers Act.
The NCCUSL began first with the development of the Uniform Act on Paternity (UAP) which was promulgated in 1960. The act was either fully or partially adopted by the States of Kentucky, Maine, Mississippi, New Hampshire, Rhode Island and Utah. To date, each of these States are still operating under the UAP, with the exception of Rhode Island which has also incorporated many provisions of the Uniform Parentage Act. The primary focus of the UAP was to clarify the obligations of parentage to unwed fathers, placing their liability to a child born to unwed parents on equal footing as a father of child born during the course of a marriage.
In contrast, the Uniform Parentage Act (UPA) promulgated in 1973, focused on the rights of unwed fathers with a primary interest on the parent and child relationship and ensuring that relationship extended equally to every child and every parent, regardless of the marital status of the parent. The UPA was subsequently amended in 2000 and in 2002. The UPA of 2000 incorporated the Uniform Putative and Unknown Fathers Act.
Critics of the 2000 version of the UPA claimed it did not go far enough to protect the rights of all children conceived from assisted reproductive technology or children of same-sex couples. The 2002 version of the UPA addressed a wide variety of family structures that were left unaddressed by prior versions of the UPA, however, it should be noted that UPA of 2002 did not specifically address children of same-sex couples. The UPA of 2002 contains seven substantive articles which address the parent-child relationship, voluntary acknowledgment of paternity, registry of paternity, genetic testing, proceeding to adjudicate parentage, children of assisted conception and gestational / surrogacy agreements. The UPA does not address the issue of physical custody rights or visitation with a child, leaving those matters to be defined and determined pursuant to the relevant laws of each State.
The UPA of 1973 was adopted by nineteen States including Alabama, California, Colorado, Delaware, Hawaii, Illinois, Kansas, Minnesota, Missouri, Montana, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Rhode Island, Texas, Washington and Wyoming. Since that time, the UPA of 2000 (and amended in 2002) has been adopted by Alabama, Delaware, New Mexico, North Dakota, Texas, Washington, Wyoming, Oklahoma and Utah with the Act being introduced in Illinois in March of this year.
Prior to the promulgation and passage of the UPA and its predecessor, the UAP, both the unwed parents of children and the children of unmarried parents suffered unequal treatment under the laws of many States. The case of Stanley v. Illinois, was a one of the more poignant examples of the unequal treatment of and unwed father.
Peter Stanley, who had lived intermittently for 18 years with Joan Stanley, his partner and mother of their three children, lost his children after the death of Joan on the basis of an Illinois law which stated that the children of unwed fathers become wards of the State upon the death of the mother. Mr. Stanley appealed the State’s action, claiming that he had never been shown to be an unfit parent and that since married fathers and unwed mothers could not be deprived of their children without such a showing, he had been deprived of the equal protection of the laws guaranteed him by the Fourteenth Amendment. The Illinois Supreme Court agreed that Stanley’s own unfitness had not been established, but rejected his claim of equal protection, thereby upholding the decision that Mr. Stanley’s children could be taken from him upon proof of the single fact that he and the dead mother were not married.
The U.S. Supreme Court ruled that under the Due Process Clause of the Fourteenth Amendment, Mr. Stanley was entitled to a hearing on his fitness as a parent before his children could be taken from him. The Court further ruled that a State cannot merely presume that unwed fathers in particular are unsuitable and neglectful parents. Parental unfitness needed to be established on the basis of individualized proof.
Before Stanley reached the U.S. Supreme Court, two other cases had addressed the issue of rights of unwed parents and their children. Both cases concerned Louisiana’s wrongful death statute which on moral basis, made it impossible for unwed parents and children of unwed parents to recover for wrongful death. In Levy v. Louisiana, the appellant brought a wrongful death action on behalf of the five children of an unwed mother. The action was dismissed on the basis that illegitimate children, or children of unwed mothers, had no right under the law in Louisiana to bring a wrongful death action. Similarly, in Glona v. American Guarantee & Liability Insurance Co., Ms. Glona’s son was killed in a car accident in Louisiana. Both Ms. Glona and her son were from Texas, and had the accident occurred in Texas, Ms. Glona would have had no issue filing for the wrongful death of her son. However, because Louisiana’s law applied in the case, Ms. Glona was denied her ability to file for wrongful death simply because she was an unwed mother and her son was deemed illegitimate under the law.
In both cases, the U.S. Supreme Court held that the Louisiana’s law was unconstitutional in that it caused outright discrimination contravening the Equal Protection Clause of the Fourteenth Amendment, since legitimacy or illegitimacy of birth had no relation to the nature of the wrong allegedly inflicted on the mother of the children in Levy, and barred recovery for damages to the parent of an illegitimate child while allowing such recovery to the parent of a legitimate child in Glona.
Prior to its passage of the UPA in 1992, California’s law as it related to unwed fathers who had a child with a married woman was a conclusive bar to the unwed father’s ability to establish his parentage of the child or seek any type of custody or visitation rights with the child. The law was challenged in Michael H. v. Gerald D., wherein Michael had a child with Carole D., a married woman. Michael and Carole lived for some time together raising their daughter Victoria D. At some point, Carole and her husband Gerald, reconciled and Carole took Victoria to live with her and Gerald. Michael filed an action to establish his paternity and seek visitation rights with Victoria.
The court granted Gerald’s request for summary judgment on the basis that there were no issues of fact as to paternity under Cal.Evid. Code § 621, which provided that a child born to a married woman living with her husband, who is neither impotent nor sterile, is presumed to be a child of the marriage, and that this presumption may be rebutted only by the husband or wife, and then only in limited circumstances. The court also denied Michael’s and Victoria’s motions for visitation pending appeal under Cal.Civ. Code § 4601, which provided that a court may, in its discretion, grant reasonable visitation rights to any person having an interest in the child’s welfare stating that it found that allowing such visitation would violate the intention of the legislature by impugning the integrity of the family unit. Michael filed an appeal based on procedural and substantive due process claims and Victoria appealed based on due process and equal protection claims. The California Court of Appeals affirmed the lower court’s ruling and also rejected Victoria’s assertion of a right to continued visitation with Michael under § 4601, on the ground that California law denied visitation against the wishes of the mother to a putative father who has been prevented by § 621 from establishing his paternity.
The U.S. Supreme Court found that California’s law did not infringe upon Michael’s or Victoria’s procedural or substantive due process rights thereby upholding the State’s overriding social policy that the husband should be held responsible for the child and that the integrity and privacy of the family unit should not be impugned. Further, the Court found that California’s law did not violate Victoria’s equal protection rights in that unlike her mother and presumed father, she had no opportunity to rebut the presumption of her legitimacy, since the State’s decision to treat her differently from her parents pursues the legitimate end of preventing the disruption of an otherwise peaceful union by the rational means of not allowing anyone but the husband or wife to contest legitimacy.
While California’s Family Code still contains a provision which conclusively presumes that the child of a wife cohabiting with her husband, who is not impotent or sterile, is presumed to be a child of the marriage, the Code now provides a mechanism for the presumption to be rebutted.
B. The Rights of Unwed Fathers
Pursuant to the UPA of 2002, an unwed father may establish himself as the legal father by:
1. Residing in the same household as a child during its first two years of life, and openly holding the child out as his own;
2. Acknowledging his paternity in writing with the appropriate court or state Vital Statistics Bureau;
3. Being adjudicated as the child’s father as the result of a judgment in a paternity action or adoption;
4. Consenting to an assisted reproduction under Article 7 of the UPA;
5. Being adjudicated father in a proceeding confirming a gestational agreement under Article 8 of the UPA.
Under methods 1 through 3 above, the biological father is the legal father but in methods 4 and 5, the biological father may also be the legal father, but that may not necessarily be the case in all instances. The non-court acknowledgment of paternity which gets filed with a State’s Vital Statistics bureau provides for a knowing and voluntary acknowledgment of paternity which is in essence the equivalent of a judgment of paternity and typically can only be challenged by the presumed father with clear and convincing evidence of fraud, duress or material mistake of fact within two years of his signing of the acknowledgment. Pursuant to the Act, an acknowledgment from another State is also given full faith and credit in another State adopting the UPA.
A theme of note in the UPA’s methods for an unwed father to establish his parentage of child is that all of the methods require active participation or engagement by the unwed father. This is consistent with the U.S. Supreme Court’s rulings in a line of cases which began with the Court’s ruling in Stanley in 1972. The following is a snapshot summary of the central issue and the Court’s ruling in the cases of Quilloin v. Walcott, Caban v. Mohammed and Lehr v. Robertson:
· Quilloin v. Walcott, 434 U.S. 246 (1978): Issue: Unwed father who had minimum contacts during the child’s first eleven years of life sought to stop the adoption between the mother of the child and her new husband. Unwed father appealed claiming allowing of adoption under best interests of the child standard violated his due process rights and not permitting him the same veto power of a married father violated his equal protection rights. Holding: Because the result in the adoption in the case was to give full recognition to a family unit already in existence, a result desired by all concerned, except unwed father, the State was permitted in this situation to find only that the adoption was in the best interests of the child and thus did not deprive unwed father of his due process rights. Further, the court ruled that unwed father’s rights were readily distinguishable from those of a separated or divorced father in that he has never exercised actual or legal custody over his child, and thus has never shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of the child.
· Caban v. Mohammed, 441 U.S. 380 (1979): Issue: Unwed father who had lived with and raised children together with mother and maintained contact with children after separation of mother attempted to stop the step-parent adoption between mother and her new husband. Unwed father appealed claiming the State law requiring only the consent of the children’s mother to the adoption and not his consent violated his due process rights. Holding: The State’s law violated unwed father’s equal protection and due process rights in that it was an example of overbroad generalizations in gender-based classifications that placed the rights of women as mothers over the rights of men as fathers.
· Lehr v. Robertson, 463 U.S. 248 (1983): Issue: Unwed father who had never seen or supported the child attempted to vacate the step-parent adoption between the mother of the child and her new husband. Unwed father appealed claiming violation of his due process rights. Holding: The mere existence of a biological link does not merit the same protections owed to an unwed father who demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child. If the natural father fails to grasp the opportunity to develop a relationship with his child, the Constitution will not automatically compel a State to listen to his opinion of where the child’s best interests lie. Further New York had adequately protected appellant’s unexercised interest in assuming his role in the future of his child, in that under the State’s law, Father’s right to receive notice was completely within his control and had he mailed a postcard to the putative father registry, he could have guaranteed that he would receive notice of any adoption proceedings.
No doubt, the Court’s rulings in the above cases conflict with the Court’s ruling in Michael H. v. Gerald D. and it is difficult to reconcile the outcome in that case where the policy of the State of California was upheld while the policy of the State of New York was rejected in Caban v. Mohammed. Certainly, Michael had taken an active role in the raising and support of Victoria.
The various holdings in these cases demonstrate a known fact to practitioners that regularly practice in the area of family law; that the rights of an unwed father is subservient to that of an unwed mother unless and until an unwed father takes steps to establish himself as the father of a child. This necessarily places an unwed father at the mercy of the unwed mother in gaining access to the child and many unwed fathers fail to feel comfortable enough to step forward until invited by the mother to parent the child.
Practitioners should be aware of the unwed father in their consultations with potential clients, particularly those unwed fathers whose child is not yet born or whose child is under the age of three. The takeaway message from the U.S. Supreme Court is that if you are not actively engaged in the support and rearing of your child, your rights may not be as protected as a married father. Affirmative steps should be taken early in potential parentage cases to establish paternity and physical custody rights to children.
Unfortunately, even with early intervention, many unwed fathers often remain frustrated in seeking equal parenting time with their children. To date, there is no U.S. Supreme Court case that confers the right to equal parenting time to parents. The allocation of parenting time and responsibilities has been left largely to the individual states and their courts to oversee and decide. Thus, under the current Constitutional scheme, unwed mothers necessarily will have an advantage in litigation as their rights do not have to be established to maintain a regular relationship with their children. Allocation of parenting time varies widely by individual States and even within different jurisdictional venues within States. One county or circuit may be more generous than another in allocating time and rights between unwed parents. Practitioners representing unwed fathers should be aware of these regional differences in making the initial decision on where to file a case, if the option is available, as the potential outcome in one venue could be profoundly different in another venue.
C. Notice to Potential Birth Father
The U.S. Supreme Court cases in Stanley, Quilloin, Caban and Lehr set a framework under which an unwed father was entitled to due process protections with respect to his parental rights to his fathered child. The framework essentially provides that an unwed father must take affirmative steps to establish himself as a parent early in a child’s life, or risk losing his parental rights through adoption of the child by another party. This is particularly so in the case of infants as there are competing interests between the adoptive parents, the infant child and the child’s natural parents. When the NCCUSL promulgated the Uniform Putative and Unknown Father’s Act in 1988, the Act did not include a putative fathers registry. The comments to the UPA of 2002 indicate that the registry was excluded for three reasons. First, while ignorance of the law is no excuse, most fathers or potential fathers, even very responsible ones, were not likely to know about a registry as a means of protecting their rights, and the objective of a registry it to provide actual protection. Second, an individual State registry would not protect responsible fathers in interstate situations. Third, since the registry relied wholly on unsupported claims by potential fathers, the accuracy of the registry was doubtful and there was a potential for invasion of privacy and for interference with matters of adoption, custody, and visitation.
The UPA of 2002 recognizes and accepts the importance and need for a registry so as to facilitate infant adoptions. When a mother consents to the adoption of her infant child, time is of the essence in placing the infant with adoptive parents. A registry, which has been constitutionally upheld in Lehr, is appropriate and needed in such a case. The UPA of 2002, however, limits the effect of the registry to cases in which a child is less than one year of age at the time of the court hearing. This provision balances the need to expedite infant adoptions with protecting the rights of unwed fathers who may not have registered, but instead have established a relationship with a child following birth. The unwed father has the opportunity to step forward to accept the responsibilities of parenthood, while not derailing infant adoptions. The Act also creates an exception from the registration requirement for those unwed fathers who timely initiate a parentage action.
Arguably, a registry also prevents potential abuses by others involved in the adoption of a child. Subsequent to the U.S. Supreme Court’s decision in Lehr, the courts in the District of Columbia addressed two cases in which adoption agencies had failed to make sufficient efforts to locate the potential fathers of children and in both cases, the unwed father prevailed.
Without a registry, there is a concern about the predictability of adoptions for both adoptive parents and unwed fathers. Adoptive parents obviously want to ensure that if they have followed the appropriate procedures, their adoption and emotional connection to an infant is secure. Unwed fathers simply want the opportunity to be able to parent children they have fathered. If excessive deference is given to unwed, putative fathers, adoptive parents may lose confidence in the possibility of adoption as a parenting option. Adoption is an important institution, but again must be appropriately balanced against the rights of unwed fathers.
D. Putative Father Registry
Currently, there are 29 States that have established putative father registries. The information required for these registries vary by State, but typically include the unwed father’s name, address, social security number, date of birth of the unwed father and birth mother, the child’s name or the expected month and year of the child’s birth and the date the registration was completed.
Pursuant to the UPA of 2002, the person seeking to adopt a child must obtain a certificate of search of the registry of paternity in the State where the adoption is being sought and if the person seeking to adopt has reason to believe the child was conceived in another State, must also obtain a certificate of search from the registry of paternity, if any, in that State.
The agency maintaining the registry is required to furnish to the person requesting the search a certificate that must state that a search has been made of the registry and that a registration has either been found and is attached to the certificate of search or has not been found. The certificate must be signed on behalf of the agency and must be filed with the court before a proceeding for adoption, or termination of parental rights regarding a child may be concluded.
Registering ensures that an unwed father will receive notice of court proceedings relating to a child, but again, time is of the essence. Most States require that a father register within a certain period of time after a child’s birth to be entitled to notice. The amount of time an unwed father has to register to be entitled to notice varies across the States from 60 days to before a mother surrenders a child to the first business day after a child is born.
Uniform Matrimonial and Family Laws Locator, supra; Parentage Act, Uniform Law Commission, National Conference of Commissioners on Uniform State Laws, (last visited April 10, 2015), http://www.uniformlaws.org/Act.aspx?title=Parentag e%20Act.
Parentage Act Summary, Uniform Law Commission, National Conference of Commissioners on Uniform State Laws, (last visited April 10, 2015), http://www.uniformlaws.org/ActSummary.aspx?title=Parentage%20Act.
See, E. Gary Spitko, The Constitutional Function of Biological Paternity: Evidence of the Biological Mothers’ Consent to the Biological Father’s Co-Parenting of Her Child, Ariz. L. Rev. 97 (2006), for a more complete discussion on the dynamics of parenting and the intersection of the constitutional protections of parents.
Child Welfare Information Gateway, The Rights of Unmarried Fathers, U.S. Department of Health and Human Services (2014); Putative Father Registry, American Academy of Adoption Attorneys, (last visited April 10, 2015), http://www.adoptionattorneys.org/aaaa-page/birth-parents/putative-father-registry
List of State Putative Father Registries and Deadlines, Considering Adoption, (last visited April 10, 2015), http://www.1800adoption.com/pregnant/birth-father/list-of-state-putative-father-registries-and-deadlines.