Lead Opinion
Relying solely on the claimed unconstitutionality of subdivision 3 of section 111 of the Domestic Relations Law, pertaining to the consent required for adoption of a child born out of wedlock, appellant appeals directly from a Family Court order of adoption.
Heather Alison Malpica-Orsini was born out of wedlock to Corrine Caberti on November 16, 1970. Appellant Hector Orsini lived with the child and her mother until June, 1972. On September 8, 1972, in a proceeding in which appellant admitted paternity, an order was entered in Family Court, New York County, adjudging appellant to be the father of the child and, pursuant to agreement, directing the payment by him of a monthly sum for support and granting to him visitation rights.
In February, 1973, Corrine Caberti married respondent Charles Blasi, and on June 21, 1973, respondent filed a petition in Family Court, Westchester County, praying for approval of his adoption of the child and alleging his marriage to the natural mother. Appellant then moved in said proceeding for an order enforcing his visitation rights as set forth in the filiation order, granting him notice and an opportunity to be heard in all proceedings concerning his daughter and dismissing the petition for adoption. He contended therein that subdivision 3 of section 111 of the Domestic Relations Law, which limits consent to the adoption of a child born,out of wedlock to the natural mother, is unconstitutional in that it violates the due process and equal protection clauses of the United States Constitution by unjustly discriminating between fathers of children born out of wedlock and all other parents.
The right to adoption of children and strangers to the blood, while known to ancients such as those of Greece and Rome and recognized by different continental nations under the civil law, was unknown to the common law and exists only by statute (Betz v Horr,
Since adoption is purely a statutory matter ("Doe” v "Roe”,
We approach the constitutional testing of this statute with certain well-established principles in mind: that a legislative enactment carries with it an exceedingly strong presumption of constitutionality; that, while this presumption is rebuttable, unconstitutionality must be demonstrated beyond a reasonable doubt; that every intendment is in favor of the statute’s validity; that the party alleging unconstitutionality has a heavy burden; and that only as a last resort will courts strike down legislative enactments on the ground of unconstitutionality. Nor may courts substitute their judgment for that of the Legislature as to the wisdom and expediency of the legislation.
Under the doctrine of separation of powers, courts may not legislate (Bright Homes v Wright,
In measuring appellant’s claim of a denial of equal protection, it is necessary to consider various standards of review. It has been observed that there is hardly a law on the books that does not affect some people differently from others (see San Antonio School Dist. v Rodriguez,
Adoption laws in the United States are founded upon broad humanitarian principles and the public policy involved in_the statutes is one of beneficence (2 Am Jur 2d, Adoption, § 3). Embodied in our adoption statute is the fundamental social concept that the relationship of parent and child, with all the personal and property rights incident to it, may be estab
Adoption is a means of establishing a real home for a child (see Schatkin, Disputed Paternity Proceedings [3d ed], p 119). In "Adopting a/Child Today” (1965) by Isaac, described by the National Council of Adoptive Parents Organizations as being "far and away the best book on adoption, foster care, and related subjects in the field,” it is stated at pages 210-211: "Adoption has always had the dual function of giving children homes and homes children * * * The emphasis is now on promoting the welfare of an otherwise homeless child. This change is partly the result of the increasing importance of psychiatry and psychology, which have revealed the role of a happy family life in producing well-adjusted citizens, and partly the inevitable response to a totally changed situation. Illegitimacy and family breakdown have become problems on an unprecedented scale in modern industrial societies. Never before have there been so many thousands of children for whom society finds each year that it must make some provision. * * * the purpose of adoption is almost uniformly seen as promoting the welfare of children.”
To require the consent of fathers of children born out of wedlock (see General Construction Law, § 59), or even some of them, would have the overall effect of denying homes to the homeless and of depriving innocent children of the other blessings of adoption. The cruel and undeserved out-of-wedlock stigma would continue its visitations. At the very least, the worthy process of adoption would be severely impeded.
Great difficulty and expense would be encountered, in many instances, in locating the putative father to ascertain his willingness to consent. Frequently, he is unlocatable or even unknown. Paternity is denied more often than admitted. Some birth certificates set forth the names of the reputed fathers, others do not.
Couples considering adoptions will be dissuaded out of fear of subsequent annoyance and entanglements. A 1961 study in Florida of 500 independent adoptions showed that 16% of the couples who had direct contact with the natural parents reported subsequent harassment, compared with only 2% of
Some of the ugliest disclosures of our time involve black marketing of children for adoption. One need not be a clairvoyant to predict that the grant to unwed fathers of the right to veto adoptions will provide a very fertile field for extortion. The vast majority of instances where paternity has been established arise out of filiation proceedings, compulsory in nature, and persons experienced in the field indicate that these legal steps are instigated for the most part by public authorities, anxious to protect the public purse (see Schaschlo v Taishoff,
Marriages would be discouraged because of the reluctance of prospective husbands to involve themselves in a family situation where they might only be a foster parent and could not adopt the mother’s offspring.
We should be mindful of the jeopardy to which existing adoptions would be subjected and the resulting chaos by an unadulterated declaration of unconstitutionality. Even if there be a holding of nonretroactivity, the welfare of children, placed in homes months ago, or longer, and awaiting the
Certainly, these facts demonstrate that the classification is reasonable, not arbitrary, and, keeping in mind the paramount consideration of a child’s welfare, the legislative action is justified.
Although, in some cases, the Supreme Court has not clearly articulated the equal protection standard to be applied in cases involving illegitimate children, considerable clarification has evolved from Weber v Aetna Cas. & Sur. Co. (
As pointed out in a Comment, entitled "Illegitimacy and Equal Protection” (49 NYU L Rev 479), the Weber decision is an extremely important one in two respects (pp 485-486):
"First, it marks one of the most overt attempts by the Court to escape the rigid two-tier framework of equal protection analysis within which all cases, as Levy [
"Second, the Court’s discussion of the competing interests in this controversy is by far the most informative of all the illegitimacy opinions. Though far from comprehensive, it contains enough discussion to facilitate an understanding of the reasoning which led to the holding. Thus it provides a starting point for analysis of other opinions and other controversies.” Weber has been followed and cited in subsequent Supreme Court decisions, i.e., New Jersey Welfare Rights Organization v Cahill (
The welfare of a child is a legitimate State interest and the State has a wide range of power for limiting parental freedom and authority in matters affecting the child’s welfare (Prince v Massachusetts,
To contend that at least some of the fathers of children born out of wedlock should be accorded the option or veto of consent is meaningless as far as ameliorating the problem. To grant this right to those who acknowledge paternity would require a most difficult search and constant inquiry. To extend it to those who have contributed to the support of the child would be an excursion into relative values difficult of proof. To allow it for fathers adjudicated to be such in compulsory proceedings would not alleviate the situation measurably since they are likely to be resentful and their legally enforced nexus with the child bears no relationship to their entitlement. The mere possibility of a presently existing right on the part of even some fathers, or one that might be acquired at a later date, no matter how restrictive the group to whom the right granted may be, is enough to discourage a wide range of prospective placements and adoptions.
Stanley v Illinois (
Due process was not lacking here. Although this was an adoption proceeding, appellant Orsini, having been given notice by court direction, the right to object and a full hearing with representation by an attorney, was not deprived of due process (see Domestic Relations Law, § 111). At the hearing, it was stipulated that "if the parties were called to testify that the Court would have sufficient facts before it, other than abandonment or other waiver of rights by Mr. Orsini, to exercise its discretion to deny his objections and approve the adoption on the grounds that the overall best interest of the child would warrant it”.
In this specific case, there are allegations in the record that appellant was "seriously in default in payments” under the 1972 Family Court order, that when the mother applied for welfare support she was told she would have to file a petition alleging paternity, that he was given to "violent rages”, that on two occasions he tore a telephone off the wall, that he ripped all the electric wires out of the mother’s car and threatened to take the child and disappear so the mother could never see her.
Neither was there a denial of equal protection in this matter. In Stanley, the court found no basis for the classification which resulted in the absence of notice and hearing to appellant. Orsini’s rights were protected by the notice and hearing. In the instant case, there are several compelling reasons supporting a different legislative classification, tested even under different standards, for fathers of children born out of wedlock, so as to justify a denial to them of such a powerful veto over adoptions of illegitimate children—indeed over their welfare—which should be the primary public concern (see 70 Mich L Rev 1581, 1611). The proper course was followed here by centering the review on the merits of the controversy at hand and by conducting a realistic examination of the conflicting policies and interests involved in the chai
Of course, the primary concern of the Legislature and the courts is with the welfare of the children involved rather than with the allocation of rights between the mother and the usually uncertain and reluctant father of the children born out of wedlock. In this context, legislation and policy are governed by general conditions rather than the special circumstances of a sympathetic and idiosyncratic situation. Moreover, as noted earlier, the father in this case was given notice and an opportunity to be heard on the issue of what was in the best interest of the child.
Judicial interference with the wisdom exercised by the Legislature in this regard is not warranted.
The judgment of the Family Court, Westchester County, should be affirmed, without costs.
Dissenting Opinion
I cannot agree with the views announced today by the majority. I must conclude that the decision and the opinion of the Supreme Court of the United States in Stanley v Illinois (
In the first place, on the due process aspect of the case, I take it that all the members of the court agree that an unmarried father has such a "cognizable and substantial” interest in the custody of his illegitimate children as entitles him to notice of proceedings for the adoption of such children (Rothstein v Lutheran Social Servs. of Wis.,
The right of active participation in presenting evidence and in making arguments with respect to the ultimate issue before the adoption court—the best interests of the child—is not at all the same, however, as requiring the consent of the father as a prerequisite to granting the adoption—in effect granting him not only a right of participation but also a potential right of veto. It is appellant’s position, predicated on the equal
It is true that the precise issue decided in Stanley was much narrower. An Illinois statute was held unconstitutional when, after the death of an unwed mother, it gave the right of custody of the child to the State in preference to the right of the unmarried father, a right denied the State in the case of a married father. The language chosen to express the position of the court, however, is very broad indeed.
In effect Stanley held that a State may not terminate the relationship between an unmarried father and his illegitimate child on any ground other than one on which the relationship of a married father with his legitimate child may be terminated, and that any statute authorizing a different result is unconstitutional (
Following the Supreme Court’s decision in Stanley, it remanded two adoption cases to State courts for reconsideration in the light of Stanley (Rothstein v Lutheran Social Servs. of Wis.,
On remand in Valderlaan, the Appellate Court of Illinois (9 Ill App 3d 260), overriding explicit statutory proscription, awarded custody of two illegitimate sons to their unmarried father.
In particular I am unable to discern precisely the standard invoked here by the majority to test whether there has been a denial of equal protection. I would be obliged to characterize its conclusion "that the classification is reasonable, not arbitrary, and [that], keeping in mind the paramount consideration of a child’s welfare, the legislative action is justified” (supra, p 574) as little more than language of result engrafted on a rational basis test.
In consideration of equal protection arguments, therefore, there is a threshold issue first explicitly to be confronted and clearly to be resolved, namely, by what standard shall the assertions of denial of equal protection be measured (cf. McDonald v Board of Election,
I recognize that the categorical "two-tiered” approach has come under increasing criticism for its apparent inflexibility. (See, e.g., Gunther, n 4; and see Mr. Justice Marshall’s dissenting opinion in San Antonio School Dist. v Rodriguez,
In my view the interests here affected by the challenged law —the rights of a natural father with respect to his own child —are fundamental and thus entitled to a higher level of constitutional protection. A statute providing for unequal treatment of those interests, i.e., differentiating between married and unmarried fathers, can only be sustained on a demonstration that it meets a strict scrutiny test.
My conclusion that a natural father’s rights and interest in his own child are implicitly recognized and protected by the Constitution stems from my conception of the basic civil rights of man—rights "so rooted in the traditions and conscience of our people as to be ranked as fundamental” (Snyder v Massachusetts,
"The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children 'come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.’ * * *
"The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed 'essential,’ * * * 'basic civil rights of man’ * * * and '[r]ights far more precious * * * than property rights’ ”. (Emphasis added.) Compare Cleaver v Wilcox (40 US Law Week 2658 [US Dist Ct, ND Cal], revd in part on other grounds 499 F2d 940) wherein it was stated (p 2659): "The parent’s interest in the liberty of the child, in his care and in his control, has long been recognized as a fundamental interest.”
There is discrimination here as to a fundamental right and I conclude, therefore, that the strict scrutiny test is applicable. Thus I depart from the "rational basis” test apparently adopted by the majority.
On my analysis attention must then turn to whether the statutory differentiation here meets the demands of that higher level of scrutiny—i.e., both that it is warranted by a compelling governmental interest and that the means employed are the least restrictive.
Very much the same considerations which lead me to the conclusion that the rights of a natural father with respect to his own child are so fundamental and constitutionally cognizable as to call for application of the strict scrutiny test, lead me to conclude that the interests of the State in the welfare of illegitimate children are so compelling as, without more, to satisfy the first branch of the strict scrutiny test. Historically the State has been recognized as having an overarching interest in the care and well-being of all its children. I would require no more to establish the requisite "compelling state interest”.
My conclusion that the challenged provisions of section 111 should be struck down under the equal protection clause is
There has really been no focus on this branch of the test, nor does the majority now undertake to do so. No contention has been advanced by those who would support the present provisions of section 111, that resort to its blunderbuss approach was necessary to achieve the desired objective, or that such objective could not have been achieved less drastically and without the overbreadth of the present provisions. The constitutional infirmity in the present statute, in my view, stems from its categorical exclusion of all unmarried fathers. As the court wrote in Stanley (
I am satisfied that more appropriate and selective procedures could have been found to satisfy the compelling State interest. (See Comment, The Emerging Constitutional Protection of the Putative Father’s Parental Rights, 70 Mich L Rev 1581, 1590.) For instance several States have adopted legislation authorizing the adoption court on an ad hoc basis in individual cases to dispense with the requirement of consent of a parent—father or mother, married or unmarried—when there has been an appropriate finding that insistence on such consent would not be in the best interests of the child (see, e.g., Ariz Rev Stat Ann., § 8-103 et seq.; DC Code, § 16-304, subd [e]; Md Code Ann., art 16, § 74; Va Code, § 63.1-225, subds [2], [4]). Under the Arizona statute the right of consent is extended to the father of an illegitimate child where paternity has been established in court or where he has acknowledged paternity in a sworn affidavit filed either with a court or the adoption agency prior to or at the time of the filing of the petition for adoption. The statute authorizes the court to "waive” the consent right if it determines that the best interests of the child will be promoted thereby. This waiver provision applies to maternal as well as to paternal consent. (See Tabler, Paternal Rights in the Illegitimate Child: Some Legitimate Complaints on Behalf of the Unwed Father, 11 Journal of Family Law 231, 245-247.) Such a statutory pattern, and there are doubtless others, would meet the test laid down by the Supreme Court: "in other words, the classification must be tailored so that the exclusion of appellant and members of his class is necessary to achieve the articulated state goal.” (Kramer v Union Free School Dist.,
I conclude that the State has not met its “heavy burden of justification” (Dunn v Blumstein, supra, p 343) and, therefore, that section 111 of our Domestic Relations Law must be held unconstitutional to the extent that it authorizes adoption without the consent of the father of a child born out of wedlock while at the same time it categorically forbids adoption without consent on the part of the father of a child born in wedlock.
I recognize that the position of the Supreme Court (and what, in my view, should be that of our court) may strike some as startling in the light of the difference our society has traditionally attached to birth in wedlock as distinguished from birth out of wedlock. I note, however, that when viewing the father-child relationship from the point of view of the child, the Supreme Court has long held that an illegitimate child is entitled to precisely the same rights as a legitimate child (Jimenez v Weinberger,
Further, the practical implications of the decision which I think we are mandated to make would not be so disturbing as might at first appear.
To the extent that there is not already adequate provision in the present statute to protect against what are visualized and catalogued by the majority as the horrors which would attend a determination of unconstitutionality in this case, it is open to our Legislature to consider statutory amendment specifically to authorize dispensing in any particular case with the necessity for the consent of any parent, married or unmarried, father or mother.
In substance I conclude that the Supreme Court has held that the rights between a parent and his child are not to be determined by whether or not they agree to marry. Thus, the divorced and long-separated father, because once there was a marriage, shall not be recognized as having rights substantially greater than those of a natural father who has never been married.
Although a general principle of law, and perhaps particularly of family law, must, of course, be grounded in more than the appealing facts of an individual case, the factual setting of the present case should not be wholly ignored.
This man and this woman began living together as husband and wife in February,. 1969. They continued to do so for more than two years after the birth of their daughter in November, 1970. When it became known early in 1970 that the woman was pregnant, the man proposed marriage but the woman
The father, mother, and daughter continued to live together as a family unit until June, 1972 when the mother forced the father out of their apartment. The father nonetheless continued to pay the apartment rent. When the mother instituted a formal paternity suit in August, 1972, the father promptly appeared and readily admitted paternity. An order of filiation was entered on September 8, 1972, and the father thereafter regularly made support payments in the amount of $150 per month as directed by the terms of such order. He continued to exercise rights of visitation granted to him therein. He made numerous appointments for family counseling in the period from September, 1972 to February, 1973; the mother appeared but once. In January, 1973 the mother began returning his support payments; she moved to a new address, took the child with her, and refused the father rights of visitation.
On April 12, 1973 at a hearing in a proceeding instituted by the father in Family Court to enforce his rights of visitation, the mother announced that she had been married the preceding February and her new husband wanted to adopt the child. The adoption proceeding was instituted. Family Court directed that notice be given the father, and he appeared and opposed the adoption. The present direct appeal is from the order of adoption of Family Court in which it was held that the consent of the natural father was not a condition precedent to adoption.
In short this record discloses the existence of a genuine family unit into which this child was born and in which she was reared until removed by unilateral action of the mother. The full and attentive participation and commitment of this father both emotionally and in provision of material care is movingly disclosed. It is true that the parents were never formally married, but the vitality of this family unit for many months paralleled and exceeded the vitality which follows many solemnized marriages.
In my view the order of Family Court, Westchester County, should be reversed, section 111 declared unconstitutional to the extent indicated, and the petition for adoption denied unless the natural father of the child shall consent thereto or
Notes
. In Levy v Louisiana (
. Those classifications considered "suspect” in the constitutional sense include race (see, e.g., Loving v Virginia,
. Those interests identified as "fundamental” in the constitutional sense include the right to vote (Dunn v Blumstein, supra; Kramer v Union Free School Dist.,
. For an analysis of this "two-tiered” approach see, generally, Gunther, The Supreme Court, 1971 Term—Forward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection (86 Harv L Rev 1); Comment, Equal
. Appellants argue that the strict scrutiny standard of review is here mandated not only because the challenged statute interferes with a fundamental right but further because it makes a classification in two "suspect” categories—first, sex (as between the natural mother and the natural father of the illegitimate child), and second, illegitimacy (as between the father of an illegitimate child and the father of a legitimate child). While I find these arguments relevant and interesting, according to my reading, to date only four Justices of the Supreme Court have concluded that sexual discrimination involves a "suspect classification” (see Frontiero v Richardson,
. While Skinner v Oklahoma (
. For an expression of anxiety see, e.g., Fathers’ Rights—Supreme Court Rulings On Adoption Complicate the Placing of Children, Wall Street Journal, July 9, 1973 (col 1). Even if it were to be conceded, which I am not prepared to do, that striking down the challenged provisions of section 111 would necessarily cause some disarray or more in adoption matters, the result should not be different. In People ex rel. Anonymous v New York Foundling Hosp. (
Dissenting Opinion
While joining fully in the opinion of my fellow dissenter, I would add sex discrimination as an explicit reason for the declaration of section Ill’s unconstitutionality. There appears to me to be no sufficiently principled distinction between requiring equal protection as between married and unmarried fathers, on the one hand, and as between an unmarried mother of a child and its unmarried father, on the other.
The statute here results in a denial, without regard to the merits, of the natural right of the father, not because the welfare of the child demands it, nor because there is any serious question but that he is a model father, but simply because he is the male rather than the female parent.
Judge Jones’ faultless reading of the Supreme Court’s expressions on sex as a "suspect” classification does indeed prove the subject to be, at best, still in a state of ferment in that court. Nevertheless, I believe we should go beyond that in finding a stricter protective constitutional standard for New York, as we have a right to do. (Oregon v Hass,
I would add most respectfully that I cannot accept the majority’s prophesy that removal of the one-sided limitation suffered by the father under section 111 would have a deleterious affect on adoptions. The emphasis should at all times be on the welfare of the child and, if there is to be veto by either parent, it should apply to both mother and father alike. Recently published research by pediatric psychiatrists indicates that by the time a child is well over two years old, the age bracket of the child here at the time the mother separated it from its father, there would have been a development of strong emotional bonds between father and child, and that the severance of these bonds might well bring in its wake a devastating and lasting personality deficit for the child. (Goldsmith, Freud, & Solnit, Beyond the Best Interests of the Child [1974].)
Chief Judge Breitel and Judges Jasen, Gabrielli and Wachtler concur with Judge Cooke; Judge Jones dissents and votes to reverse in a separate opinion in which Judge
Judgment affirmed.