This is а case concerning an illegitimate child and the legal rights that surround such a child. The specific question before us is whether the putative father of an illegitimate child has the right to a hearing in county court on his petition to have reasonable visitаtion with that child. We hold that he does have the right to such a hearing. Our decision is rendered in this case without regard to the effect of Acts 664 and 665 of 1981 which will, no doubt, be a determinative factor in any cases arising after their effective dates.
There is no dispute over actual paternity in this case since the parties agree that the appellant, Andrew A. Roque, is the father of the child. Roque and the mother, Deborah Ann Frederick lived together intermittently in California before and after the child was born in 1977. They were never married. After the child was about five months old the parents separated and have remained so since. After separation Roque began paying support to Frederick for the child. First he paid §150.00 a month for about seven months; then §200.00 a month for about eight months. During this time Roque regularly visited the child. There has never been a legal determination of paternity.
Frederick moved to Arkansas with the child and they have remained here. Roque, a California resident and a practicing physician, filed a petition in the County Court of Washington County seeking a legal declaration that he is the father of the child and asking for reasonable visitation privileges. He offered to pay support for the child. Frederick resisted Roque’s right to file such а petition or have visitation privileges. When Frederick admitted in a deposition that Roque was the father and had supported the child, Roque filed a motion for summary judgment. Frederick countered with a motion to dismiss Roque’s petition, claiming that Roque lаcked standing. The county court ruled that Roque’s petition must be dismissed because Arkansas law does not permit a father to file such a petition, that right being granted only to a mother. On appeal to the circuit court the case was considerеd de novo and the same conclusion was reached.
Roque’s argument on appeal to us is based on the Equal Protection and Due Process Clauses of the United States Constitution. He argues that the Arkansas statutes granting mothers the right to file a petition against a man to have him declared the father but not granting a father the right to file a suit establishing his own paternity violates the Equal Protection Clause. This argument is based on cases which have struck down other unjustifiable gender-based statutes. See Orr v. Orr,
Frederick’s argument is based on the common law and the Arkansas statutes. She cites two рrinciples as controlling: the mother, not the putative father, of an illegitimate child is bound to maintain it, Davis v. Herrington,
Nowhere in these statutes, or any others relating to bastardy proceedings, is there any mention of the right of a man to file a petition in county court to have paternity declared in his favor. There is no mention of any right of a father to visit his child except as provided for in Ark. Stat. § 34-715 (Supp. 1979). (See Foоtnote 1.)
The law concerning illegitimate children and the rights of the natural parents of such children has changed in recent years. For centuries the laws have been harsh. For example, in the Old Testament there is a law that for ten generations “No bаstard shall enter the Assembly of the Lord.” Deuteronomy 23:2. The law has been harsh for perhaps two reasons: to punish those who go against society and to foster the state of marriage. Even so the result has been that the child usually bears the brunt of social and legal discrimination, not the parents who committed the moral and legal wrong.
The law has changed because it must. Whatever wrongs the parents did are no fault of the child, and whatever wrong the parents did should not forever deny them the privileges that other parents enjoy. People should be allowed to acknowledge their mistakes and try to rectify them. So the law has changed from discrimination against illegitimate children and unwed parents to a more tolerant view.
Within the last few years the Unitеd States Supreme Court has struck down state laws which prohibit an illegitimate child from inheriting property from his father, while permitting inheritance from the mother. Labine v. Vincent,
Fathers of illegitimate children do have certain rights. In Lipsey v. Battle,
Other states have recognized certain basic rights in fathers of illegitimate children, either as a matter of equal protection or due process of law. State v. Edwards,
In Stanley v. Illinois,
The court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed “essential,” Meyer v. Nebraska,262 U.S. 390 (1923), “basic civil rights of man,” Skinner v. Oklahoma,316 U.S. 535 , 541 (1942), and “[r]ights far more precious ... than proрerty rights,” May v. Anderson,345 U.S. 528 , 533 (1943). “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts,321 U.S. 158 , 166 (1944). The integrity of thе family unit has found protection in the Due Process Clause of the Fourteenth Amendment ... [citation], the Equal Protection Clause of the Fourteenth Amendment, ... [citation], and the Ninth Amendment, ... [citation].
Nor has the law refused to recognize those family relationshiрs unlegitimized by a marriage ceremony. The Court has declared unconstitutional a state statute denying natural, but illegitimate children a wrongful-death action for the death of their mother, emphasizing that such children cannot be denied the right of other childrеn because familiar bonds in such cases were often as warm, enduring, and important as those arising within a more formally organized family unit. Levy v. Louisiana,391 U.S. 68 , 71-72 (1968). “To say that the test of equal protection should be the ‘legal’ rather than biological relationshiр is to avoid the issue. For the Equal Protection Clause necessarily limits the authority of a State to draw such ‘legal’ lines as it chooses.’’ Glona v. American Guarantee Co.,391 U.S. 73 , 75-76 (1968). [Emphasis added.]
The Court held that Illinois was barred as a matter of both due process and equal protection from taking custody of the children of a putative father absent a hearing and a finding the father was unfit.
In Quilloin v. Walcott,
We can only conclude that fathers of illegitimate children have basic rights when the welfare of their children is conсerned. Those rights are not absolutely definable nor can they be. In every case that we have cited, the father has shown an interest in the child; before seeking legal relief the father sought to accept some responsibility for the child and was able to show that a relationship of some kind existed between himself and the child.
In this case Roque will have no rights unless he can be declared the father, a fact this is undisputed. Both parties acknowledge that he is the father; it is undisputed that he has supported and visited the child. In such circumstances, can Arkansas law deny him any right to have even a hearing on his request to visit his child? Not according to Stanley v. Illinois, supra, and Quilloin v. Walcott, supra.
Where can Roque have a hearing? The mother argues not in сounty court since the statutes do not permit it. We held in Rapp v. Kyzer,
The only logical and indeed the proper forum is county court. The constitution explicitly places jurisdiction in that court in “all matters relating to ... bastardy.” Ark. Const. Art. 7, § 28. [Emphasis added.]
We have not addressed all the relative rights of a putative fathеr. Custody is not before us, only a request for a paternity declaration and visitation rights. Furthermore, we do not have a case where paternity is disputed or where a putative father has never shown an interest in a child.
The judgment of the circuit court is rеversed with directions to reinstate the petition of Roque and grant him a hearing in the county court regarding his petition for paternity and visitation. Roque’s request for visitation privileges will require the consideration of numerous factors. The most important fаctor is the best interest of the child. Quilloin v. Walcott, supra; Rothstein v. Lutheran Social Serv.,
Reversed and remanded.
Notes
Since the briefs were filed in this case the General Assembly passed two acts that relаte to the subject of this case. Act 664 grants to any man the right to file a petition for a determination of paternity. Act 665 provides that a man who has been declared the father of an illegitimate child may petition for custody of the child. The Acts will apparently be effective July 17, 1981.