13 Fam. L. Newsl. 1 (1972-1973)

handle is hein.journals/flwnwsltr13 and id is 1 raw text is: 00.2
The Non-Marital Child- Father's Rights Revisited
by Harry M. Fain Beverly Hills, California

In the case of Peter Stanley, Sr., Petitioner, v. State of Illinois,
(decided April 3, 1972 [             U.S_             ] the
Supreme Court of the United States further expanded and
gave meaningful interpretation to the due process and equal
protection clause of the United States Constitution as applied
to the relationship between a father and illegitimate children.
The facts were briefly as follows:
Peter   Stanley   and   Joan   Stanley  lived  together
intermittently for a period of eighteen years without the
benefit of marriage. During this time they had three children.
When Joan Stanley died, Peter was deprived of legal custody
of his children because under Illinois law, the children of
unwed fathers became wards of the state on the death of the
mother. In a dependency proceeding, instituted by the State
of Illinois, two of Stanley's children were declared wards of
the State and placed with court appointed guardians. Under
the applicable statute, children of an unmarried father, on
death of the mother, are automatically declared dependents
without any hearing on parental fitness and without proof of
neglect. By contrast, such hearing and proof is required by the
State when it involves custody of children of married or
divorced parents and unmarried mothers. In reversing the
decision of the Illinois Supreme Court which upheld the
statutory scheme and action of the Illinois courts, the
Supreme Court of the United States, by Justice White (Chief
Justice Burger and Justice Blackmun dissenting) held that the
denial to unwed fathers of a hearing on fitness (which is
accorded to all other parents whose custody of their children
is challenged by the States) constitutes a denial of the equal
protection of the law. The Supreme Court further held that
under the due process clause of the Fourteenth Amendment,
Petitioner was entitled to a hearing on his fitness as a parent
before he is deprived of their custody. A state cannot,
consistent with due process requirements, presume that
unmarried fathers in general are unsuitable and neglectful
parents. Parent unfitness must be established on the basis of
individualized proof in each case.

The case is timely and welcome. It partly answers an
important question which was raised by the Supreme Court in
Levy v. Louisiana. 1 In Levy the Supreme Court held, on the
basis of the Equal Protection Clause, that illegitimate children
could recover for the wrongful death of their mother, and a
mother could recover for the wrongful death of her illegiti-
mate child. In so holding, the Supreme Court declared
Unconstitutional a Louisiana wrongful death statute which
had restricted such recovery to legitimate children. Levy left
open for future determination whether and to what extent
manifold discriminations which continue to be imposed by
State and Federal law in the relationship between father and
illegitimate child, are subject to Constitutional attack.
The partial answer to this question comes at a particularly
appropriate time of our national life, when one out of fifteen
children is now born illegitimate, and in some urban areas the
rate exceeds 50%.2
The rapid increase of illegitimacy has placed heavy
responsibility upon our local, state and national governments,
both in terms of social and economic burdens. Therefore, to
the extent that law can give affirmative recognition to the
rights of both legitimate and illegitimate children on a basis of
equality, the primary resources for such equality of treatment
must come from the parents, especially the father (whether
wed or unwed).
Justice White re-emphasizes the social considerations and
the importance of the fanily unit in protecting both the
children and father's rights (even the unwed father), as
The private interest here, that of a man in the children he
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,
*Mr. Fain is a practicing attorney in Beverly Hills, California,
formerly Chairman of the Family Law Section (1968-1969) and now
Chairman of the Custody Committee, Family Law Section.

Copyright C 1972 American Bar Association

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