The Impact of Stanley v. Illinois on Custody Proceedings for Illegitimate Children: Procedural Parity for the Putative Father?


One out of every ten children born in the United States is illegitimate. Despite evidence of both the permanence and growth of this phenomenon, society persists inits hostile attitude toward out-of-wedlock unions and their offspring. Such animosity often finds expression in statutory and judicial approaches in this area. A Pennsylvania court, summarizing the stigma attached to illegitimacy, wrote:

Illegitimacy continues to strike a discordant and jarring note in our society. It isregarded as the fruit of a union of shame, irreverence and depravity. We have not yet achieved that sophistication which would allow us to deal with this problem without passion.

One area in which such societal prejudice is evidenced is in the contrasting treatment afforded legitimate and illegitimate children when questions of custody arise. Progressive laws have been developed for dealing with legitimate offspring. During the nineteenth and early twentieth centuries, the ancient common law notion that children born in-wedlock were the property of their father was discarded, and the Best Interests Doctrine, which made the welfare of the child the controlling factor in the custody determination, was almost universally adopted. The traditional formulation of the court’s role in applying the Best Interests Doctrine was enunciated by Judge Cardozo:

[The trial judge] acts as parens patriae to do what is best for the interests of the child. He is to put himself in the position of a ‘wise, affectionate, and careful parent’ and make provision for the child accordingly.

Thus, in the event of parental separation, the court examines both the mother and the father, and, in principle, custody is awarded solely on the basis of whose care would best foster the child’s welfare. These rules have been codified; Section 70 of the New York Domestic Relations Law is a prime example.

In contrast, societal prejudice continues to permeate judicial disposition of children born out-of-wedlock. At ancient common law, partly in an effort to shield the English upper classes from the claims of offspring procreated in illicit liaisons with persons of a lower social status, illegitimate children came within the doctrine of filius populi. Accordingly, custody and the incidents of parenthood were placed in the local church parish. During the nineteenth century, the rule was changed to grant exclusive custody to the mother. Subsequently, most common law jurisdictions accepted the putative father as a possible custodian,  and the Best Interests rule was, in theory, made a determinative factor in custody dispositions involving illegitimates.

Despite these notable advances, the enlightened attitude and approach employed in custody dispositions for legitimate children has not been attained for ilegitimates. A mandatory preference for one parent, the mother, persists, and the Best Interests Doctrine, which looks solely to the welfare of the child, must compete with a prima facie right to custody in the mother. Generally, courts will not even admit the possibility of an inconsistency between these two principles and instead rely on the axiom that the child’s welfare and the mother’s rights to custody are synonymous. Unless demonstrably unsuited to care for her child, the mother is awarded custody.

Although a majority of states do permit a grant of custody to the putative father, his right to custody is only secondary; it is dependent upon the mother’s unavailability or unsuitability.  Procedurally, when both unwed parents seek custody, the father’s qualifications, even when apparently superior, are not entitled to judicial consideration until the mother has been adjudicated unfit. In other states the putative father does not have even a secondary right to custody of his unlegitimated out-of-wedlock child.  Thus, despite courtroom rhetoric expressing solicitude for the illegitimate’s welfare, the summary procedures involved in the adjudication of the putative father’s right to custody under both these rules lead one to question whether the law has yet abandoned the attitudes which engendered the filius populi rule. The unfairness to the illegitimate child has been noted by a number of courts. The United States Supreme Court in Stanley v. Illinois considered the unfairness to the unwed father resulting from the minority rule. This Note will point out the inequities which exist for the putative father where the majority rule prevails, apply the Stanley rationale to that rule and its procedures as exemplified by New York law, and suggest needed reform.

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