New York’s Unconstitutional Treatment of Unwed Fathers of Children in Foster Care



Over the last 25 years, the United States has pursued a policy of terminating parent-child relationships at an unprecedented rate. Given the fundamental constitutional interests at stake and the child welfare system’s shameful history of destroying low-income families of color, any mechanism that contributes to the break-up of families should be carefully scrutinized. This Article challenges one such mechanism, arguing that New York’s practice of making unmarried men’s parental rights to their children in foster care contingent on paying child support undermines the goals of child welfare policy and is unconstitutional. The practice of requiring monetary payments from unmarried fathers, but not from mothers or married fathers, is based on outdated stereotypes and is, as Justice Ruth Bader Ginsburg called an analogous instance of sex discrimination, “stunningly anachronistic.”

The blatant sex discrimination of the rule on unwed fathers of children in foster care has been masked by the fact that it employs a rubric developed in a different context. The Supreme Court has addressed fathers’ rights to prevent the adoption of their children only in the private adoption context, where the constitutional analysis has allowed sex-based discrimination when mothers and fathers’ interests are at odds and they are differently situated. This Article explains how the constitutional interests at stake are very different in the public adoption context, in which it is the state, rather than another parent, that seeks to re-order family relationships.

New York has taken advantage of a statutory provision that allows the state to put foster children up for adoption over the objection of their unmarried fathers—without even a hearing on the father’s fitness as a parent or the father’s relationship with his child—solely because he failed to pay child support. This rule is an exception to the general requirement that children can only be adopted if their parents consent or if the parents’ rights are terminated based on clear and convincing evidence. It is important to understand and end this violation of the Equal Protection Clause, and this analysis illustrates the broader need to consider the different interests at play when importing private family law principles, particularly constitutional analysis, into public family law.

Suggested Reading

This is an excerpt from Kenji Yoshino’s new book, Speak Now: Marriage Equality on Trial. In his book, Professor Yoshino explores the Hollingsworth v. Perry trial, which he calls “one of the most powerful civil rights trials in American history.” Professor Yoshino