Parental Rights - Shoecraft v. Catholic Social Services Bureau: For

Transcription

PARENTAL RIGHTS
SHOECRAFT v. CATHOLIC SOCIAL SERVICES BUREAU: FOR AN
UNWED FATHER, FIVE DAYS IS FOREVER
INTRODUCTION
Historically, whether in fiefdom or on the plantation, one of
the most cherished privileges of males of the upper socioeconomic classes has been the time honored pastime of
"wenching." The participants in this sport have traditionally
been protected by both the common law and statute law. In
essence, the law has traditionally denigrated the mother of
an illegitimate child; branded and banished the child from
any claim or birth rights from and through the father including name and fortune. The pattern is woven throughout
recorded history from ancient Rome to Kent to South Africa
to Natchez.'
It is ironic that the common law and statutes that were originally
designed to protect a man from his lover and their non-marital child 2
have now evolved to prevent or hinder the man in forming and maintaining a desired parental relationship with his child.3 The traditional notions about men and women that are the wellspring of this
irony are still pervasive in our law and are operative in the recent
Nebraska Supreme Court decision in Shoecraft v. Catholic Social
1.
In re Wright, 52 Ohio Misc. 4, -,
367 N.E.2d 931, 933 (1977), quoted in G.
DOUTHWAITE, UNMARRIED COUPLES AND THE LAw
111-12 (1979).
2. The term "non-marital child" is used throughout this Note because it is less
offensive than alternative phrases such as "bastard" and "illegitimate child." See H.
KRAUSE, ILLEGITIMACY: LAW AND SOCIAL POLICY 22 (1971). The chosen term is less
bulky than the phrase "child born out of wedlock" used in section 13-115 of the Nebraska Revised Statutes. Section 13-115 provides:
In any local law, ordinance or resolution, or in any public or judicial proceeding, or in any process, notice, order, decree, judgment, record or other public
document or paper, the terms bastard or illegitimate child shall not be used
but the term child born out of wedlock shall be used in substitution therefor
and with the same force and effect.
NEB. REV. STAT. § 13-115 (Reissue 1984) (empahsis added). Section 13-101 of the Nebraska Revised Statutes defines "child born out of wedlock" as a child "whose parents
were not married to each other at the time of its birth; [however], no child shall be
considered as born out of wedlock if its parents were married at the time of its conception but divorced at the time of its birth." Id. § 13-101 (Reissue 1983). For the purpose
of this Note, the same definition will apply to the term "non-marital child."
In regard to the "battle of words," one authority has cautioned that "overconcern
with nomenclature carries with it the danger that a legislature, having outlawed an
unpleasant word, may come to think that it has solved an unpleasant problem." H.
KRAUSE, supra, at 24.
3. In re Wright, 52 Ohio Misc. at -, 367 N.E.2d at 934.
CREIGHTON LAW REVIEW
[Vol. 20
Services Bureau.4
Under the common law a non-marital child was filius nullius,
no one's child, not the mother's, not the father's. 5 Neither parent
had a right to custody or a duty to support the child. 6 The doctrine of
filius populi provided that the child's custody was in the hands of the
parish.7 Adoption proceedings and paternity actions were unknown
to the common law.8 In order to relieve the public of its duty to support these children, the Poor Law Act of 1576 authorized the parish
to impose a charge upon each child's parents. 9 Poor Law officials
routinely placed the child with the mother.10
With this common law background, most American jurisdictions
have indicated until recently that the mother has a superior legal
right to the non-marital child unless otherwise provided by statute.11
The need for maternal care has been stressed as one of the primary
justifications for this general rule.12 On the other hand, an equally
or even more important reason, for the rule, as suggested by the
opening quotation to this Note, has been the historical presumption
that men were not interested in and did not want to provide care,
4.
222 Neb. 574, 577-80, 385 N.W.2d 448, 451-52 (1986).
5.
H. KRAUSE, supra note 2, at 3.
[F]iliusnullius expresses no mere technical uncertainty as to the fatherhood
of the bastard, but rather the moral antipathy, inculcated by the Church, to
the irregular intercourse of which he was the fruit. The unfortunate, and
often tragic, status of the illegitimate child in the great majority of modern
Western family laws is an outcome of the Christian conception of the monogamous marriage. The church's views were not in all cases inflexible, however.
For example, Pope Alexander VI (Rodrigo Borgia) treated his own bastards so
well that he was "accused of a plot to make the papacy 'hereditary' in the
House of Borgia.
Id. at 2 n.3 (citations omitted).
6.
K. DAVIDSON, R. GINSBURG & H. KAY, SEX-BASED DISCRIMINATION 310 (1974)
[hereinafter K. DAVIDSON].
7. State ex reL. Lewis v. Lutheran Social Serv., 74 Wis. 2d 420, -, 178 N.W.2d 56,
57 (1970), vacated and remanded sub nom. Rothstein v. Lutheran Social Serv., 405 U.S.
1051 (1972).
8. In re Ritchie, 155 Neb. 824, 827-28, 53 N.W.2d 753, 755 (1952) (citing Ferguson
v. Herr, 64 Neb. 649, 661, 94 N.W. 542, 543 (1903)). See H. KRAUSE, supra note 2, at 106.
Because paternity actions and adoption proceedings were unknown at common law,
legislative lawmaking was necesary to establish both. In Nebraska, the statutes providing for the adoption of children are sections 43-101 through 43-146 of the Nebraska Revised Statutes. NEB. REV. STAT. §§ 43-101 to -146 (Reissue 1984 & Cum. Supp. 1986).
The statutes providing for the establishment of paternity and child support are sections 13-101 through 13-116 of the Nebraska Revised Statutes, as amended. Id. § 431406, -1411, -1412 (Cum. Supp. 1986); id. §§ 13-101 to -105, -107 to -110, -113 to -116 (Reissue 1983).
9. K. DAVIDSON, supra note 6, at 310.
10. Id.
11. Id. See also State ex reL Lewis, 74 Wis. 2d at -, 178 N.W.2d at 57 (stating that
mothers have superior rights).
12. Lewis, 74 Wis. 2d at -, 178 N.W.2d at 57.
1987]
PARENTAL RIGHTS
13
custody, and love to their non-marital children.
During the past fourteen years the presumption that unwed fathers are uncaring and unfit parents has been under attack.1 4 In
1972, the United States Supreme Court announced that a state legislature could not presume that unwed fathers in general are unsuitable and neglectful parents.' 5 Seven years later, the Supreme Court
expressly rejected the traditional notion that maternal and paternal
roles are invariably different in importance.' 6 During this period,
custody proceedings and adoption statutes succumbed to the superior
constitutional rights of individual fathers and to the clashing forces
of change that enveloped stereotypical notions about the relative ca7
pabilities of men and women to love and nurture their children.'
This Note discusses the legal battle in Shoecraft, a case in which
a new father joined the forces of change by demanding custody of his
son and challenging the constitutionality of Nebraska's adoption statute.' 8 This Note then traces the United States Supreme Court decisions that have recognized and articulated an unwed father's
constitutionally protected right to form and maintain a relationship
with his non-marital child.' 9 Next, the Note examines the historical
development and operation of the Nebraska adoption consent statute's key feature, a five-day limitation on an unwed father's paternity
rights.20 Finally, this Note analyzes the Nebraska Supreme Court's
decision in Shoecraft in light of prior United States Supreme Court
13. Stanley v. Illinois, 405 U.S. 645, 653 n.5, 655 nn. 6 & 7, 656 n.8 (1972).
14. See infra note 17 and accompanying text. Fourteen years have elapsed since
Stanley, the United States Supreme Court's first decision that recognized that an unwed father has a constitutionally protected interest in the "companionship, care, custody, and managment" of his non-marital children. Stanley, 405 U.S. at 651.
15. Stanley, 405 U.S. at 656-57. The term "unwed father," as used in this Note,
simply means that the man did not have a marital relationship with the mother of
their biological child when the child was conceived or when the child was born. The
term "unwed father" does not mean that the man is unmarried, for he could be married to another woman and still be considered an "unwed father" as that term is used
throughout this Note. The term "putative father" could be used as a substitute for
"unwed father," but "putative father" does not convey or illustrate the importance of
the lack of a marital relationship as effectively as the term "unwed father"; hence, the
term "putative father" is rarely used in this Note.
16. Caban v. Mohammed, 441 U.S. 380, 389 (1979).
17. See generally id. at 394 (holding that an adoption statute violated the equal
protection clause); Vanderlaan v. Vanderlaan, 405 U.S. 1051, 1051 (1972) (vacating a
custody proceeding in light of Stanley); Rothstein v. Lutheran Social Serv., 405 U.S.
1051, 1051 (1972), vacating and remanding sub nom. State ex rel. Lewis v. Lutheran
Social Serv., 74 Wis. 2d 420, 178 N.W.2d 56 (1970) (ordering a reexamination of an adoption statute in light of Stanley); Stanley, 405 U.S. at 658 (holding that a custody proceeding violated the equal protection clause).
18. Shoecraft, 222 Neb. at 576, 385 N.W.2d at 450. See supra note 21-62 and accompanying text.
19. See infra notes 63-230 and accompanying text.
20. See infra notes 231-461 and accompanying text.
[Vol. 20
decisions, concluding that the outcome should have been different
and that it is now time for the legislature to reconsider the five-day
statute of limitations.
FACTS AND HOLDING
Sheri Davis and Jerry Shoecraft, unwed lovers, were students at
the University of Nebraska 21 when Davis conceived their son, Justin
Michael, who was born February 19, 1985.22 Davis told Shoecraft of
the pregnancy as soon as it was medically verified in June, 1984.23
Davis then contacted Catholic Social Services, which arranged for her
to live with a family in Grand Island, Nebraska from September until
the baby's delivery.2 4 During this time, Davis and Shoecraft had numerous conversations concerning the expected birth and future of
their child.25 During these conversations, Davis told Shoecraft that
she was considering relinquishing the infant for adoption. 26 With relinquishment in mind, Davis sent to Shoecraft health forms and a
background questionnaire, which Shoecraft declined to complete and
return.27 Both prospective parents believed that "Davis was in control" 28 and that Shoecraft did not have any rights regarding the pro21. Id.
22. Id. at 575, 385 N.W.2d at 450.
23. Id. at 576, 385 N.W.2d at 450.
24. Shoecraft v. Catholic Social Serv. Bureau, No. 391-287, slip op. at T 3 (Lancaster Cty. D. Ct. June 14, 1985) (declaring the five-day limitation in sections 43-104.02
through 43-104.06 of the Nebraska Revised Statutes unconstitutional); Brief for Appellant at 7, Shoecraft v. Catholic Social Serv. Bureau, 222 Neb. 574, 385 N.W.2d 448
(1986).
25. Shoecraft, 222 Neb. at 576, 385 N.W.2d at 450.
26. Id. Shoecraft contended that Davis later told him that she would not allow
the adoption of their child if he was going to object. Brief for Appellee and Cross-Appellant at 4, Shoecraft v. Catholic Social Serv. Bureau, 222 Neb. 574, 385 N.W.2d 448
(1986).
27. Shoecrmft, 222 Neb. at 576, 385 N.W.2d at 450.
28. Brief for Appellee and Cross-Appellant at 5, Shoecraft. According to
Shoecraft, both he and Davis believed that Shoecraft could not keep their son without
her consent and that Shoecraft's signature was not required to place their child for
adoption. Id. Because several courts have ruled that husbands and lovers have no authority to prevent abortion and that a woman alone makes the choice between abortion and childbirth, it is easy to understand why Shoecraft would believe that he had
no right to assert during Davis' pregnancy. See, e.g., Planned Parenthood v. Danforth,
428 U.S. 52, 71 (1976) (stating that a woman unilaterally makes the decision between
childbirth and abortion, as she physically bears the child); Jones v. Smith, 278 So. 2d
339, 342 (Fla. Dist. Ct. App. 1973) (recognizing a state termination of a pregnancy statute's requirement of only the woman's consent). Concluding that men have no voice
in the choice between abortion and childbirth, commentators have written:
In Jones v. Smith, a Florida court held that a putative father has no right to
enjoin the natural mother from terminating the pregnancy. The court reiterated the Supreme Court's holding that the abortion decision is solely between
the mother and her physicians. The court further stated: "The right of privacy of the mother with respect to a termination of pregnancy as delineated
PARENTAL RIGHTS
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29
posed adoption.
On the Tuesday morning of Justin Michael's birth, Davis telephoned Shoecraft and told him that she had given birth to their
son. 30 On Thursday, Shoecraft arrive in Grand Island to visit Davis
and Justin Michael. 31 During this visit, Shoecraft informed Davis
33
that he wanted to have custody of his son,32 even if she did not. In
Lincoln on the next day, Friday, February 22, Shoecraft contacted
several social service agencies in an ultimately unsuccessful effort to
determine whether he had any rights as Justin Michael's father, and,
if so, how to assert those rights. 34 On the same day, Catholic Social
Services placed Justin Michael in a foster home. 35 On Friday at five
o'clock p.m., the doors to the governmental36and social agency offices
swung shut for a regular two-day weekend.
When the offices reopened the following week, Shoecraft resumed contacting them, finally discovering that he was required by
law to contact the State Department of Social Services at the State
Office Building in Lincoln. 3 7 On Thursday, February 28, 1985, nine
days after Justin Michael's birth, Shoecraft went to that office and
signed a notice of intent to claim paternity.3 8 Unfortunately for
Shoecraft, he was four days too late. 39 On the preceding Sunday
by the decisions of the United States Supreme Court is a right separate and
apart from any act of conception." Federal courts have also held that the consent of the putative father is not required since the right to privacy is an individual right which should not be subjected to the consent of others.
Most recently the U.S. Supreme Court has struck down a Missouri statute
requring prior written consent of the spouse of a woman seeking an abortion
.... These decisions emphasize that the father no longer has a voice in the
decision to bear the child ....
Levy & Duncan, The Impact of Roe v. Wade on PaternalSupport Statutes: A ConstitutionalAnaysis, 10 FAM. L. Q. 179, 185-87 (1976) (quoting Jones v. Smith, 278 So. 2d 339,
343 (Fla. Dist. Ct. App. 1973), cert. denied, 415 U.S. 958 (1974)) (referring to Planned
Parenthood v. Danforth, 428 U.S. 52, 71-72 (1976)).
29. Shoecraft, 222 Neb. at 576, 385 N.W.2d at 450-51.
30. Id. at 576, 385 N.W.2d at 450.
31. Brief for Appellee and Cross-Appellant at 5, Shoecraft.
32. Brief for Appellant at 3, Shoecraft.
34. Shoecraft v. Catholic Social Serv. Bureau, No. 391-287, 15 (Lancaster Cty. D.
Ct. June 14, 1985) (order raising constitutionality of the Nebraska Revised Statutes
which relate to claims of paternity).
35. Id., slip op. at 1.
36. Id., slip op. at 15. Shoecraft's brief indicated: "Shoecraft had an obligation to
an AAU Basketball team to travel to Texas on the weekend, which he did, and returned on Sunday after the child was born, and [was notlout of the City of Lincoln for
any period of time when government offices were open." Brief for Appellee and
Cross-Appellant at 6, Shoecraft.
39. Id. at 583, 385 N.W.2d at 454 (Krivosha, C.J., dissenting).
[Vol. 20
night, unbeknown to Shoecraft, a five-day statute of limitations on
40
his rights of fatherhood had run.
On the next Tuesday, March 5, 1985, Sheri Davis signed a paper
relinquishing Justin Michael to Catholic Social Services. 41 Catholic
Social Services executed an acceptance of relinquishment on the
same day.4 2 These legal steps were taken fourteen days after Justin
Michael's birth and five days after Shoecraft had filed his intent to
claim paternity. In the meantime, Justin Michael remained in the
custody of his foster parents, John and Mary Doe, who desired to
43
adopt him and, like Shoecraft, to love him.
Determined to get Justin Michael back, Shoecraft immediately
hired a lawyer and, on March 21, 1985, filed a petition in the District
Court of Lancaster County. 44 Shoecraft's petition stated that he had
acknowledged paternity 45 and had demanded custody, which Catholic
Social Services had refused. 46 Shoecraft sought a writ of habeas
corpus 4 7 to secure custody and simultaneously to challenge the con40. Id. at 580, 385 N.W.2d at 452. Sections 43-104.02 through 43-104.06 of the Nebraska Revised Statutes provide that if an unwed father fails to file a notice of intent
to claim paternity within five days of birth, then his rights shall not be recognized
thereafter in any court. NEB. REV. STAT. § 43-104.06 (Cum. Supp. 1986); id. §§ 43-104.02
to .05 (Reissue 1984). Regarding termination of parental rights, Justice Blackmun
wrote:
[T]he State's aim is not simply to influence the parent-child relationship but
to extinguish it. A termination of parental rights is both total and irrevocable.... [I]t leaves the parent with no right to visit or communicate with the
child, to participate in, or even to know about, any important decision affecting the child's religious, educational, emotional, or physical development. It is
hardly surprising that this forced dissolution of the parent-child relationship
has been recognized as a punitive sanction by courts, Congress, and commentators ....
[T]ermination of parental rights by a State is a "unique kind of
deprivation."
Lassiter v. Department of Social Serv., 452 U.S. 18, 39-40 (1981) (Blackmun, J., dissenting) (holding that refusal to appoint counsel for an indigent parent in a proceeding to
terminate parental rights did not violate the due process clause).
41. Shoecraft, No. 391-287, at 1.
42. Id. Shoecraft maintained that the Catholic Social Services Bureau did not
even ask for his name. Brief for Appellee and Cross-Appellant at 7, Shoecraft.
44. Petition at 1, Shoecraft v. Catholic Social Serv. Bureau, No. 391-287 (Lancaster
Cty. D. Ct. June 14, 1985).
45. Id. According to his petition, Shoecraft acknowledged paternity on forms provided for him by the Nebraska Department of Social Services. Id. Acknowledgment is
a "rough equivalent of a consensual settlement of a paternity action." H. KRAUSE,
supra note 2, at 20 n.53 (referring to several state paternity statutes, including section
13.106 of the Nebraska Revised Statutes, currently codified at section 43-1406).
46. Petition at 2, Shoecraft.
47. Shoecraft, 222 Neb. at 576, 385 N.W.2d at 450. The Nebraska Supreme Court
has held: "Habeas corpus is an appropriate action to test the legality of custody and
the best interest of a minor, including the rights of fathers of children born out of wedlock." Id. (citing Christopherson v. Christopherson, 177 Neb. 414, 417, 129 N.W.2d 113,
115 (1964); In re Schwartzkopf, 149 Neb. 460, 467, 31 N.W.2d 294, 298 (1948)).
1987]
PARENTAL RIGHTS
stitutionality of Nebraska's adoption consent statute.4 8 The district
court found that the five-day limitation for filing a notice of intent to
claim paternity under sections 43-104.02 through 43-104.06 was unconstitutional.49 The court held that the five-day limitation violated the
due process 5 0 and equal protection5 l clauses of the fourteenth amendment to the United States Constitution, and article I, section 3 of the
52
Nebraska Constitution.
As a result, the district court ordered that Shoecraft's notice of
intent to claim paternity should be treated as though it was "timely
filed." 53 The court did not decide whether Shoecraft should have
48. Petition at 2-3, Shoecraft.
49. Shoecroft, No. 391-287, at 15, 19.
50. Id., slip op. at 15. U.S. CONST. amend. XIV, § 1 provides: "No State shall...
deprive any person of life, liberty, or property, without due process of law .... " The
United States Supreme Court has held: "[D]ue process requires, at a minimum, that
absent a counterveiling state interest of overriding significance, persons forced to settle
their claims of right and duty through the judicial process must be given a meaningful
opportunity to be heard." Little v. Streater, 452 U.S. 1, 5-6 (1981) (emphasis added)
(quoting Boddie v. Connecticut, 401 U.S. 371, 377 (1971) (holding that refusal to provide
a blood test to an indigent unwed father in a paternity action violated the due process
clause). In assessing what process is due in a particular case, the Supreme Court has
stated that "three elements ... [must] be evaluated in determining what process is constitutionally due: the private interest at stake; the risk that the procedures used will
lead to erroneous results and the probable value of suggested procedural safeguard;
and the government interest affected." Id. at 13 (citing Matthews v. Eldridge, 424 U.S
319, 335 (1976)).
51. Shoecrqft, No. 391-287, at
19. U.S. CONST. amend. XIV, § 1 provides: "No
State shall . . . deny any person within its jurisdiction the equal protection of the
laws." In commenting on the United States Supreme Court's interpretation of the
equal protection clause, constitutional law authorities stated:
The equal protection clause guarantees that similar individuals will be dealt
with in a similar manner by the government. It does not reject the government's ability to classify persons or "draw lines" in the creation and application of laws, but it does guarantee that those classifications will not be based
upon impermissible criteria or arbitrarily used to burden a group of
individuals.
J. NOWAK, R. ROTUNDA & J. YOUNG, CONSTITUTIONAL LAW 586 (2d ed. 1983), cited
with approval in State v. Michalski, 221 Neb. 380, 384, 377 N.W.2d 510, 514 (1985)
[hereinafter J. NOWAK]. Summarizing the United States Supreme Court's treatment of
statutes that "draw lines" on the basis of gender, Justice Stevens has written:
Gender, like race, is a highly visible and immutable characteristic that has historically been the touch stone for pervasive but often subtle discrimination. ......
"[G]ender-based statutory classifications deserve careful
constitutional examination because they may reflect or operate to perpetuate
mythical or stereotyped assumptions about the proper roles and the relative
capabilities of men and women that are unrelated to any inherent differences
between the sexes. Sex-based classifications are in many settings invidious because they relegate a person to the place set aside for the group on the basis of
an attribute that the person cannot change.
Caban v. Mohammed, 441 U.S. 380, 398 (1979) (Stevens, J., dissenting) (citations
omitted).
52. Shoecraft, No. 391-287, at 15. NEB. CONST. art. I, § 3 provides: "No person
shall be deprived of life, liberty, or property, without due process of law."
53. Shoecraft, No. 391-287, slip op. at 1.
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custody of Justin Michael because the court believed that the county
54
court had proper jurisdiction over that issue.
Both Catholic Social Services and Shoecraft filed appeals in the
Nebraska Supreme Court.5 5 As cross-appellant, Shoecraft contended
56
that the district court erred in not ruling on the custody issue.
Catholic Social Services claimed that the district court erred in holding that the five-day limitation for filing a notice of intent to claim
paternity was unconstitutional.5 7 Catholic Social Services further
contended that the setting of a five-day limitation was "a valid and
constitutional exercise of legislative authority."58
On appeal, the Nebraska Supreme Court reversed the district
59
court's decision and remanded the case with directions to dismiss.
The Nebraska Supreme Court held that the five-day statute of limitations was constitutional as applied to Jerry Shoecraft. 60 Only Chief
Justice Norman Krivosha dissented from the court's holding.6 1 He
wrote that the five-day limitation denied Jerry Shoecraft due process
62
and equal protection of the law.
BACKGROUND
STANLEY V. ILLINOIS: THE PRESUMPTION FAILED
The United States Supreme Court's decision in Stanley v. Illinois 63 heralded a new beginning for the constitutional rights of un65
wed fathers. 6 4 Following a long line of personal liberty cases
54.
55.
Id., slip op. at
2.
Brief for Appellant at 4, Shoecraft; Brief for Appellee and Cross-Appellant at
2, Shoecraft.
56.
57.
58.
59.
60.
61.
62.
Brief for Appellee and Cross-Appellant at 2, Shoecraft.
Brief for Appellant at 4, Shoecraft.
Id.
Shoecraft, 222 Neb. at 580, 385 N.W.2d at 452.
Id.
Id. at 580, N.W.2d at 453.
Id.
63. 405 U.S. 645 (1972).
64. Id. at 649.
65. Personal liberty under the fourteenth amendment covers a wide span. Justice
McReynolds, writing for the majority in Meyer v. Nebraska, wrote:
Without doubt, [liberty] denotes not merely freedom from bodily restraint but
also the right of the individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to marry, establish a home
and bring up children, to worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long recognized at common
law as essential to the orderly pursuit of happiness by free men.
Meyer v. Nebraska, 262 U.S. 390, 399 (1923). See also Griswold v. Connecticut, 381 U.S.
479, 485-86 (1965) (recognizing the right to home and marital privacy free from government intrusion); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (recognizing procreation as one of a person's basic civil rights); Pierce v. Society of Sisters, 268 U.S. 510,
PARENTAL RIGHTS
1987]
having their origin in Meyer v. Nebraska,66 the Stanley court recognized for the first time an unwed father's liberty interest in his children. 67 The Court also announced that an unwed father's liberty
68
interest in his children was protected by the due process clause and
70
69
Peter
the equal protection clause of the fourteenth amendment.
manageand
custody,
Stanley's interest in the "companionship, care,
ment"71 of his children was identified as "cognizable and
'72
substantial.
Although Joan and Peter Stanley never legally married, they
73
had lived together for eighteen years and raised three children.
When Joan died, the State of Illinois instituted a dependency proceeding, declared the children wards of the state, removed them from
Stanley's custody, and placed them in another home. 74 Stanley was
given neither the opportunity to show that he was a fit father nor the
Illinois
opportunity to object at the dependency hearing. 75 Under
76
law, Stanley was treated as "a stranger to his children.
In rejecting the presumptions of the Illinois statutory scheme,
the Court held that under the due process clause, Peter Stanley was
constitutionally entitled to a hearing on his fitness as a parent before
the state could remove his children from his custody.77 If, after a
hearing, Stanley was shown to be a fit father, then "the state's interest in caring for his children [would have been] de minimus.' 7 8 The
534-35 (1925) (recognizing the liberty of parents and guardians to direct the upbringing
and education of their children).
66. 262 U.S. 390 (1923).
67. Stanley, 405 U.S. at 652.
68. Id. at 658. See supra note 50.
69. Stanley, 405 U.S. at 658. See supra note 51.
70. Stanley, 405 U.S. at 658.
71.
Id. at 651.
72. Id. at 652. With regard to parental interest in children, Justice Blackmun
wrote:
This interest occupies a unique place in our legal culture, given the centrality
of family life as the focus for personal meaning and responsibility. "[Flar
more precious... than property rights," parental rights have been deemed to
be among those "essential to the orderly pursuit of happiness by free men"
Accordingly, although the Constitution is verbally silent on the specific
....
subject of families, freedom of personal choice in matters of family life long
has been viewed as a fundamental liberty interest worthy of protection under
the Fourteenth Amendment.
Lassiter v. Department of Social Serv., 452 U.S. 18, 38 (1981) (Blackmun, J., dissenting)
(quoting May v. Anderson, 345 U.S. 528, 533 (1953)).
73. Stanley, 405 U.S. at 646.
74. Id.
75. Id. at 648.
76.
Id.
As used in this Note, the term "stranger" means a person not related to
the child by blood, a substantial personal relationship, or marriage to the child's
mother. Stepfathers, therefore, are not "strangers" as that term is used here.
77. Id. at 658.
78. Id. at 657-58.
[Vol. 20
Court declared that the Illinois legislature could not presume, consistent with due process requirements, that all unwed fathers were unsuitable and neglectful parents.7 9 According to the Court, a statute
that denied an unwed father a hearing on parental fitness accorded
to all other Illinois parents, including unwed mothers, violated the
80
equal protection clause.
The Court recognized that it is always "cheaper and easier" 8' to
presume that an unwed father is an unfit parent than it is to provide
him an individualized hearing on fitness.8 2 However, the Court
would not allow procedures promoting administrative convenience
and incremental cost savings to run "roughshod" 8 3 over Stanley's interest.8 4 Writing for the majority, Justice White stated:
The establishment of prompt efficacious procedures to
achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the
Constitution requires higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in
general, and the Due Process Clause in particular, that they
were designed to protect the fragile values of a vulnerable
citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government offi85
cials no less, and perhaps more, than mediocre ones.
From the Court's perspective, the state's cost of providing unwed
fathers an opportunity to be heard on their individual fitness as parents appeared to be minimal. 86 Those fathers who were not interested in their children would not request hearings.8 7 The Court
noted that "[e]xtending opportunity for hearing to unwed fathers
who desire and claim competence to care for their children creates no
79. Id. at 654.
80. Id. at 658. Under the Illinois statutory scheme, all parents except unwed fathers were entitled to a hearing on fitness. For example, Illinois would provide hearings to unwed mothers, married fathers and mothers, divorced fathers and mothers,
separated fathers and mothers, and widowed fathers and mothers. Id. Stanley was
only marginally an equal protection case because virtually all of Justice White's opinion was devoted to procedural due process considerations. 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, 25 (1972). Since the due process issue had not been argued in the state courts, it was not available as a ground for
reversing the Illinois Supreme Court. Id. In Stanley, the primary theme was that
"presumptions of unfitness or disqualification are disfavored under the Due Process
Clause." K. DAVIDSON, supra note 6, at 59.
81. Stanley, 405 U.S. at 656.
82. Id. at 656-57.
83. Id. at 657.
84. Id. at 656-57.
85. Id. at 656.
86. Id. at 657 n.9.
87. Id.
19871
PARENTAL RIGHTS
constitutional or procedural obstacle to foreclosing those unwed fathers who are not so inclined."8 8 Providing notice to unwed fathers
could be accomplished under state procedures that provide for "personal service, notice by certified mail, or for notice by publication
when personal or certified mail service cannot be had or when notice
is directed to unknown respondents under the style of 'All whom it
may Concern.' "89
IMPACT OF STANLEY
Immediately after the Stanley decision, the Supreme Court vacated state court judgments in two other cases involving the rights of
unwed fathers. 90 In Vanderlaan v. Vanderlaan,91 the Supreme
Court remanded a custody case to an Illinois court for reconsideration in light of the Stanley decision. 92 The Illinois court had denied
custody of a non-marital child to an unwed father because the child's
natural mother was alive and also wanted custody.9 3 The Illinois
court had held that under state law an unwed father had no right to
the society of his non-marital child.94 On remand, the Illinois court
decided that unwed fathers would no longer be considered automati95
cally ineligible for custody.
Although the factual situations in both Stanley and Vanderlaan
involved custody proceedings, the impact of the Stanley decision was
immediately felt in the areas of adoption and the corresponding
96
rights of unwed fathers to prevent the adoption of their children.
On the same day that the Supreme Court vacated and remanded
Vanderlaan, it also vacated and remanded an adoption case, Rothstein v. Lutheran Social Services.97 The United States Supreme
Court ordered that the adoption case be reconsidered "in light of
Stanley ... with due consideration for... the fact that the child has
88. Id.
89. Id. See generally Barron, Notice to the Unwed Fatherand Termination of ParentalRights: Implementing Stanley v. Illinois, 9 FAM L. Q. 527, 527 (1975) (discussing
the problem of notifying a father whose identity and whereabouts are unknown).
90. Vanderlaan v. Vanderlaan, 405 U.S. 1051, 1051 (1972), vacating and remanding
126 Ill. App. 2d 410, 262 N.E.2d 717 (1970); Rothstein v. Lutheran Social Servs., 405 U.S.
1051, 1051 (1972), vacating and remanding sub nom. State ex rel. Lewis v. Lutheran
Social Serv., 74 Wis. 2d 420, 178 N.W.2d 56 (1970).
91. 405 U.S. 1051 (1972) vacating and remanding 126 Ill. App. 2d 410, 262 N.E.2d
717 (1970).
92. Id.
93. Vanderlaan v. Vanderlaan, 126 Ill. App. 2d 410, -, 262 N.E.2d 717, 719 (1970),
vacated and remanded, 405 U.S. 1051 (1972).
94. Id. at -, 262 N.E.2d at 720.
95. Vanderlaan v. Vanderlaan, Ill. App. 3d 260, 262, 292 N.E.2d 145, 146 (1972).
96. See infra note 116 and accompanying text.
97. 405 U.S. 1051 (1972), vacating and remanding sub nom. State ex rel. Lewis v.
Lutheran Social Serv., 74 Wis. 2d 420, 178 N.W.2d 56 (1970).
[Vol. 20
apparently lived with the adoptive family for the intervening period
of time."98
In Rothstein, an unwed father, Jerry D. Rothstein, was not given
notice or a hearing prior to the adoption of his son by strangers. 99
Eight days after the birth of their son, Karen Ann Lewis consented
to allow a court in LaCrosse County, Wisconsin to terminate her parental rights and to place the infant for adoption.' 0 0 On August 14,
1968, when he was just fifteen days old, Lewis' and Rothstein's son
was placed in the home of a couple desiring to adopt him. 1 1 Rothstein was not given notice of the hearing held by the LaCrosse
County Court.10 2 Further, he had not consented to the termination
of his parental rights.10 3 On December 5, 1968, four months later,
Rothstein unsuccessfully petitioned for a hearing on his right to the
care and custody of his son. 10 4 Finally, Rothstein petitioned the Wisconsin Supreme Court for a writ of habeas corpus to determine who
had the right to legal custody of his son. 10 5
Rothstein's petition pressed the Wisconsin Supreme Court to answer three questions: "(1) [w]hether the father of a child born out of
wedlock has any parental rights; and, if so, (2) whether such rights
under present statutory law can be terminated upon the consent of
the child's mother;"'10 6 and (3) whether the equal protection clause
was violated by statutes that required married parents and unwed
mothers, but not unwed fathers, to give their consent before their parental rights could be terminated. 10 7 After a careful review of the
adoption statutes and the case law, a divided Wisconsin court held:
(1) [A]ny rights enjoyed by a putative father under common
law have been changed or modified by [statute]; (2) that the
putative father of a child born out of wedlock does not have
any parental rights; and (3) that the failure of the Wisconsin
statutes to grant parental rights or notice of hearing to a putative father prior to termination of parental rights does not
98. Id. at 1051.
99. State ex re. Lewis v. Lutheran Social Serv., 74 Wis. 2d 420, -, 178 N.W.2d 56,
57 (1970), vacated and remandedsub nom.Rothstein v. Lutheran Social Serv., 405 U.S.
1051 (1972). See supra note 76 and accompanying text.
101. Id.
102. Id.
103. Id. The Wisconsin adoption statute required that "parents" consent to the termination of their rights, but the Wisconsin Supreme Court had previously held that
unwed fathers were not "parents" within the meaning of the statute. In re Aronson,
269 Wis. 460, -, 69 N.W.2d 470, 475 (1955).
105. Id. at -, 178 N.W.2d at 56.
106. Id. at -, 178 N.W.2d at 57.
107. Id. at -, 178 N.W.2d at 61-62.
PARENTAL RIGHTS
1987]
constitute a violation of the state or federal constitution. 0 8
By the time Rothstein's son was four years old, Rothstein's appeal had reached the United States Supreme Court.i0 9 Upon consideration of his case, the Court vacated the Wisconsin court's opinion
and remanded the case "for further consideration in light of Stanley."1n On remand, the Wisconsin Supreme Court vacated the adoption and ordered a rehearing in the county court on the termination
of Rothstein's parental rights.'' The Wisconsin court also ordered
notice and a hearing on his fitness as a parent.1' 2 The Wisconsin
Supreme Court noted: "[w]hat the mandate of the United States
Supreme Court can only mean in view of Wisconsin law is that this
court must determine whether the petitioner is entitled to custody
which would have been his as a natural father unless his parental
rights had been terminated. 1" 3 The court held that the Wisconsin
statute was unconstitutional because it neither required Rothstein's
consent to adoption nor afforded him notice of the termination of his
natural parental rights.1' 4 The court further held that unwed fathers
should receive the same notice for termination of parental rights as
was provided married parents and unwed mothers.' 1 5
MARKING THE BOUNDARIES OF STANLEY
As a result of the 1972 decisions in Stanley, Vanderlaan, and
Rothstein, "a signal went out to the states, the bar, the courts, and
the social service agencies that the termination and adoption process
would be unable to proceed, as it mainly had in the past, with care' 6
free indifference to the unwed father.""
From 1978 to 1983, the
United States Supreme Court began marking the boundaries of Stanley in three additional adoption cases: Quilloin v. Walcott," 7 Caban
v. Mohammed,"i 8 and Lehr v. Robertson." 9
108. Id. at -, 178 N.W.2d at 63.
109. Rothstein, 405 U.S at 1051.
110. Id.
111. State ex reL Lewis v. Lutheran Social Serv., 59 Wis. 2d 1,
829 (1973).
112. Id. at -, 207 N.W.2d at 832-33.
113. Id. at -, 207 N.W.2d at 829.
114. Id. at -, 207 N.W.2d at 830.
115.
116.
Id.
Barron, supra note 89, at 95.
117. 434 U.S. 246, 248 (1978).
118.
119.
441 U.S. 380, 382 (1979).
463 U.S. 248, 250 (1983).
-,
207 N.W.2d 826,
QUILLOIN v. WALcoTy.
ELEVEN YEARS -
[Vol. 20
LONG ENOUGH
In Quilloin v. Walcott,120 the second Supreme Court opinion regarding the rights of unwed fathers, 121 the Court unanimously held
that a man who had not legitimated his son during the preceding
eleven years had no right to veto the boy's adoption by his stepfather. 2 2 Leon Quilloin challenged the constitutionality of Georgia's
adoption statutory scheme because the applicable statute did not afford him an opportunity to veto the adoption of his non-marital
child.123 Under Georgia law, a marital child could not be adopted
without the consent of both parents unless they had been adjudicated
as unfit parents. 124 Consequently, a divorced father could veto the
adoption of his child simply by withholding his consent. 125 In the
case of a non-marital child, however, only the consent of the mother
was necessary. 126 If the unwed father did not legitimate the child
through marriage or court proceedings, he could not block the adoption of his child 127 even though he had not been found to be an unfit
28
parent.'
In contrast to Peter Stanley's long-term relationship with his
children, 129 Leon Quilloin and Ardell Williams had never lived together, and after the child's birth in 1964, Ardell assumed sole custody of their son.13 0 Quilloin visited his son occasionally and brought
gifts, but he provided little financial support. 31 In 1967, Ardell married Randell Walcott, and in 1976, Ardell consented to the adoption
of her son by her husband.132 Upon receiving notice that Walcott had
filed a petition for adoption of the eleven-year-old boy, Quilloin filed
an objection to the adoption, a petition for legitimation, and an application for a writ of habeas corpus seeking visitation rights, but not
133
custody.
All actions were consolidated for trial so that Quilloin could be
120. 434 U.S. 246 (1978).
121. Id. at 248. The United States Supreme Court's first opinion regarding the
rights of unwed fathers was rendered in the case of Stanley. See supra notes 63-89 and
accompanying text.
122. Quilloin, 434 U.S. at 253-55.
123. Id. at 247.
124. Id. at 248.
125. Id.
126. Id.
127. Id. at 249.
128. Id. at 247.
129. Stanley, 405 U.S. at 646. See supra note 73 and accompanying text.
130. Qtiilloin, 434 U.S. at 247, 251.
131. Id. at 251. Leon Quilloin "had never been a de facto member of the child's
family unit." Id. at 253.
132. Id. at 247.
133. Id. at 249-50.
1987]
PARENTAL RIGHTS
"heard with respect to any issue or other thing upon which he desire[d] to be heard, including his fitness as a parent. '134 At the hearing, the trial court did not find that Quilloin had abandoned his son
or that he was an unfit father. 135 However, the trial court found that
it was in the "best interest of the child" 13 6 to grant the adoption peti134. Id. (quoting In re Walcott, No. 8466, App. 70 (Ga. Super. Ct. July 12, 1976)).
135. Id. at 247, 251.
136. Id. at 251. In custody disputes, the court considers the "best interest of the
child" in deciding with whom the child should be placed. One authority has written
the following about this judicial standard:
This standard has been held not unconstitutionally vague. Given the variety
of fact situations involved, it must contain a degree of imprecision. But to argue that it lacks precise meaning is not to say that it is without content. Such
content has been articulated over the years. The "best interest of the child"
standard requires the judge to make an informed and rational judgment, free
of bias, as to the least detrimental alternative. No more precision appears possible. No more is constitutionally required.
G. DoUTHWAITHE, UNMARRIED COUPLES AND THE LAW 139 (1979) (footnotes omitted).
Regarding the phrase "best interest of the child," one court stated:
The phrase, "best interest of the child," means all things to all people: It
means one thing to a juvenile judge, another thing to adoptive parents, something else to natural parents, and still something different to disinterested observers. If judges were endowed with omniscience, the problem would not he
difficult; but the tendency in [people] is to apply intutition in deciding that a
child would be "better" with one set of parents than with another, and then to
express this intuitive feeling in terms of the legal standard of being "in the
best interests of the child." Courts have not laid down any definite guidelines
which can be followed in every case to ensure protection of what the average
person means by "best interest." The term, "powerful counterveiling interests," as used in Stanley, may mean nothing other than the "best interests of
the child." The "best-interests-of-the-child" test does not speak in terms of
the present, the immediate future, or even the ultimate future of the child.
Nor has it contemplated yet the question of whether the child has a constitutional right to know the identity of his natural parents.
State ex rel. Lewis, 59 Wis. 2d at -, 207 N.W.2d at 831. Regarding the best interest of
the child, the Nebraska statute regarding custody determination upon dissolution
provides:
In determining with which of the parents the children or any of them, shall
remain, the court shall consider the best interest of the children, which shall
include, but not be limited to:
(a) the relationship of the children to each parent prior to the commencement of the action and any subsequent hearing;
(b) the desires and wishes of the children if of an age of comprehension regardless of their chronological age, when such desires and wishes are based on
sound reasoning; and
(c) the general health, welfare and social behavior of the children.
NEB. REV. STAT. § 42-364(1) (Cum. Supp. 1986).
The Nebraska Supreme Court has stated: "In a controversy for the custody of an inIn re
fant . . . the court will consider the best interests of the child .......
Schwartzkopf, 149 Neb. 460, 468, 31 N.W.2d 294, 299 (1948). In commenting on the best
interest of the child standard, the court stated: "[This] court has never deprived a parent of the custody of a child merely because, on financial or other grounds, a stranger
might better provide." Hanson v. Hanson, 150 Neb. 337, 350, 34 N.W.2d 388, 395 (1948)
(quoting Norval v. Zinsmaster, 57 Neb. 158, 161, 77 N.W. 373, 374 (1898)). See generally
J. GOLDSTEIN, A. FREUD & A. SOLNIT, BEYOND THE BEST INTEREST OF THE CHILD 7-8
(1979) [hereinafter J. GOLDSTEIN] (discussing contested child placements and the paramount interest of the child).
[Vol. 20
tion and to deny the petitions for legitimation and visitation.1 3 7 Thus,
138
Quilloin's parental rights were terminated.
After losing an appeal to the Georgia Supreme Court, Quilloin
appealed to the United States Supreme Court.139 He claimed that he
was entitled under the due process clause to veto the adoption absent
a determination of his unfitness. 140 In addition, he claimed that the
difference in the statutory treatment of him and a married or di141
vorced father denied him equal protection of the law.
Ardell and her husband argued that the best interest of the child
standard could not have violated Quilloin's right to due process because Quilloin had lost any constitutionally protected interest during
the eleven years that he failed to petition for legitimation. 142 The
Court rejected this argument because Quilloin was not aware of the
legitimation procedure until after Ardell and her husband had filed
the adoption petition. 143 Upon reviewing the facts, Justice Marshall
noted that Quilloin had never had nor sought actual or legal custody
of his son.' 44 The adoption decree did not place the boy with a new
set of parents; rather, the decree simply recognized an already existing family. 145 Even the boy wanted to be adopted by his
146
stepfather.
Given this set of circumstances and that Quilloin had been heard
at the trial court hearing, the Court held that Quilloin's substantive
rights were accorded due process.147 Justice Marshall wrote:
"Whatever might be required in other situations, we cannot say that
the State was required in this situation to find anything more than
the adoption, and denial of the legitimation, were in the 'best interest
of the child.' "148 In rejecting Quilloin's equal protection claim, the
Court stated that Georgia could permissibly give Quilloin "less veto
1 49
authority than it provide[d] to a married [or divorced] father."
Quilloin had "never shouldered any significant responsibility with re137. Quilloin, 434 U.S. at 251-52.
138. Id.
139. Id. at 247.
140. Id. at 253.
141. Id. The United States Supreme Court did not consider whether the genderbased distinctions in the Georgia adoption statute violated the equal protection clause
because that issue was not properly raised in Quilloin's jurisdictional statement. Id. at
253 n.13.
142. Id. at 251.
143. Id. at 254.
144. Id. at 255.
145. Id.
146. Id. at 251.
147. Id. at 254.
148. Id. at 255.
149. Id. at 256.
PARENTAL RIGHTS
1987]
spect to the daily supervision, education, protection, or care of the
child,"' 150 whereas even a divorced father would have borne these responsibilities during his marriage. 151 Although Quilloin ultimately
lost in his effort to legitimate his son, to block the adoption, and to
attack the constitutionality of the adoption statute, the Court noted
that Quilloin had received adequate notice and was heard on his fitness and the best interest of his son prior to the approval of the adoption decree .152
CABAN V. MOHAMMED: UNWED PARENTS SIMILARLY SITUATED
The third Supreme Court opinion on the rights of unwed fathers,
Caban v. Mohammed,1 5 3 was handed down in 1979.15 In Caban, a
sharply divided Court 1 55 held that a state law that allowed an unwed
mother, but not an unwed father, to prevent the adoption of their
child violated the equal protection clause.' 5 6 The Court dubbed the
statute "another example of overbroad generalizations" based solely
on gender.' 5 7 The Court stated that the statute impermissibly "discriminate[d] against unwed fathers even when their identity is
known and they have manifested a significant paternal interest in the
child."'
58
Abdiel Caban and Maria Mohammed were unwed lovers who
lived together in New York City for five years. 159 During this time,
they conducted themselves as husband and wife and had two children, although Caban was not yet divorced from another woman. 160
When Caban and Mohammed parted company, Mohammed took the
children with her and immediately married another man.1 1 Caban
visited the children weekly until their maternal grandmother took
them to Puerto Rico. 162 Caban went to Puerto Rico, brought the
children back, and then refused to surrender custody to Moham150. Id.
151. Id. The Supreme Court did not consider the issue of gender discrimination
between unwed fathers and unwed mothers. Id. at 253 n.13.
152. Id. at 252.
153. 441 U.S. 380, 381-82 (1979).
154. Id. at 380.
155. Id. Justice Powell delivered the opinion of the Court, joined by Justices Brennan, White, Marshall and Blackmun. Id. at 381. Justice Stewart filed a dissenting
opinion. Id. at 394-401. Justice Stevens filed a dissenting opinion, joined by Chief Justice Burger and Justice Rehnquist. Id. at 401-17.
156. Id. at 391.
157. Id. at 394. See supra note 51.
158. Caban, 441 U.S. at 394.
159. Id. at 382.
160. Id.
161. Id.
162. Id.
[Vol. 20
med.1 63 Mohammed and her husband won temporary custody and
then petitioned for adoption.' 64 Caban also petitioned for adoption, 65 but he was prevented from adopting his children because Mo1 66
hammed, the biological mother, withheld her consent.
Mohammed's adoption petition
was approved, and Caban's parental
67
rights were extinguished.
On appeal to the United States Supreme Court, Caban challenged on equal protection and substantive due process grounds Section 111 of the New York Domestic Relations Law, 68 which gave the
unwed mother the exclusive right to consent to the adoption of her
son or daughter. 16 9 In examining Caban's equal protection claim, the
Supreme Court applied the "intermediate scrutiny"' 70 standard of re163. Id. at 383.
164. Id.
165. Id.
166. Id. at 384. On the other hand, Caban could have prevented the adoption by
Mohammed and her husband "only if he could show that Mohammed's adoption of the
children would not [have been] in the children's best interest." Id. at 388.
167. Id. at 383-84.
168. Id. at 381-82. Justice Powell's majority opinion noted: "As the appellant was
given due notice and was permitted to participate as a party in the adoption proceedings, he does not contend that he was denied the procedural due process held to be
requisite in Stanley .... " Id. at 385 n.3 (citation omitted). Because the Court ruled
that New York's statutory scheme was unconstitutional under the equal protection
clause, the Court expressed "no view as to whether a State is constitutionally barred
from ordering adoption in the absence of a determination that the parent whose rights
are being terminated is unfit." Id. at 394 n.16. Hence, the issue of whether Caban was
denied a substantive due process right was left undecided. Id.
169. Id. at 385 n.4.
170. See id. at 388-94. In modern day equal protection jurisprudence, the United
States Supreme Court employs three standards of judicial review when classifications
are imposed upon individuals by statute. J. NOWAK, supra note 51, at 591. The three
standards are strict scrutiny, intermediate scrutiny, and rational relationship. Id. at
591-93. The intermediate scrutiny standard of review requires that a statute that classifies people must be based on an important state interest, must be substantially related to that important governmental interest, and must be one of the lesser restrictive
alternatives available to achieve that important interest. Id. at 593. When the Court
uses this standard of review, the Court makes an independent examination of the reasonableness and the legitimacy of the statutory classification. This standard is applied
whenthe government classifies people for different treatment based upon their gender. Id. Intermediate scrutiny in sex discrimination cases "eliminates the strong presumption of constitutionality that exists under the rational basis standard of review
but it allows the government to employ a gender-based classification so long as it is a
reasonable means of achieving substantial government ends and not merely the arbitrary classifying of people by sexual stereotypes." Id. The strict scrutiny standard requires that a statute that classifies people must be based on a compelling state interest
or end, must be necessary to promote that compelling interest, and must be the least
restrictive alternative available to achieve that compelling interest. Id. at 591-92.
When the Court uses this standard of review, virtually any statutory classification will
be struck down as a violation of the equal protection clause. Id. at 591. This standard
is used to review "two categories of civil liberty cases: first, when the government act
classifies people in terms of their ability to exercise a fundamental right; second, when
the governmental classification distinguishes between persons, in terms of any right,
1987]
PARENTAL RIGHTS
view which provides that "[g]ender-based distinctions 'must serve important governmental objectives and must be substantially related to
achievement of those objectives' in order to withstand judicial scrutiny.' 17' The Court found that New York's objective of "providing
adoptive homes for its illegitimate children" was important, but that
its gender-based means were not substantially related to the state's
objective. 172 Consequently, the Court held that section 111 violated
173
the equal protection clause.
In reaching this conclusion, the Court rejected two arguments
for upholding the statute.174 First, the Court rejected New York's argument that the gender-based classifications were "justified by a fundamental difference between maternal and paternal relations--that 'a
natural mother, absent special circumstances, bears a closer relationship with her child... than a father does.' "175 To this argument, the
Court declared that "maternal and paternal roles are not invariably
different in importance."'1 76 The Court found that Caban had "a rela177
tionship with his children fully comparable to that of the mother"'
and expressly rejected the notion of "any universal differences between maternal and paternal relations at every phase of a child's
upon some 'suspect' basis." Id. at 592. "Suspect" classifications which invoke the strict
scrutiny standard are distinctions drawn on the basis of race and national origin. Id.
Under the rational relationship test, "the Court will ask only whether it is conceivable
that the classification bears a rational relationship to an end of government which is
not prohibited by the Constitution." Id. at 591. If the Court finds that the legislature
had a rational basis for enacting the classification, the Court will not invalidate the
statute. When the Court reviews economic legislation, it normally applies this standard of review, and the law is usually upheld. Id. However, the Court has invoked the
rational basis standard to strike down laws that classify people based on whether they
were born in or out of wedlock. Id. at 593. In this type of case, "the Court has described the standard employed.., as 'not toothless'; at times it has said the classification must be 'substantially related to a legitimate state interest.'" Id. (quoting
Matthews v. Lucas, 427 U.S. 495, 510 (1976); Mills v. Habluetzel, 102 S. Ct. 1549, 1554
(1982)).
171. Caban, 441 U.S. at 388 (quoting Craig v. Boren, 429 U.S. 190, 197 (1976); Reed
v. Reed, 404 U.S. 71, 75 (1971)). Craig was the first case in which a majority of justices
agreed upon a specific definition for the "intermediate scrutiny" standard of review in
sex discrimination cases. C.
proach, in
LOPER,
The Equal Protection Clause: The Two Tiered Ap-
THE SUPREME COURT: TRENDS AND DEVELOPMENTS 1978-1979, 24 (D. Opperman ed. 1979). The Reed case was the first in which the Court invalidated a statute
on the grounds of discrimination against women. K. DAVIDSON, supra note 6, at 59.
172. Caban, 441 U.S. at 391.
173. Id.
174. Id. at 388-91.
175. Id. at 388 (quoting Transcript of Oral Argument at 41, Caban). The New York
Attorney General argued as amicus curiae, urging affirmance. Id. at 381.
176. Id. at 389. Justice Powell observed that "[e]ven if unwed mothers as a class
were closer than unwed fathers to their newborn infants, this generalization concerning parent-child relations would become less acceptable as the basis for legislative distinctions as the age of the child increased." Id.
177. Id.
[Vol. 20
development.' 178
The Court also rejected the state's second justification that the
gender-based classifications created by the adoption consent statute
were necessary for facilitating adoption of children of unwed
couples.179 In support of this argument, the state contended that requiring the unwed father's consent would create a host of
problems.' 8 0 The state reasoned that such a requirement would discourage another man from marrying an unwed mother because he
"might only be a foster parent and could not adopt the mother's offspring.'' 1 Moreover, the state argued that other couples desiring to
adopt a non-marital child "would be discouraged if the natural father
could prevent the adoption by the mere withholding of his consent. '18 2 The argument continued:
To require the consent of fathers of children born out of
wedlock . .. or even some of them, would have the overall
effect of denying home 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,8 3the worthy process of adoption
would be severely impeded.'
While the Supreme Court acknowledged that certain unwed fathers might block the adoption of their children, 8 4 the Court rejected this line of reasoning as sufficient to warrant discrimination
against unwed fathers. The Court commented on this behavior:
This impediment to adoption usually is the result of a natural parental interest shared by both genders alike; it is not a
manifestation of any profound difference between the affection and concern of mothers and fathers for their children.
Neither the State nor the appellees have argued that unwed
fathers are more likely to object to the adoption of their
children than are unwed mothers; nor is there any self-evident reason why as a class they would be.' 8 5
The Court noted that in the case of newborns, "special difficulties" in identifying an unknown unwed father or in locating an unwed father might justify a statutory distinction between mothers and
fathers.' 8 6 However, the Court expressly refused to decide "whether
178.
179.
180.
181.
(1975)).
182.
183.
184.
185.
186.
Id.
Id. at 390-91.
Id. at 391.
Id. (quoting In re Malpica-Orsini, 36 N.Y.2d 568, 573, 331 N.E.2d 486, 490
Caban, 441 U.S. at 390.
Id. (quoting In re Malpica-Orsini, 36 N.Y.2d at 572, 331 N.E.2d at 489).
Id. at 391.
Id. at 391-92.
Id. at 392.
PARENTAL RIGHTS
1987]
such difficulties would justify a statute addressed particularly to newborn adoptions, setting forth more stringent requirements concerning
the acknowledgement of paternity or a stricter definition of
1 8s 7
abandonment.
LEHR V. ROBERTSON: NOTICE WITHIN FATHER'S CONTROL
In the fourth and most recent Supreme Court case, Lehr v. Robertson,1 88 the Court held that the fourteenth amendment does not
give an unwed father an "absolute right to notice and an opportunity
to be heard"1 8 9 before his child may be adopted, if the father "has
never had any significant custodial, personal or financial relationship" with the child.1 90 The Court emphasized that in Lehr, the father "did not seek to establish a legal tie until after [the child] was
two years old"'191 and "the right to receive notice was completely
92
within [his] control.'
Jonathan Lehr and Lorraine Robertson began living together in
New York in 1974193 and their child, Jessica, was born out of wedlock
in 1976.194 While Robertson was confined to the hospital before and
after Jessica's birth, Lehr visited her every day.1 95 Robertson openly
acknowledged to friends and relatives that Lehr was Jessica's father.196 However, Lehr's name was not put on Jessica's birth certificate, and after Robertson left the hospital, neither she nor Jessica
returned to live with Lehr.197 According to Lehr, upon leaving the
hospital Robertson concealed her and Jessica's whereabouts from
him. 198 Even though he hired a private investigator, Lehr had little
success in locating or visiting them.1 99 When he located them in Au187.
188.
189.
190.
191.
192.
193.
Id. at 392 n.11.
194.
Id. at 250.
463 U.S. 248 (1983).
Id. at 250.
Id. at 262.
Id.
Id. at 264.
Id. at 268.
195. Id. at 269.
196. Id.
197.
198.
Id. at 252.
Id. at 269. The facts in Lehr are somewhat ambiguous, and the picture that is
painted depends on whether the Court majority or the dissenters hold the brush. At
one point in his dissent, Justice White accuses the majority of not telling "the whole
story." Id. at 270-71. He complained that the Court could not "fairly make a judgment
based on the quality or the substance of the [father-daughter] relationship without a
complete and developed factual record." Id. at 271. The Court majority, on the other
hand, accepted Lorraine Robertson's version of the events and based its decision upon
her story. Id&
199. Id. at 269.
[Vol. 20
gust, 1978, he learned that Robertson had married another man.200
When Lehr offered financial support for Jessica and requested permission to visit her, Robertson threatened to have him arrested. 20 1
Subsequently, and unknown to Lehr, Robertson and her hus20 2
band filed an adoption petition in Ulster County, New York.
Under New York's adoption statutes, seven classes of unwed fathers
were entitled to receive notice of any adoption proceeding involving
their children. 20 3 Still unaware of the adoption proceeding, Lehr
200. Id.
201. Id.
202. Id. at 252-53.
203. Id. at 251. Justice Stevens wrote that the New York statute entitled seven
classes of unwed fathers to receive notice of any adoption proceeding involving their
children. Id. Because Lehr did not fall within any of these seven groups, he did not
receive notice. Id. 251-52. The Court noted that the applicable statute provided:
"2. Persons entitled to notice, pursuant to subdivision one of this section,
shall include:
"(a) any person adjudicated by a court in this state to be the father of the
child;
"(b) any person adjudicated by a court of another state or territory of the
United States to be the father of the child, when a certified copy of the court
order has been filed with the putative father registry, pursuant to section
three hundred seventy-two-c of the social services law;
"(c) any person who has timely filed an unrevoked notice of intent to claim
paternity of the child, pursuant to section three hundred seventy-two of the
social services law;
"(d) any person who is recorded on the child's birth certificate as the child's
father;
"(e) any person who is openly living with the child and the child's mother at
the time the proceeding is initiated and who is holding himself out to be the
child's father;
"(f) any person who has been identified as the child's father by the mother in
written, sworn statements; and
"(g) any person who was married to the child's mother within six months
subsequent to the birth of the child and prior to the execution of a surrender
instrument or the initiation of a proceeding pursuant to section three hundred
eighty-four-b of the social services law.
"3. The sole purpose of notice under this section shall be to enable the
person served pursuant to subdivision two to present evidence to the court relevant to the best interest of the child."
Id. at 251 n.5 (quoting N.Y. DOM. REL. LAw § 111(a)(2)-(3) (McKinney 1977 & Supp.
1982-1983)). At the time Jessica's adoption order was entered, the Court also noted
that the following statute provided:
"1. The department shall establish a putative father registry which shall
record the names and addresses of... any person who has filed with the registry before or after the birth of a child out-of-wedlock, a notice of intent to
claim paternity of the child....
"2. A person filing a notice of intent to claim paternity of a child ... shall
include therein his current address and shall notify the registry of any change
of address pursuant to procedures prescribed by regulations of the
department.
"3. A person who has filed a notice of intent to claim paternity may at any
time revoke a notice of intent to claim paternity previously filed therewith
and, upon receipt of such notification by the registry, the revoked notice of
intent to claim paternity shall be deemed a nullity, nunc pro tunc.
"4. An unrevoked notice of intent to claim paternity of a child may be intro-
1987]
PARENTAL RIGHTS
filed a visitation and paternity petition in Westchester County, New
York.2° 4 When Robertson was notified of Lehr's paternity proceeding she informed the Ulster county judge who was hearing the adoption case.20 5 The judge concluded, pursuant to the New York
adoption consent statute, that Lehr was not required to be notified of
the adoption proceeding because Lehr did not fall within any of the
seven groups of unwed fathers entitled to notice. 20 6 Therefore, the
judge entered the adoption order in favor of Robertson and her hus20 8
band.20 7 The adoption order terminated Lehr's paternity rights.
Robertson asked the Westchester county judge to dismiss Lehr's petition. 2° 9 Because the adoption order had extinguished Lehr's rights,
210
his petition was dismissed.
Lehr filed suit, asking that the adoption order be vacated. 21 ' After losing in the New York courts, he appealed to the United States
Supreme Court, claiming that section 111 of the New York Domestic
Relations Law violated his constitutional rights to due process and
equal protection.212 Lehr claimed that he had "an absolute right to
notice and an opportunity to be heard" before Jessica could be
214
adopted.213 The Supreme Court, however, disagreed.
In regard to the due process challenge, the Court held that the
New York statute had not denied Lehr due process because the right
to receive notice was completely within Lehr's control.2 1 5 To bring
himself within the statute's protection, all Lehr had to do, according
to the Court, was to mail a postcard to the New York Putative Father
Registry.216 The Court stated that "[t]he possibility that he may have
duced in evidence by any party, other than the person who filed such a notice,
in any proceeding in which such fact may be relevant.
"5. The department shall, upon request, provide the names and addresses of
persons listed with the registry to any court or authorized agencies, and such
information shall not be divulged to any other person, except upon order of a
court for good cause shown."
Id. at 250 n.4 (quoting N.Y. SOC. SERV. LAW § 372(c) (McKinney Supp. 1982-1983)).
204. Id. at 252.
205. Id.
206. Id. at 251-52.
207. Id. at 253.
208. Id. By the time the adoption order was approved, Jessica had lived with her
stepfather for twenty-one months. Id. at 264 n.22.
209. Id.
210. Id.
211. Id.
212. Id. at 255. The New York Court of Appeals held that Caban v. Mohammed
was not retroactive, Robertson was not guilty of a fraud upon the Ulster County Court,
and that the Ulster county judge did not abuse discretion in entering the adoption order. Id. at 254 (citing In re "xx," 54 N.Y.2d 417, -, 430 N.E.2d 896, 898-900 (1981)).
213. Lehr, 463 U.S. at 250.
214. Id.
215.
Id. at 264.
216. Id.
[Vol. 20
failed to do so because of his ignorance of the law cannot be a sufficient reason for criticizing the law itself. 2 1 7 Moreover, the Court
recognized that Lehr had had more than two years to assert his paternal rights under the statute.218 In commenting upon New York's
adoption consent statute, the Court explained that the state legislature had adopted the statute in response to the due process requirements of Stanley.219 Upon reviewing the legislative history of the
statute, the Court surmised that the legislature intended to provide
automatic notice to seven classes of unwed fathers "who [were] likely
to have assumed some responsibility for the care of their natural children."220 However, the Court emphasized that "[i]f this scheme were
likely to omit many responsible fathers, and if qualification for notice
were beyond the control of an interested putative father, it might be
'221
thought procedurally inadequate.
In Lehr's case, he had established no legal,2 22 "custodial, personal, or financial relationship 223 with Jessica. That Lehr had a biological relationship with Jessica was not enough to entitle him to
prior notice and an opportunity to be heard concerning her adoption.224 In regard to the biological link, the Court stated:
217. Id.
218. Id. at 262, 263 n.20. Amendments to section 111(a) of the New York domestic
relations law that provided for notice to the seven classes of unwed fathers were enacted in 1976, the same year as Jessica's birth. Id. at 263 n.20. The amendments were
made in response to Stanley. Id. at 263.
219. Id.
220. Id.
221. Id. at 263-64.
222. See supra note 203. Jonathan Lehr had no legal relationship with Jessica because he had failed to register with the putative father registry. Lehr, 463 U.S. at 251
n.5 (quoting N.Y. Soc. SERV. LAw § 372(c) (McKinney Supp. 1982-1983)).
223. Lehr, 463 U.S. at 267.
224. Id. at 262. Justice Stevens wrote: "Parental rights do not spring full-blown
from the biological connection between parent and child. They require relationships
more enduring." Id. at 260-61 (emphasis omitted) (citations omitted) (quoting Caban,
441 U.S. at 397). Justice Stevens added:
When an unwed father demonstrates a full commitment to the responsibilities
of parenthood by "com[ing] forward to participate in the rearing of his child,"
his interest in personal contact with his child acquires substantial protection
under the Due Process Clause. At that point it may be said that he "act[s] as a
father toward his children." But the mere existence of a biological link does
not merit equivalent constitutional protection.
Id. at 261 (citations omitted) (quoting Caban, 441 U.S. at 392, 389 n.7).
Several commentators have written about the constitutional importance of the distinction between an inchoate and a fully developed relationship. See, e.g., Comment,
Caban v. Mohammed: Extending the Rights of Unwed Fathers 46 BROOKLYN L. REV.
95, 115-16 (1979) (stating that "the unwed father's interest springs not from his biological tie with his illegitimate child, but rather, from the relationship he has established"); Comment, Constitutional Law - Equal Protection - New York Statute
Requiring Consent of Mother, But Not of Father,As Prerequisiteto Adoption of Illegitimate Child Violates the Fourteenth Amendment Because It Draws Gender-basedDistinction Which Bears No Substantial Relation to State Interest EncouragingAdoption
1987]
PARENTAL RIGHTS
The significance of the biological connection is that it offers the natural father an opportunity that no other male
possesses to develop a relationship with his offspring. If he
grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessing of
the parent-child relationship and make uniquely valuable
contributions to the child's development. If he fails to do so,
the Federal Constitution will not automatically compel a
state to 2listen
to his opinion of where the child's best inter2 5
ests lie.
The Court concluded that New York's statutory scheme "adequately protected" Lehr's opportunity and "inchoate interest" 226 in
forming a relationship with Jessica, but that he had failed to seize the
opportunity. 227 Given this basic finding, the Court also rejected his
equal protection claim. 228 According to the Court, while the New
York statute guaranteed procedural rights to all unwed mothers and
only certain classes of unwed fathers, it did not discriminate against
Lehr because he was not "similarly situated" with these other parents. 229 They had relationships with their children, while Lehr did
not.
230
REACTIONS TO STANLEY:
THE MORNING AFTER IN NEBRASKA
Confronted with the reality of the new dawn in the constitutionally protected rights of unwed fathers, Nebraska authorities began to
of flegitimate Children, 29 EMORY L.J. 833, 854 (1980) (stating that "an unwed father's
rights in his child do not spring solely from the biological fact of his parentage, but
rather from his willingness to admit his paternity and express some tangible interest
in the child"); Note, The Putative Father's ParentalRights: A Focus on "Family", 58
NEB. L. REV. 610, 617 (1979) (stating that "a putative father's failure to show a substantial interest in his child's welfare and to employ methods provided by state law for solidifying his parental rights, e.g., legitimation, will remove from him the full
constitutional protection afforded the parental rights of other classes of parents").
225. Lehr, 463 U.S. at 262. The dissenters rejected the majority's notion that the
biological relationship was only significant in that it offered the unwed father an opportunity to form a relationship. Id. at 271-72. Writing for the dissenters, Justice
White stated:
A "mere biological relationship" is not as unimportant in determining the nature of liberty interests as the majority suggests.
"[T]he usual understanding of 'family' implies biological relationships,
and most decisions treating the relation between parent and child have
stressed this element." The "biological connection" is itself a relationship that
creates a protected interest. Thus the "nature" of the interest is the parentchild relationship; how well developed that relationship has become goes to its
"weight," not its "nature."
Id. (citation omitted).
226. Id. at 265.
227. Id. at 264.
228. Id. at 268.
229. Id. at 266-68.
230. Id. at 267.
[Vol. 20
consider whether the Nebraska adoption statute could pass the constitutional muster sounded by Stanley,231 Vanderlaan,232 and Rothstein.233 At the time of these 1972 judicial pronouncements,
Nebraska's adoption consent statute provided an unwed father with
no veto power over the adoption of his child.2 3 4 Placing a non-mari235
tal child for adoption required only consent of the unwed mother.
The consent of the unwed father was not statutorily required. 23 6 The
appearance of Stanley on the horizon made this statutory scheme
237
constitutionally suspect.
Movements to revise the Nebraska statute became urgent in
March, 1974, when a county court judge required publication of an
adoption proceeding notice to an unwed father whose identity was
unknown.2 38
Adoption authorities became alarmed when a notice
similar to the following was published in Sarpy County:
Notice. "Sarpy County, the County Court of Sarpy County,
Nebraska," book, page and number given [sic], "the matter
of the adoption of baby girl Jones, a minor, to the unknown
father and to all concerned. Notice is hereby given that a petition has been filed in the adoption of baby girl Jones, a minor, alleging that this child has been abandoned by her
natural father, as defined by Nebraska statute, and that a pe231. 405 U.S. at 645. See supra notes 63-89 and accompanying text.
232. 405 U.S. at 1051. See supra notes 90-95 and accompanying text.
233. 405 U.S. at 1051. See supra notes 97-115 and accompanying text.
234. NEB. REV. STAT. § 43-104 (REISSUE 1974) (currently codified at NEB. REV.
STAT. § 43-104 (Cum. Supp. 1986)). When the Stanley, Vanderlaan and Rothstein decisions were announced, the Nebraska adoption consent statute provided:
No adoption shall be decreed unless a petition therefor is accompanied by
written consents thereto executed by (1) the minor child, if over fourteen
years of age, (2) any district court or separate juvenile court in the state of
Nebraska having jurisdiction of the custody of a minor child by virtue of divorce proceedings had in any district court or separate juvenile court in the
State of Nebraska, and (3) both parents, if living; the surviving parent of a
child born in lawful wedlock; or the mother of a child born out of wedlock
235. Id. Prior to Stanley, adoption statutes in virtually all states treated the mother
of the non-marital child as the sole parent for purposes of consent to adoption. See
Barron, supra note 89, at 95; Comment, Protecting the Putative Father's Rights After
Stanley v. Illinois: Problems in Implementation, 13 J. FAM. L. 115, 118-19 (1973-74);
Comment, The Emerging Constitutional Protection of the Putative Father's Parental
Rights, 70 MICH. L. REV. 1581, 1583 (1972); Note, The "StrangeBoundaries" of Stanley:
ProvidingNotice of Adoption to the Unknown PutativeFather, 59 VA. L. REV. 517, 518
(1973); Note, Unwed Fathersand the Adoption Process, 22 WM. & MARY L. REv. 85, 85
(1980).
236. NEB. REV. STAT. § 43-104 (REISSUE 1974) (currently codified at NEB. REV.
STAT. § 43-104 (Cum. Supp. 1986)).
237. PaternityProceduresBill: Judic. Comm. Statement on L.B. 224, Neb. Unicameral, 84th Leg., 1st Sess. 1 (Feb. 3, 1975) [hereinafter Statement].
238. PaternityProceduresBill: Hearing on L.B. 224 Before the Judic. Comm., 84th
Leg., 1st Sess. 6-8 (Jan. 29, 1975) [hereinafter Hearing]. See supra notes 81-91 and accompanying text.
19871
PARENTAL RIGHTS
tition will be heard in this239Court, on some date [sic], at [nine
o'clock] in the morning."
While publication of a similar notice occurred in a metropolitan
county where potential community repercussions were minimal, the
"horror" 240 of possibly publishing similar notices in rural counties
prompted adoption agencies and certain attorneys to band together in
an effort to revise the statute. 24 1 The product of this effort was Legislative Bill 224 ("L.B. 224"), which was "intended to provide a definitive procedure whereby the rights of paternity, if any, of a natural
father of a child born out of wedlock being placed for adoption may
be resolved and/or extinguished. ' 24 2 The device used to achieve this
goal was the statutory requirement that an unwed father file a notice
of intent to claim paternity within five days of his child's birth or for24
ever lose any claim of fatherhood. s
Primary supporters of L.B. 224 were the adoption agencies and
their attorneys. 244 Joining them was a group of attorneys representing clients interested in adopting children of unwed couples. 245 Both
of these groups were interested in mitigating the impact of the due
process requirements of Stanley and the implications of Vanderlaan
and Rothstein.246 At the legislative hearing on L.B. 224, these groups
focused their testimony on the "serious problem[s]" wrought by the
Supreme Court's decision. 247 Potential problems discussed at the
hearing included: (1) publishing for an unwed father whose identity
was unknown or not divulged,248 (2) notifying a known unwed father
whose location was unknown or not divulged, 249 and (3) providing
notice and a hearing to an unwed father who wanted to keep his
child and, therefore, would not voluntarily consent to relinquishment
250
of his paternal rights.
The groups' proposed solution to these problems was to "negat[e]
the necessity of procuring the consent of the natural father of a child
239. Hearing,supra note 238, at 7. See supra notes 81-89, 186-88 and accompanying
text.
240. Hearing,supra note 238, at 8. See supra notes 81-89 and accompanying text.
241. Hearing,supra note 238, at 6-7. See supra notes 81-89 and accompanying text.
242. Introducer's Statement of Purpose: L.B. 224 by Sen. Gary Anderson 1 (Jan.
25, 1975) [hereinafter Statement].
243. L.B. 224, § 5, 84th Leg., 1st sess., 1975 Neb. Laws 444, 445 (codified at NEB.
REV. STAT. §§ 43-102, -104, -104.06 (Cum. Supp. 1986); id. §§ 43-104.01-.05 (Cum. Supp.
1984)).
244. Statement, supra note 237, at 1.
245. Id.
246. Hearing,supra note 238, at 7.
247. Id. See supra notes 186-87 and accompanying text.
248. Id. at 7, 12. See supra notes 186-87 and accompanying text.
249. Id. at 10. See supra notes 186-87 and accompanying text.
250. Hearing,supra note 238, at 2, 10.
[Vol. 20
born out of wedlock for the adoption of the child,"'251 unless he dis2 52
covered the statute and filed the necessary notice within five days.
The drafters of the bill chose a five-day period "primarily because
this is pretty much a standard length of time that a child and the
mother might be kept in the hospital anyway. ' 253 If a notice of intent to claim paternity was not filed within five days, L.B. 224 provided that only the mother's relinquishment was needed. 25 4 If a
notice of intent was filed, L.B. 224 provided procedures for adjudicat2 56
55
ing the paternity claim 2 and for settling the custody question.
251. Statement, supra note 242. at 1.
252. Statement, supra note 237, at 1. See L.B. 224, § 3, 1975 Neb. Laws at 445 (codified at NEB. REV. STAT. § 43-104.02 (Reissue 1984)). Section 3 of L.B. 224 provided:
(1) Relinquishment or consent for the purpose of adoption given only by a
mother of a child born out of wedlock pursuant to section 43-104 shall be sufficient to place the child for adoption and the rights of any alleged father shall
not be recognized thereafter in any court unless the person claiming to be the
father of the child has filed with the Department of Public Welfare on forms
provided by the department, within five days after the birth of such child, a
notice of intent to claim paternity.
(2) The notice shall contain the claimant's name and address, the name and
last-known address of the mother, and the month and year of the birth or the
expected birth of the child.
L.B. 224, § 3(1)-(2), 1975 Neb. Laws at 445 (codified at NEB. REV. STAT. § 43-104.02 (Reissue 1984)).
253. Hearing, supra note 238, at 2.
254. L.B. 224, § 3(1), 1975 Neb. Laws at 445 (codified at NEB. REV. STAT. § 43104.02(1) (Reissue 1984)). See supra note 252.
255. L.B. 224, § 6, 1975 Neb. Laws at 446 (codified at NEB. REV. STAT. § 43-104.05
(Reissue 1984)). This section provided:
If a notice of intent to claim paternity is filed within five days after the birth
of such child, either the claimant-father, the mother, or her agent specifically
designated in writing may file a petition in the county court in the county
where such child is a resident for an adjudication of the claim of paternity.
After the filing of such petition, the court shall set a hearing date upon proper
notice to the parties not less than ten nor more than twenty days after such
filing. If the mother contests the claim of paternity, the court shall take such
testimony as shall enable it to determine the facts.
256. Id. § 7, 1975 Neb. Laws at 446 (codified at NEB. REV. STAT. § 43-104.06 (Cum.
Supp. 1986)). This section provided:
(1) If the claimant seeks to oppose any proposed relinquishment of a child by
the mother and requests custody of the child, the court shall inquire into the
fitness of the claimant, his ability to properly care for the child, and whether
the best interests of the child will be served by granting custody to the claimant. Only upon the appointment of a guardian ad litem for the child, and a
finding that the claimant is a fit person, is able to properly care for the child,
and that the child's best interests will be served by granting custody to the
claimant, shall custody be granted to the claimant.
(2) Upon relinquishment by the mother to a child placement agency licensed
by the State of Nebraska, or upon a finding that the child's best interest
would not be served by granting custody to the claimant, together with the
recommendation by the guardian ad litem, and a finding that termination of
the rights of the mother and the father is in the best interest of the child, the
court shall terminate the rights of the mother and father and confer such
rights upon the licensed child placement agency to whom the relinquishment
has been given.
1987]
PARENTAL RIGHTS
The proposed legislation also provided that the printed notice of intent must contain a statement of acknowledgement on the part of the
unwed father of his liability for contribution to the support and education of his child and to the pregnancy-related medical expenses of
the mother.257 L.B. 224 was enacted by the legislature 258 and was
subsequently signed into law by the Governor on March 7, 1975.259
The provisions and effects of section 43-104.02 of the Nebraska
adoption statutory scheme are of critical importance to an unwed father in Nebraska. First, the statute provides the only opportunity for
an unwed father to secure a hearing regarding the future of his child
and a proposed adoption.2 60 If the father fails to file within five days,
his consent to the adoption is not required 261 and no court will hear
his objections to a subsequent adoption. 262 Second, the statute was
the only method by which an unwed father could initiate and secure
263
an opportunity to be considered as a proper custodian for his child.
Third, the statute provided an unwed father's only avenue to petition
a court to declare his paternity. 264 If he failed to file within five days,
no court would hear his pleading because he did not have a "valid
257. Id. § 4, 1975 Neb. Laws at 445 (codified at NEB. REV. STAT. § 43-104.03 (Reissue
1984)). This section provided:
Within three days after the filing of a notice to claim paternity, the Director
of Social Services shall cause a certified copy of such notice to be mailed by
certified mail to (1) the mother or prospective mother of such child at the
last-known address shown on the notice of intent to cliam paternity, or (2) an
agent specifically designated in writing by the mother or prospective mother
to receive such notice. The notice shall be admissible in any action for paternity under sections 43-1401 to 43-1413, and shall estop the claimant from denying his paternity of such child thereafter and shall contain language that he
acknowledges liability for contribution to the support and education of the
child after its birth and for contribution to the pregnancy-related medical expenses of the mother.
258. 1 NEB. LEG. J., 84th Leg., 1st Sess. 698-99 (1975).
259. 1 at 807. The following was noted in the legislative history of L.B. 224:
[This bill] says in effect that if the father is going to plant the seed, so to
speak, and if he wants to have something to do with, in terms of the child or
harvesting the crop, he really has to maintain that interest and come forward
and express his responsibility in some tangible way ....
Hearing,supra note 238, at 11.
260. NEB. REV. STAT. § 43-104.02 (REISSUE 1984). See also infra note 266.
261. NEB. REV. STAT. § 43-104.04 (REISSUE 1984). SECTION 43-104.04 PROVIDES:
If a notice of paternity is not filed within five days, the mother of a child born
out of wedlock or an agent specifically designated in writing by the mother
may request, and the Department of Social Services shall supply, a certificate
that no notice of intent to claim paternity has been filed with the department
and the filing of such certificate pursuant to section 43-102 shall eliminate the
need or necessity of a consent or relinquishment for adoption by the natural
father of such child.
262. Id. § 43-104.02 (Reissue 1984).
263. Shoecroft, No. 391-287, at 4 (declaring the five-day limitation in sections 43104.02 through 43-104.06 of the Nebraska Revised Statutes unconstitional). See iqfra
note 266 (discussing paternity actions and L.B. 813).
264. Id., slip op. at 4. See infra note 266.
[Vol. 20
cause of action. '265 In short, a notice of intent filed within five days
was an unwed father's only means of invoking the court's jurisdiction, and filing of a notice is still an unwed father's only means of
invoking the court's jurisdiction when the mother consents to relinquish the child for adoption.2 66 Although the Nebraska adoption
265. Paltani v. Creel, 169 Neb. 591, 594, 100 N.W.2d 736, 738 (1960). See intfra note
266.
266. While it may seem peculiar that adoption statutes, exclusive of a paternity
statute, would regulate and foreclose so many rights, reference to the common law explains the peculiarity. Under the common law of Nebraska and other states, adoption
proceedings and paternity actions were unknown. "In common law jurisdictions the
only method of legitimating bastards is by or under a statute ....
Timmerman v.
Timmerman, 163 Neb. 704, 709, 81 N.W.2d 135, 139 (1957) (quoting 10 C.J.S. Bastards
§ 9, at 53 ( )). This being the case, in addition to the adoption statutes, the Nebraska
legislature has also provided paternity legislation. See NEB. REV. STAT. §§ 43-1406, 1411, -1412 (Cum. Supp. 1986); id, §§ 43-1401 to -1405, -1407 to -1410, -1413 (Reissue
1984). At the time Shoecraft was decided, the paternity statute allowed three different
plaintiffs to bring actions to declare an unwed father's paternity, but the statute did
not allow the unwed father to bring an action. He could only be a defendant, able to
be sued by the child's mother, the child's guardian or next friend, or the county which
might be required to support the child. See id. § 43-1406 (Cum. Supp. 1986). An unwed
father's petition to have himself declared the father of his children "[did] not state a
cause of action" and would have been dismissed by the court. Paltani v. Creel, 169
Neb. 591, 594, 100 N.W.2d 736, 738 (1960). If the unwed father was sued by one of the
three permitted plaintiffs, he could then raise the issues of custody and visitation
rights. "In an action to establish paternity, issues of custody and visitation rights are
incidental to the primary cause of action and fall within the general equity jurisdiction
of the District Court." Cox v. Hendricks, 208 Neb. 23, 29, 302 N.W.2d 35, 38 (1981). On
April 9, 1986, subsequent to the Nebraska Supreme Court's decision in Shoecraft, the
Nebraska legislature amended the paternity statute by approving Legislative Bill 813
("L.B. 813"). L. B. 813, 89th Leg., 2d Spec. Sess., 1986 Neb. Laws 1155, 1155 (codified at
NEB. REV. STAT. §§ 43-1411 to -1412 (Cum. Supp. 1986)). L.B. 813 allowed certain unwed fathers to bring causes of action to have their paternity declared by the courts. Id.
§ 1(1) (codified at NEB. REV. STAT. § 43-1411 (Cum. Supp. 1986)). However, at the request of the Nebraska Catholic Conference, the legislature exempted from the benefits
of the statute, unwed fathers who, like Jerry Shoecraft, failed to file a notice of intent
to cliam paternity within five days. Floor Debate on L.B. 813, Neb. Unicameral, 89th
Leg., 2d Sess. 9225-26 (Feb. 27, 1986) (statement of Sen. Barrett). L.B. 813 allowed an
unwed father of a non-marital child to initiate "[a] civil proceeding to establish the paternity of [the] child . . . unless consent or relinquishment has been made by the
mother... for the purposes of adoption." L.B. 813, § 1(1) (codified at NEB. REV. STAT.
§ 43-1411(1) (Cum. Supp. 1986)). L.B. 813 was approved by the Governor on April 14,
1986, and became effective on July 17, 1986. NEB. LEG. J., 89th Leg., 2d Sess. 2333
(1986) (unbound ed.); NEB. CONST. art. III, § 27; Telephone conversation with Clerk,
Nebraska Legislature (Aug. 18, 1986). If sued in a paternity action and if adjudicated
to be the "father" of the child even over his objection, presumably the unwed father
would be entitled to notice and a hearing in any subsequent action to terminate his
parental rights. See NEB. REV. STAT. § 43-291 (Reissue 1984). If the state attempts to
terminate the parental rights of the adjudicated father of a non-marital child, presumably not only must neglect or abandonment be proven, but the state must also show
that the termination of parental rights is in the child's best interest. See id. § 43-292
(Reissue 1984). See also Brief for Appellee and Cross-Appellant at 20, Shoecrqft; Comment, Recognizing the Invisible Factors: Judicial Review of Rehabilitation Plans in
Termiation of ParentalRights Cases After In Re L.J., J.J., & J.N.J., 19 CREIGHTON L.
REV. 380, 387-88 (1986) (discussing factors relevant upon consideration of termination
1987]
PARENTAL RIGHTS
statutes foreclose the father's parental rights, the statutes do not require anyone, including the unwed mother of the child, to identify
him; nor is there any provision for giving actual notice to the father
267
even if he is identified and his whereabouts are known.
Under the Nebraska adoption statutes, unmarried men and women are treated very differently. An unwed mother has automatic
custody of her child, and her parental rights cannot be terminated
unless she is adjudicated to be unfit, has abandoned the child or voluntarily consents to relinquishment. 268 The statutes also treat an unof parental rights). In addition to a courtroom proceeding to determine paternity, the
applicable Nebraska statute also provides that paternity may be established by "acknowledgement." NEB. REV. STAT. § 43-1402 (Reissue 1984). The statute governing acknowledgment of paternity defines "acknowledgment" as follows:
A person may state in writing that he is the father of a child or perform acts,
such as furnishing of support, which reasonably indicate that he considers
himself to be the father of such child, and in such case he shall be considered
to have acknowledged the paternity of such child. A child whose parents
marry is legitimate.
Id. § 43-1409 (Reissue 1984).
267. NEB. REV. STAT. §§ 43-104, -104.06 (Cum. Supp. 1986); id. §§ 43-104.01-.05 (Reissue 1984).
268. Id. § 43-104 (Cum. Supp. 1986). On the contrary, an "unwed father has no automatic right to custody." Shoecraft v. Catholic Social Serv. Bureau, 222 Neb. 574, 578,
385 N.W,2d 448, 452 (1986) (citation omitted). First, he must file the required notice
within five days. Second, his paternity must be established in a court proceeding. Id.
Third, in the event the mother decides to relinquish the child, the father must then
prove to a court that he "is a fit person, is able to properly care for the child, and that
the child's best interests will be served by granting custody." Id. If he cannot carry
this burden of proof, his child will be placed for adoption. NEB. REV. STAT. § 43-104.06
(Cum. Supp. 1986). No statutory hurdles like these face an unwed mother who wants
to keep and raise her child. Shoecraft, 222 Neb. at 578, 385 N.W.2d at 451-52. No one
can place her child for adoption without her consent or a court determination that she
is unfit, regardless of whether she has ever had custody. Id. Nebraska adoption procedures are as follows:
[N]o adoption shall be decreed unless the petition therefor is accompanied by
written consents thereto executed by (1) the minor child, if over fourteen
years of age, or the adult child of the adopting person's spouse, (2) any district
court or separate juvenile court in the State of Nebraska having jurisdiction of
the custody of a minor child by virtue of divorce proceedings had in any district court or separate juvenile court in the State of Nebraska, and (3) both
parents, if living; the surviving parent of a child born in lawful wedlock; or,
subject to the provisions of sections 43-104.02 to 43-104.06, the mother of a
child born out of wedlock; except that consent shall not be required of any
parent who shall (a) have relinquished the child for adoption by a written instrument; (b) have abandoned the child for at least six months next preceding
the filing of the adoption petition; (c) have been deprived of his or her parental rights to such child by the order of any court of competent jurisdiction, or
prior to July 13, 1967, have been deprived of the custody of such child by an
order of any juvenile court of competent jurisdiction by reason of such child
having been declared a dependent or neglected child, within the provisions of
sections 43-201 to 43-227; or (d) be incapable of consenting.
NEB. REV. STAT. § 43-104 (Cum. Supp. 1986). Presumably, the only way that an unwed
mother's parental rights can be terminated, absent her consent, is under section 43-292
of the Nebraska Revised Statutes. Id. § 43-292 (Reissue 1984). She is presumably entitled to notice and a hearing prior to termination of her rights, regardless of whether or
[Vol. 20
wed father very differently than a father who is married to or
divorced from the child's mother. 269 If the father of the child has a
present or a past marital relationship with the child's mother, no
adoption can take place without his consent, absent a showing of
abandonment or unfitness and a showing that termination of his
270
rights are in the child's best interest.
ANALYSIS
When Jerry Shoecraft filed his petition praying for Justin
Michael's return, he confronted the Nebraska courts with important
issues regarding the constitutional rights of unwed fathers. 271 By
seeking shelter under the right of privacy, his prayer for a writ of
habeas corpus challenged the constitutionality of Nebraska's adoption
statutes, particularly the five-day limitation on filing a notice of intent to claim paternity.272 The Nebraska courts were forced to decide
whether Jerry Shoecraft had a right to form and maintain a relationship with his infant son and, if he did, whether he was provided with
due process and equal protection of the law upon termination of that
273
right.
RIGHT TO A RELATIONSHIP
The Nebraska Supreme Court should have and did find that
Shoecraft possessed a constitutionally protected right to form and
maintain a relationship with his son. 274 Also, the District Court of
275
Lancaster County determined that Shoecraft did have such a right.
Citing Stanley and Caban, the district court in Shoecraft provided
that "[a] parent's interest in his or her children is a fundamental lib'276
erty protected by the Due Process and Equal Protection Clauses.
The court stated that terminating Shoecraft's parental rights "deprive[d] him of a substantive right. '277 The district court harked
back to the Lehr Court's discussion of the biological relationship of
not she has ever had custody. See id. § 43-291 (Reissue 1984); Brief for Appellee and
Cross-Appellant at 19, Shoecrqft.
269.
270.
271.
272.
273.
NEB. REV. STAT. § 43-104 (Cum. Supp. 1986).
Id.; id. § 43-292 (Reissue 1984). See supra notes 266, 268.
See supra notes 21-62 and accompanying text.
Shoecraft, 222 Neb. at 575, 385 N.W.2d at 450.
274.
275.
Shoecrqft, 222 Neb. at 577, 385 N.W.2d at 451.
Shoecraft, slip op. at 13. Even though the district court found that Shoecraft
had a right to a relationship with his son, the court did not find that he had a right to
custody. The district court held that the county court had jurisdiction over the custody
issue. Id., slip op. at 2.
1987]
PARENTAL RIGHTS
an unwed father and his child.278 Quoting the Lehr decision, the district court stated:
"The significance of the biological connection is that it offers
the natural father an opportunity that no other male possesses to develop a relationshipwith his offspring.
...
We are concerned only with whether [the state] has
adequately protected his opportunity to form such a
''279
relationship.
The district court was of the opinion that the five-day statute of
limitations was "absurdly short" and did not "adequately protect"
Shoecraft's "opportunity to form such a relationship. '28 0 The district
court judge wrote that "one might ask whether an abandonment or a
'28
relationship can be accomplished within five days of birth." '
In both the majority opinion and the dissent, the Nebraska
Supreme Court found that Shoecraft's parent-child relationship was
an interest worthy of constitutional protection. 28 2 The majority, citing Quilloin, noted that "the relationship between parent and child is
constitutionally protected. '28 3 However, the court pointed out that
Shoecraft had not "lived with the child and nurtured and supported
it and the mother. ' 28 4 Consequently, Shoecraft's rights were "readily
distinguishable from those of a separated or divorced father, and...
accordingly [the court] believe[d] that the State could permissibly
give [Shoecraft] less veto authority [over the adoption] than it provide[d] to a married father. ' 28 5 Nevertheless, the court implicitly indicated that Shoecraft's rights were substantial, because the court
applied the judicial test of "strict scrutiny" when it turned to analyzing his equal protection claim.28 6 This test is the constitutional standard of review that is evoked when a "fundamental right" is
28 7
impinged by state action.
The judicial determination that Jerry Shoecraft had a constitutionally protected liberty interest in his relationship with his son
288
meant that Shoecraft had won the first bout in his legal battle.
This was an- important determination due to the absence of precise
278.
279.
280.
281.
282.
283.
(1978)).
284.
285.
286.
287.
288.
Id, slip op. at $ 11. See supra notes 224-27 and accompanying text.
Shoecrqft, slip op. at 11 (quoting Lehr, 463 U.S. at 262-63).
Id., slip op. at
11, 13.
Id., slip op. at 12.
Shoecrqft, 222 Neb. at 577, 585, 385 N.W.2d at 451, 455.
Id. at 577, 385 N.W.2d at 451 (quoting Quilloin v. Walcott, 434 U.S. 246, 255,
Id. at 580, 385 N.W.2d at 452.
Id. at 580, 385 N.W.2d 448, 452 (quoting Quilloin, 434 U.S. at 256).
Id. at 577, 385 N.W.2d at 451.
Id. See supra note 170 and accompanying text.
See supra note 65 and accompanying text.
(Vol. 20
legal precedent from the United States Supreme Court.2 8 9 All four
cases previously considered by the Court had involved older children
rather than infants. 290 Because the youngest child involved in those
cases was over two years old, each unwed father had a substantial period of time to form a personal relationship with his offspring. Upon
the formation of an actual personal relationship between the unwed
fathers and their children, the Court recognized their interests and
gave them constitutional protection. 291 Even in Quilloin and Lehr, in
which the Court determined that there was no substantial personal
relationship, the Court carefully examined each statute to determine
whether it had adequately protected the unwed father's opportunity
292
to form such a relationship.
In his dissent, Chief Justice Krivosha also recognized that
Shoecraft had a constitutionally protected right to form and maintain
a relationship with Justin Michael. 293 The Chief Justice criticized
the majority for de-emphasizing the importance of Shoecraft's rights
based on the majority's observation that Shoecraft had not lived with
2 94
nor provided financial support for Justin Michael and Sheri Davis.
Echoing the Lehr Court's discussion and the district court's concern
regarding an "opportunity ... to develop a relationship with his offspring," Chief Justice Krivosha asked:
But how can this father, or any father, under [section] 43104.02, live with the child, nurture it, and support it if his
rights to the child can be terminated during the time that
the mother and child are in the hospital and before he is afforded any opportunity to establish those necessary ties?2 95
DUE PROCESS: ADDITIONAL PROCEDURAL SAFEGUARDS ARE NEEDED
Because the Nebraska Supreme Court determined that Shoecraft
had a constitutionally protected right to form and maintain a relationship with his infant son, the court next had to decide whether the
five-day statute of limitations that severed Shoecraft's right denied
296
him due process of law.
289. See supra notes 63-230 and accompanying text (discussing United States
Supreme Court decisions in Stanley, Quilloin, Caban and Lehr).
290. See supra notes 73, 122, 160, 191 and accompanying text.
291. See supra notes 71-72, 158.
292.
See supra notes 148, 221. In Quilloin, the unwed father was granted a hearing
before the adoption decree was granted in favor of the natural mother and her husband. Quilloin v. Walcott, 434 U.S. 246, 250 (1978). In Lehr, the adoption statute provided notice and an opportunity to be heard to seven classes of unwed fathers. See
supra note 203 and accompanying text.
294. Id.
295. Id.
296. See supra note 50 and accompanying text.
1987]
PARENTAL RIGHTS
Catholic Social Services argued that Shoecraft was not denied
due process because he had received notice of Davis' pregnancy in
2 97
June, 1984, over seven months before Justin Michael's birth.
Therefore, Catholic Social Services reasoned that Shoecraft had over
seven months plus five days within which to file his notice of intent
to claim paternity. 298 Catholic Social Services contended that had
Shoecraft exercised his rights, informed himself of the statute, and
filed the necessary notice, he would have received a statutory right to
object to the adoption and to be heard regarding his fitness as a par299
ent and the best interests of Justin Michael.
The district court judge rejected the persuasive argument advanced by Catholic Social Services. 30 0 In regard to this argument and
the issue of procedural due process, the district court judge wrote:
Granted there is nothing to prevent the father from filing
such claim prior to birth, but the normal experiences of
human behavior teach us that there is a distinct difference in
the affection and emotion one feels toward the mere expectation of birth and the object thereof.
The plaintiff, after seeing his child, attempted to
inquire as to his rights and the procedures that should be
followed in order to protect them. The evidence is not conclusive that he was given the old "run around," but the various agencies he was referred to were not helpful to him,
either through their own knowledge or a lack of interest.
He lost two of the precious five days because, in fact a weekend did intervene. The five days slipped by before he was
able to determine the procedure required by Section 43104.02. Such procedure denies him due process of law ....
301
In contrast to the district court, the Nebraska Supreme Court accepted the due process argument advanced by Catholic Social Services.30 2 The court held that the statute as applied to Shoecraft had
not denied him due process of law.303 Even though the applicable
statute provided for no notice of the child's birth, Shoecraft knew of
the pregnancy and was informed by Davis that he had a son on the
date of Justin Michael's birth.3 0 4 Under a different set of facts, in
which an unwed father received no notification of birth, the court
297.
298.
299.
300.
301.
302.
303.
304.
Brief for Appellant at 19, Shoecraft.
Id.
Id.
Shoecrft, No. 391-287, at 14.
Id. at 10, 12.
Shoecroft, 222 Neb. at 578, 385 N.W.2d at 451,
Id.
Id.
[Vol. 20
noted that the statute might violate his right to due process; such,
however, was not the case with Shoecraft. 30 5 The court found that
Shoecraft's ignorance of the law was no excuse for his failure to register within five days. 3s 6 According to the court, "[s]tatutes of limitation bar evenly the claims of the wary and the unwary and the just
' 307
and the unjust.
At the heart of procedural due process lies the notion of fundamental fairness and an "opportunity to be heard 'at a meaningful
time and in a meaningful manner.' "308 To assess what type of procedure is constitutionally due when a person's rights are impinged by
state action, the United States Supreme Court applies a balancing
test.3 0 9 Application of the balancing test requires an evaluation of (1)
the interest Shoecraft had at stake; (2) the risk that automatic termination of his rights at the end of five days would be an unjust or erroneous result and the probable value of additional procedural
safeguards; and (3) the state of Nebraska's interests in the adoption
process and the fiscal and administrative burdens that additional pro31 0
cedural safeguards would entail.
Undoubtedly, Jerry Shoecraft's interest in forming and maintaining a relationship with his son is "substantial."31 ' The United States
Supreme Court has frequently "stressed the importance of familial
bonds, whether or not legitimized by marriage, and accorded them
constitutional protection. '3 12 Both Shoecraft and Justin Michael
have a "compelling interest" in the parent-child relationship. The
court recognized that "[a] parent's interest in the accuracy and justice
of the decision to terminate his or her parental status is, therefore, a
'313
commanding one.
Catholic Social Services argued persuasively that Shoecraft had
several months prior to Justin Michael's birth to discover the statute
and file his notice of intent to claim paternity.3
14
This argument runs
counter to the proposition underlying the United States Supreme
Court's decisions upholding a woman's right to choose whether or not
305. Id.
306. Id. at 580, 385 N.W.2d at 452.
307. Id.
308. Lehr v. Robertson, 463 U.S. 248, 268 (1983) (White, J., dissenting) (quoting
Matthews v. Eldridge, 424 U.S. 319, 333 (1976); Armstrong v. Manzo, 380 U.S. 545, 552
(1965)). See supra note 50.
309. See supra note 50.
311. See supra notes 71-72 and accompanying text.
312. Little v. Streater, 452 U.S. 1, 13 (1981) (citing Stanley v. Illinois, 405 U.S. 645,
651-52 (1972)) (holding in a unanimous decision that a refusal to provide a blood test to
an indigent unwed father in a paternity action violated the due process clause).
313. Lassiter v. Department of Social Serv., 452 U.S. 18, 27 (1981).
1987]
PARENTAL RIGHTS
to terminate her pregnancy.3 15 Because the Court has ruled that
husbands and lovers have no authority to prevent abortion, and that
a woman alone makes the choice between abortion and childbirth, it
is easy to understand why Shoecraft or any other unwed father
would believe that he had no right to assert during pregnancy.3 16 In
addition, Catholic Social Services' argument ignores the sweep of
human emotion that accompanies the birth of a child and the impact
of the emergence of a third person has upon new parents. As the district court judge stated: "[T]here is a distinct difference in the affection and emotion one feels toward the mere expectation of birth and
the object thereof.1317 It is birth, not conception, that gives rise to
the emotional and legal rights of fatherhood.
Automatic statutory termination of parental rights after five
days is a procedure that carries with it a high risk of erroneous and
unjust results. Termination of parental rights is not a matter that
should hinge on constructive knowledge of the statute in every situation. 318 In all likelihood, very few unwed fathers are aware of this
statute and the crushing, irreparable consequences of its operation.
Shoecraft was unaware of the statute, and was not realistically provided with adequate time to learn of its existence.3 19 The statute cut
off Shoecraft's rights with no consideration of his situation or his actual fitness as a parent. 320 Shoecraft maintained contact with his
lover and an interest in her pregnancy and in the future of their
child.s 21 His identity and whereabouts were known. 322 He came forward to visit his son two days after birth and told his lover that he
wanted custody of their son, even if she did not.323 Shoecraft tried to
316. See supra note 28. The district court judge offered another explanation of
why an unwed father may not act to determine and assert his rights during his lover's
pregnancy. The district court judge stated:
It is reasonable that the father may have no objection to the mother keeping
the child and may not wish to appear assertive during this period. However, if
the mother later determines that such child should be relinquished for adoption, should not the natural father have some voice in such actions in determining what may be in the best interest of the child.... [Hie should have the
right to be heard.
Shoecraft, No. 391-287, at 14.
318. Stanley v. Illinois, 405 U.S. 645, 650 (1972) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961) (stating that "[t]he very nature of due process negates
any concept of inflexible procedures universally applicable to every imaginable
situation.").
322. See supra notes 25, 30-31 and accompanying text.
(Vol. 20
determine what his rights were and to assert them.3 24 He asserted
325
his rights four days too late.
Not only did the Nebraska statute operate against an unwed father like Jerry Shoecraft, but it also could have terminated the rights
of unwed fathers like Peter Stanley and Abdiel Caban. 326 The statute does not require the consent of any person claiming paternity unless he has filed the required form within the required time.327 Even
if an unwed father took his child home from the hospital and provided the infant with a permanent home, if he failed to file a notice
of intent within five days of birth, the child's mother could subsequently relinquish the child without his consent.328 The Nebraska
statute treats all unwed fathers alike without consideration of their
circumstances. 329 If they file a notice of intent within five days of
birth, then they are entitled to notice and a hearing. 330 If they fail to
file, their parental rights are automatically terminated and "shall not
33
be recognized thereafter in any court."1 '
At first glance, Shoecraft's failure to file his notice of intent resembles the situation in Lehr in which the unwed father failed to
send his postcard to New York's putative father registry.332 In Lehr,
the United States Supreme Court stated that the unwed father's "ignorance of the law cannot be a sufficient reason for criticizing the
law itself. '333 However, there are significant differences between
these two cases. First, in Lehr, the state statute that provided for filing a notice of intent to claim paternity contained no specific statute
of limitations; 334 therefore, the unwed father had two years, not five
days, to discover the statute and to file. 33 5 Second, Jonathan Lehr
never filed a notice of intent nor instituted any legal proceeding prior
to the mother's signing of the consent to adoption.33 6 Jerry
Shoecraft, on the other hand, did file his notice of intent, and he filed
it prior to Sheri Davis' signing of the consent to adoption.33 7 In addi324. See supra note 34 and accompanying text.
325.
328. See Shoecraft, 222 Neb. at 583, 385 N.W.2d at 454 (Krivosha, C.J., dissenting).
Recognizing this problem with the statute, Chief Justice Krivosha wrote: "[M]oreover,
should the unilateral decision to permit adoption to take place occur at some later
time, the father is forever barred from receiving any notice or other due process." Id.
337. See supra notes 38, 41-42 and accompanying text.
1987]
PARENTAL RIGHTS
tion, Shoecraft brought an action for a writ of habeas corpus immediately after Davis signed the consent, when Justin Michael was only
one month old. 338 Third, the New York statute provided notice and
339
an opportunity to be heard to seven classes of unwed fathers.
Under the New York statute, Jerry Shoecraft would have fit into one
of the classes and would have received notice and an opportunity to
be heard. 340 Fourth, Jonathan Lehr's daughter was being adopted by
her natural mother and the stepfather with whom she had lived for
twenty-one months of her twenty-four month life, not by strangers as
in Justin Michael's case. 341 Finally, in Lehr, the United States
Supreme Court concluded that New York's statutory scheme provided adequate due process because it was not likely to deny notice
and a hearing to many responsible fathers, and qualification for notice was not beyond the control of any interested father. 34 2 The
Court stated that if the opposite were true, then the statutory scheme
"might be thought procedurally inadequate. '343 Because Nebraska's
statute is likely to deny notice to fathers like Jerry Shoecraft, Peter
Stanley, and Abdiel Caban, and because five days provide such a brief
opportunity to a father whose identity and desire is known, the statute carries with it an extraordinarily high risk of erroneous
344
results.
Even if a five-day period were procedurally adequate, in reality
the statute does not always provide a five-day opportunity for filing
the notice of intent. For example, Shoecraft really had only three
days to discover the statute and to file, because a weekend consumed
two days of the statutory period.3 45 In practice, the statute rarely
provides an unwed father with five days when the state offices are
actually open. Only if his child is born on Sunday of a week with no
holidays would an unwed father actually have five days to file at the
338. See supra notes 41, 44 and accompanying text.
339.
340.
341.
See supra notes 43, 193-94, 202 and accompanying text.
342.
343.
344.
See Shoecraft, No. 391-287, at 14. Regarding the risk of unjust results, the
district court judge wrote:
If we acknowledge and recognize the reality of the increased attachment once
the child is born, the potential for abuse is obvious. A few days delay in informing the father of the birth, misinformation that might be given him by
the mother or an overly zealous agency determined to have a voice in placement of the child, the inclusion of a weekend all demonstrate how unrealistic
the five day period is particularly when one recognizes that Nebraska provides
no other relief for the father in paternity actions.
Id.
345.
[Vol. 20
state office.3 4 6 This operational feature of the five-day statute of lim-
itations exacerbates an already high degree of risk of an unjust
outcome.
Given the statute's high probability of an unwarranted termination of parental rights, the next step in the procedural due process
balancing test is to evaluate the probable value of additional procedural safeguards. 347 In Shoecraft's case, additional or substitute procedural safeguards would have been very valuable in protecting
Shoecraft's and Justin Michael's interests in their father-son relationship. Additional procedural safeguards could have easily assured
Shoecraft of a statutory right to object to the adoption and of a right
to be heard regarding his fitness as a parent and the best interest of
his son. Jerry Shoecraft's identity and location were known. 348 His
349
interest in his son and his desire to have custody were also known.
Rather than providing him with an opportunity to object to his son's
adoption and to be heard, the Nebraska statute presumed that
Shoecraft was unfit, as he failed to file within five days. 350 In
Shoecraft's case and in other cases in which the father's identity and
whereabouts are known, requiring the fathers' consent to adoption or
providing them with actual notice and an opportunity to be heard
would be perfectly effective and invaluable in protecting their interests and the interests of their children. Either a consent requirement
or a prompt hearing in these cases would not unduly "complicate the
adoption process, threaten the privacy interest of unwed mothers,
create the risk of unnecessary controversy, [or] impair the desired finality of adoption decrees." 351
The final step in the procedural due process analysis is to evaluate the state's interest and the burden that additional procedural
safeguards would impose on that interest. 352 Granted, the state has a
legitimate interest in the welfare of marital and non-marital children. 35 3 In Caban, the United States Supreme Court stated that pro346. See supra note 252.
351. Lehr v. Robertson, 463 U.S. 248, 264 (1983). At the judiciary committee's hearing on Legislative Bill 224, Mr. Harris Van Ort, Director of the Nebraska Children's
Home Society, testified that during 1974 members of the Nebraska Adoptive Agencies
Association placed approximately three hundred children for adoption. Hearing,
supra note 238, at 10. Speaking of these children and their natural fathers, he testified
that in seventy-five percent of the cases there is no difficulty in identifying the child's
father. In an additional ten percent of the cases, the father's identiy is known, and
only his whereabouts are unknown. Id.
353. Little v. Streater, 452 U.S. 1, 14 (1981) (unanimous decision).
1987]
PARENTAL RIGHTS
viding for the well-being of non-marital children was an "important"
state interest,3 54 and that the state "shares the parents' interests in
an accurate and just decision. 3 5 5 Also, "[t]he establishment of
prompt efficacious procedures to achieve legitimate state ends is a
proper state interest worthy of cognizance in constitutional adjudication."35 However, state procedures should not "needlessly risk running roughshod over the important interests of both parent and
child. '357 Consequently, the Supreme Court has noted that "the incremental costs of offering unwed fathers an opportunity for individualized hearings on fitness appears to be minimal. If unwed fathers,
in the main, do not care about the disposition of their children, they
358
will not appear to demand hearings."
Upon the weighing of the three elements of the due process balancing test, the scale of justice tips in favor of Shoecraft.3 59 Assessment of each factor indicates that Shoecraft did not receive the
process that he was constitutionally due. His and Justin Michael's interests were "commanding" and "substantial. '360 The risk of erroneously presuming that he was an unfit father was extraordinarily
high.361 The additional procedural safeguard of providing him a statutory right to object to the adoption, and to be heard in regard to his
fitness as a parent and on his son's best interest would have eliminated the risk of error. 362 While the state of Nebraska's interest is
"important," the state would have been only minimally burdened by
requiring Shoecraft's consent or providing Shoecraft with actual notice and an individual hearing. 363 The Nebraska Supreme Court
should have concluded that the five-day statute of limitations denied
364
Jerry Shoecraft due process of law.
354. Caban v. Mohammed, 441 U.S. 380, 391 (1979).
355. Lassiter v. Department of Social Serv., 452 U.S. 18, 27 (1981).
356. See supra note 85 and accompanying text. The United States Supreme Court
has also stated: "We must conclude that the state's monetary interest 'is hardly significant enough to overcome private interests as important as those here.'" Little, 452
U.S. at 15-16 (quoting Lassiter, 452 U.S. at 28).
357. Stanley v. Illinois, 405 U.S 645, 657 (1972).
358. Id. at 657 n.9.
360. Stanley v. Illinois, 405 U.S. 645, 652 (1972). The Stanley Court stated that "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.'" Id. at 651 (quoting Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J., concurring).
364. See Shoecrqft, No. 391-287, at 14. As the district court judge stated: "This
court recognizes the state's interest in providing for the well-being of illegitimate children and facilitating the adoption process. However, these goals, important as they
[Vol. 20
In his dissenting opinion, Chief Justice Krivosha concluded that
the five-day limitation violated the tenets of due process. 3 65 He determined that section 43-104.02 of the Nebraska Revised Statutes did
not "automatically deny the father the right to notice and hearing"
before terminating his parental rights. 366 Nevertheless, he found
that the statute was enacted "to accomplish a similar end" and was
too "narrow [and] limited" to provide due process.3 67 Regarding the
five-day limitation, Chief Justice Krivosha wrote:
For a host of reasons, one may intend to acknowledge paternity, pay the hospital bills, hand out cigars, and tell the
world of the birth of a child, and yet, unless the individual
can find the form specifically prescribed by the Department
of Social Services and cause that form to be filed, presumably in Lincoln, within five days after birth, if the mother
unilaterally chooses to place the child for adoption, the father is forever precluded from making any claim to the
child.
... I believe that setting a five-day limit should be recognized by anyone as being too short. We even permit certain buyers of goods three days in which to rescind a
3 68
purchase order.
EQUAL PROTECTION: SHOECRAFT WAS SIMILARLY SITUATED
The final question facing the Nebraska Supreme Court was
whether the Nebraska statute that terminated Shoecraft's parental
rights denied him equal protection of the law based upon his gender
3 69
and upon his lack of a marital relationship with his son's mother.
Shoecraft contended that because unwed fathers receive substantially
different treatment from other Nebraska parents, including unwed
mothers and divorced and separated fathers, Nebraska's statutory
scheme violated the equal protection clause of the fourteenth
370
amendment.
The district court judge found that the gender-based distinctions
drawn between unwed mothers and unwed fathers by section 43104.02 violated the equal protection clause of the fourteenth amendment.31 1 The district court held that the state's objective of
are, may not be accomplished by arbitrary procedures which violate Constitutional
principles." Id.
365. Shoecrft, 222 Neb. at 580, 385 N.W.2d at 453.
366. Id. at 583, 385 N.W.2d at 454.
367. Id.
368. Id. at 583-84, 385 N.W.2d at 454.
369. Shoecrft, 222 Neb. at 578, 385 N.W.2d at 451.
371. Shoecrtft, No. 391-287, at 19.
1987]
PARENTAL RIGHTS
"facilitat[ing] the placement of illegitimate children for adoption by
alleviating the need to obtain the father's consent in most cases and
to avoid the necessity of hearings" was inconsistent with the equal
protection clause.3 7 2 Furthermore, the gender-based classifications
did not bear a "substantial relationship to the asserted interest of the
State of Nebraska. '373 Therefore, the five-day limitation was
37 4
unconstitutional.
The Nebraska Supreme Court reversed the district court and
found that Jerry Shoecraft was provided equal protection of the
law.375 In analyzing the equal protection issue, the majority applied a
"strict scrutiny" test.3 7 6 The court stated that "[t]he end the legislature seeks to effectuate must be a compelling state interest, and the
means employed in the statute must be such that no less restrictive
alternative exists."377 The majority chose the test applicable to
either a "fundamental right" or a "suspect classification. 37 8 The
court observed that the disparate treatment of men and women
3 79
under this statute demanded treatment as a suspect classification.
First, the court found that the state had two compelling inter38 0
ests.
The first compelling interest was "the well-being of all children, whether born in or out of wedlock, and of their proper nurture
s
and care. 3 81
The second compelling interest was "the transfer of
children by relinquishment from unwed mothers and the adoption of
those children." 38 2 The court then identified the means the legislature had chosen for achieving these compelling interests. 38 3 The
means consisted of a statutory scheme that "requires the father of a
child born out of wedlock to declare himself as such within [five]
days after the birth of the child and to assume the financial obliga'384
tion of that status.
Next, the court proceeded to identify a second tier of legislative
"ends. ' 385 These "ends" consisted of the following: (1) the rapid determination of parental rights, (2) the rapid adoption of children of
unwed couples, (3) certainty that prospective adoptive parents will
372.
373.
374.
375.
376.
377.
378.
379.
380.
381.
382.
383.
384.
385.
Id., at 18. See supra note 170 and accompanying text.
Shoecraft, No. 391-287, at 19.
Id.
Shoecraft, 222 Neb. at 580, 385 N.W.2d at 452-53.
Id. at 577, 385 N.W.2d at 451.
Id. (quoting State v. Michalski, 221 Neb. 380, 385, 377 N.W.2d 510, 515 (1985)).
Id.
Id.
Id.
Id.
Id. See supra notes 175-77 and accompanying text.
Shoecraft, 222 Neb.at 578, 385 N.W.2d at 451.
Id.
Id. at 579. 385 N.W.2d at 452.
[Vol. 20
not have to surrender custody to an unwed father, and (4) certainty
that the unwed mother may make the adoption "decision alone ...
[without] awaiting either the outcome of a judicial proceeding... or
the decision of the amorous Hamlet. 3 8s 6 The court found that the
legislature accomplished these "ends" by enacting the adoption con38 7
sent statute.
Last, the court noted that Shoecraft had provided no financial
support for the child or the mother. 38 8 He had not "lived with the
child and nurtured and supported it."38 9 Quoting Quilloin, the court
then concluded that Shoecraft's rights were "readily distinguishable
from those of a separated or divorced father, and [the court] accordingly believe[d] that the state could permissibly give [him] less veto
authority than it provides to a married father. 3 90 The court concluded that "[s]tatutes of limitations bar evenly [all] claims," and that
a five-day limitation was not unconstitutional as applied to Jerry
Shoecraft.3 91
In analyzing the court's opinion, the first issue that arises is
whether the court selected and applied the appropriate standard for
reviewing the statutory classification. 392 Upon examining a statute
that classifies and consequently provides individuals disparate treatment under the law, the court may choose one of three basic equal
protection tests: strict scrutiny, intermediate scrutiny, and rational
relationship.3 93 Whether the Shoecraft court's selection of the strict
scrutiny test was in accordance with judicial precedent is questionable. In previous cases in which the United States Supreme Court has
reviewed laws that discriminated among individuals on the basis of
gender, the Court has applied the intermediate scrutiny standard of
review.3 94 For example, in Caban, the Supreme Court applied intermediate scrutiny to an adoption statute that discriminated between
unwed parents on the basis of gender.395 This test was repeated in
Lehr, when the Supreme Court stated that a statute "may not subject
men and women to disparate treatment when there is no substantial
'396
relation between the disparity and an important state purpose.
386. Id.
387. Id. at 580, 385 N.W.2d at 452.
388. Id.
389. Id.
390. Id. (quoting Quilloin v. Walcott, 434 U.S. 246, 256 (1978)).
391. Id.
394. See Lehr, 463 U.S. at 265-66; Caban, 441 U.S. at 388; Craig v. Boren, 429 U.S.
190, 197 (1976).
396. Lehr, 463 U.S. at 266 (citing Craig v. Boren, 429 U.S. 190, 197-99 (1976); Reed v.
Reed, 404 U.S. 71, 76 (1971)).
PARENTAL RIGHTS
1987]
Similarly, in cases in which the law distributes benefits and burdens
according to whether a person was born in or out of wedlock, the
Supreme Court has applied an elevated version of the rational relaapplied a standard aptionship test.3 97 The Court, however, has not
3 98
scrutiny.
strict
of
test
rigorous
the
proaching
The only justification for the Nebraska Supreme Court's selection of the strict scrutiny test lies in the notion that the Nebraska
statute classified unwed fathers in "terms of their ability to exercise
a fundamental right. '3 99 While this is a persuasive justification, the
United States Supreme Court has not yet employed this standard in
judging the constitutionality of other adoption statutory schemes that
have impinged on an unwed father's right to a relationship with his
non-marital child.
The next difficulty in the Nebraska Supreme Court's selection of
the strict scrutiny standard lies in the court's application of that standard. Upon examining the state of Nebraska's interest in the field of
adoption, the court identified two sets of legislative interests or
ends.40 0 The first set of interests was composed of the state's interests in the well-being of children and in the adoption of non-marital
children "by relinquishment from unwed mothers. '40 1 Both of these
interests were identified as "compelling" interests, but the court did
not use them in the remaining steps of the equal protection analysis.40 2 Instead, the court identified a second set of state interests
composed of four legislative objectives that related to the state's interest in adoption "by relinquishment from unwed mothers. ' 40 3 The
court did not identify any of the second-tier objectives as "compelling"; however, the court focused its analysis on them. 40 4 First, this
unconventional approach clouds the logic of the court's analysis and
emasculates the vitality of the strict scrutiny standard. Second, by
defining the state's interest with emphasis on "relinquishment by unwed mothers, '40 5 the court predestinated its ultimate conclusion.
Based on United States Supreme Court opinions, the wisdom of
the Nebraska Supreme Court's characterization of the first set of
state interests as "compelling" is questionable. While the United
States Supreme Court has identified state interest in the welfare of
397.
See supra note 170.
400. Shoecraft, 222 Neb. at 577-79, 385 N.W.2d at 451-52.
401. Id. at 577, 385 N.W.2d at 451.
402. Id.
404. Shoecraft, 222 Neb. at 577-80, 385 N.W.2d at 451-52.
[Vol. 20
non-marital children as "legitimate" 40 6 and "important," 40 7 the Court
has not identified them as "compelling" in any of the four opinions it
408
has rendered regarding the custody and adoption of these children.
On the contrary, in Stanley, the United States Supreme Court emphasized the concept of fault or neglect as a precursor to the rise of a
legitimate state interest in providing proper care for non-marital children. 40 9 In that case, the United States Supreme Court stated that
"[tjhe State's interest in caring for Stanley's children is de minimus
if Stanley is shown to be a fit father. ' 410 Accordingly, when parents
do not want their child or when parents are adjudicated as unfit, the
state has an "important" interest in providing for the child's welfare
and adoption. 411 However, when one or both parents desires to nurture a child and when the parents are fit, the state lacks an impor4 12
tant reason for intervening in the parent-child relationship.
Another difficulty with the Nebraska Supreme Court's analysis
of the equal protection issue is the definition that the court gave to
the legislature's "means" for achieving the state's ends. 413 The court
stated that the means consisted of a statutory scheme that "requires
the father of a child born out of wedlock to declare himself as such
within [five] days after the birth of the child and to assume the financial obligation of that status. '414 While it is true that section 43104.03 requires an unwed father to acknowledge his liability for his
child's financial support and his lover's pregnancy-related medical
expenses, it does not require that any money actually change hands
to secure the father's paternity rights. 415 However, the court's opinion seems to emphasize the importance of actual financial support to
secure an unwed father's paternity rights. 416 The court repeats that
Shoecraft "did not pay any expenses, '4 17 did not make "any financial
contribution, '418 did not exhibit financial responsibility,4 19 and did
406. Stanley, 405 U.S. at 652.
407. Caban, 441 U.S. at 391.
408. See Lehr, 463 U.S. at 265-66; Quilloin, 434 U.S. at 246-56. See also supra notes
85, 172 and accompanying text.
409. Stanley, 405 U.S. at 657.
410. Id. at 657-58.
412. In Stanley, the United States Supreme Court stated: "We observe that the
State registers no gain towards its declared goals when it separates children from the
custody of fit parents. Indeed, if Stanley is a fit father, the State spites its own articulated goals when it needlessly separates him from his family." Stanley, 405 U.S. at 65253.
414. Id.
415.
NEB. REV. STAT. § 42-104.03 (REIssuE 1984).
416. Shoecroft, 222 Neb. at 578, 385 N.W.2d at 451.
417. Id. at 576, 385 N.W.2d at 450.
418. Id. at 578, 385 N.W.2d at 451.
1987]
PARENTAL RIGHTS
not support Justin Michael. 420
The court's emphasis on actual payment of expenses amounted
to a court-imposed burden greater than the statutory requirement
that Shoecraft acknowledge liability. 421 That Shoecraft had acknowledged liability by signing the notice of intent to claim paternity was
not addressed by the court. 422 By emphasizing that no money actually changed hands and that Shoecraft had not lived with his newborn son, the court satisfied itself that Shoecraft's rights were
"readily distinguishable from those of a separated or divorced father."'423 Consequently, the court concluded that the legislature
could classify and treat unwed fathers such as Shoecraft differently
from other fathers. 424 Hence, the classification subjecting unwed fathers, but not other fathers, to a five-day statute of limitations did
425
not violate the equal protection clause according to the court.
The weaknesses in the court's reasoning are threefold. First,
Jerry Shoecraft never had a chance to live with his son because Justin Michael was hospitalized from birth until Sheri Davis surrendered him to Catholic Social Services when he was just three days
old. 426 Second, the statute does not require any money to change
hands, but only requires that liability for support and expenses be acknowledged. 427 Because the court's two reasons for distinguishing
Shoecraft from other fathers are invalid, the only other justification
for classifying Shoecraft differently was Shoecraft's lack of a past or
then present marital relationship with Sheri Davis. Past or present
marital status standing alone hardly seems relevant to the ability of a
father to raise his child or to the state's interest in providing for the
428
welfare of children.
419.
420.
Id. at 580, 385 N.W.2d at 452.
Id.
421.
Id. at 585, 385 N.W.2d at 455. See NEB. REV. STAT. § 43-104.03 (Reissue 1984).
Chief Justice Krivosha also criticized the majority's definition of the legislative means.
He noted that the majority had observed that Shoecraft had "exhibited no financial
responsibility" for Sheri Davis and Justin Michael. In response to this, the Chief Justice stated: "The act under attack does not require that the father provide any support, either financially or emotionally, in order to acquire rights." Shoecraft, 222 Neb.
at 585, 385 N.W.2d at 455.
422. Shoecrqft, 222 Neb. at 575, 385 N.W.2d at 450.
423. Id. at 580, 385 N.W.2d at 452.
424. Id.
425. Id.
427. NEB. REV. STAT. § 43-104.03 (REISSUE 1984).
428. See supra note 170 and accompanying text. In Quilloin, the United States
Supreme Court held that a "State was not foreclosed from recognizing [the] difference
in the extent of commitment [a father has] to the welfare of a child." Quilloin v.
Walcott, 434 U.S. 246, 256 (1978) (emphasis added) (unanimous decision) . In Stanley,
the Court stated: "'To say tha the test of equal protection should be the "legal" rather
than the biological relationship is to avoid the issue. For the Equal Protection Clause
[Vol. 20
The most important problem with the Nebraska Supreme
Court's equal protection analysis is the court's failure to assess
whether a "less" or "least" restrictive alternative means would have
effectuated the legislature's ends.429 Under the "strict scrutiny" test
applied by the Nebraska Supreme Court, the majority should have
examined whether the five-day statute of limitations for all unwed
fathers was the "least" restrictive means available for achieving the
legislature's ends. 430 Under the more appropriate "intermediate
scrutiny" test, the court should have determined whether the genderbased classification was a "less" restrictive alternative.43 1 If the court
had completed this step of its analysis, the court then would have
forced itself to consider alternative statutory schemes based on other
distinguishing criteria between unwed parents rather than schemes
based solely on gender. 432 Applying either the "less" or "least" restrictive alternative standard would have compelled the court to consider whether in fact unwed parents, such as Sheri Davis and Jerry
Shoecraft, are similarly situated and, consequently, whether they
may be treated differently under the law. 433 In this regard, the
United States Supreme Court has "held that these [adoption] statutes
may not constitutionally be applied in that class of cases where the
mother and father are in fact similarly situated with regard to their
'434
relationship with the child.
In Shoecraft's case there is no apparent justification for distinguishing his situation from that of Sheri Davis. Both were simply unwed parents of a newborn infant. The identity and whereabouts of
both were known. 435 However, one of them chose to nurture and
raise their infant son, while the other did not. 436 Rather than distributing or terminating parental rights based on this or other relevant
43 7
criteria, the Nebraska statute considers only the parents' gender.
The statute gave Davis the absolute right to consent to or to prohibit
necessarily limits the authority of a State to draw such "legal" lines as it chooses.' "
Stanley, 405 U.S. at 652 (quoting Glona v. American Guarantee Co., 391 U.S. 73, 75-76
(1968)). Also, in Stanley, the Court noted: "We are not aware of any sociological data
justifying the assumption that an illegitimate child reared by his natural father is less
likely to receive a proper upbringing than one reared by his natural father who was at
one time married to his mother, or that the stigma of illegitimacy is so pervasive it
requires adoption by strangers .. " Id. at 654 n.7 (quoting In re Mark T., 8 Mich. App.
122, 146, 154 N.W.2d 27, 39 (1967)).
429.
See supra note 170.
430.
431.
432.
433.
434.
435.
436.
437.
See supra note 170.
See supra note 170.
See supra note 170.
See supra note 170.
Lehr, 463 U.S. at 267.
See supra note 268. See also NEB. REV. STAT. § 43-104 (Reissue 1984).
1987]
PARENTAL RIGHTS
the adoption of their son, but the statute did not provide Shoecraft
with a fully equivalent right.438 Certainly providing Jerry Shoecraft
with a statutory right equivalent to that of Sheri Davis would have
been a less restrictive alternative. Likewise, any statutory scheme
that would provide a longer statute of limitations, a consent requirement for some unwed fathers, or actual notice and an opportunity to
be heard would also have been a less restrictive alternative. The majority's analysis did not consider these available alternatives.
While it is irrefutable that biological differences exist between
men and women, those differences are seldom relevant in terms of
promoting a legitimate or important governmental end. 439 Thus,
while biology is absolutely critical in determining which parent will
deliver a child, it should not be relevant in determining which parent
will rear a child or whether the child will be reared by strangers. 440
Subjecting unwed fathers to a five-day limitation presumes that those
who inadvertently do not file within five days are unfit and uncaring
parents. Unwed mothers, on the other hand, are not subject to any
similar statutory burden.44 1 Unwed mothers are presumed to be fit
and caring parents, and their children may not be adopted without
their consent or without an individualized determination that they
are unfit.4 4 2 The Nebraska adoption consent statute sweeps broadly
44 3
by classifying unwed parents solely on the basis of their gender.
By treating all unwed fathers alike and by distinguishing between
them and unwed mothers, the statute is "another example of overbroad generalization" 44 4 based solely on gender.445 The gender of a
parent is not substantially related to the state's interest in the wellbeing of all children or to the adoption of children. Nor is a genderbased statute the "least" or "less" restrictive means for achieving
44
those governmental ends.
6
438.
439.
NEB. REV. STAT. § 43-104 (Reissue 1984).
J. NowAK, supra note 51, at 587.
440. See NEB. REV. STAT. § 42-364(2) (Cum. Supp. 1986). Subsection 42-364(2)
provides:
In determining with which of the parents the children or any of them shall
remain, the court shall not give preference to either parent based on the sex
of the parent, and no presumption shall exist that either parent is more fit to
have custody of the children than the other.
See generally L. TRIBE, CONSTITUTIONAL CHOICES 243 (1985) (stating that "[t]he state
makes women and men unequal before the law by automatically translating biology
into social destiny.").
441. NEB. REV. STAT. § 43-104 (CuM Supp. 1986). See supra note 266.
442.
See NEB. REV. STAT. § 43-104 (Cur Supp. 1986).
443. See id.
444. Caban, 441 U.S. at 394.
446. See supra notes 51, 170 and accompanying text. In Caban, the United States
Supreme Court noted "some alternatives to the gender-based distinctions of [the New
[Vol. 20
Like the district court judge, Chief Justice Krivosha in his dissent found that the statute denied unwed fathers such as Shoecraft
equal protection of the law. 447 The Chief Justice based his finding on
the fact that the statute singled unwed fathers out for treatment substantially different than that which was accorded to unwed
mothers." 8 In his view, the decision of the District Court of Lancas449
ter County should have been affirmed.
The Chief Justice's equal protection analysis included the judicial test of "intermediate scrutiny": "Gender-based distinctions 'must
serve important governmental objectives and must be substantially
related to achievement of those objectives' in order to withstand judicial scrutiny under the Equal Protection Clause.1450 Citing Caban v.
Mohammed,4 51 Chief Justice Krivosha determined that the "'State's
interest in providing for the well-being of illegitimate children [was]
an important one ....
[and was] desirable.' ",452 The Chief Justice
also found, however, that the "distinction in [section 43-104.02] between unmarried mothers and unmarried fathers [did] not bear a
substantial relation to sthe State's interest in providing adoptive
homes for its illegitimate children. '453 Thus, the means the legislature had chosen to achieve its important governmental objectives
were constitutionally infirm under gender-based, equal protection
4 54
analysis.
York adoption statute] only to emphasize that the state interest asserted in support of
the statutory classification could be protected through numerous other mechanisms
more closely attuned to those interests." Caban, 441 U.S. at 393 n.13.
447. Shoecrft, 222 Neb. at 580, 385 N.W.2d at 453 (Krivosha, C.J., dissenting).
448. Id.
449. Id. at 585, 385 N.W.2d at 455 (Krivosha, C.J., dissenting).
450. Id. at 581, 385 N.W.2d at 453 (Krivosha, C.J., dissenting) (quoting Caban, 441
U.S. at 388).
451. 441 U.S. 380, 398 (1979).
452. Shoecroft, 222 Neb. at 581, 385 N.W.2d at 453 (quoting Caban, 441 U.S. at 391).
453. Id. at 581-82, 385 N.W.2d at 453 (quoting Caban, 441 U.S. at 391-92).
454. Id. at 583, 385 N.W.2d at 454. In addition to finding that the five-day limitation
violated equal protection and due process, Chief Justice Krivosha also found that the
effect of the five-day limit was "wholly inconsistent" with other Nebraska statutes. Id.
at 584, 385 N.W.2d at 454-55. In particular, he pointed to Nebraska statutes which provide for establishing paternity and financial support of non-marital children. Id. For
example, the applicable Nebraska Revised Statute provides:
A person may state in writing that he is the father of a child or perform acts,
such as furnishing of support, which reasonably indicate that he considers
himself to be the father of such child, and in such case he shall be considered
to have acknowledged the paternity of such child.
NEB. REV. STAT. § 13-109 (1983) (currently codified at NEB. REV. STAT. § 43-1409 (Reissue 1984)), quoted in Shoecroft, 222 Neb. at 584, 385 N.W.2d at 455. Once the unwed
father has acknowledged his paternity or been determined to be the father by judicial
proceedings, the state then requires him to be liable for the child's financial support
just as a married or divorced father. Id. Unlike a married or divorced father, however,
an unwed father has no right under Nebraska statutes to object to the adoption of his
1987]
PARENTAL RIGHTS
RESOLUTION OF SHOECRAFT
There are several possible reasons why, the Nebraska Supreme
Court found that the five-day statute of limitations did not violate
Shoecraft's constitutional rights. One explanation, which neither the
majority nor the dissent articulated, is so powerful that it cannot be
ignored. That explanation is the development of warm familial
bonds between Justin Michael and his adoptive parents. 455 By the
time the case was argued in the Nebraska Supreme Court, Justin
Michael was eleven months old and had lived with Mary and John
Doe, his adoptive parents, since he was three days old.45 6 Upholding
the district court's decision and finding the five-day limitation unconstitutional would have necessitated further litigation to settle the custody question.457 The majority may have felt that any further
protraction of that issue was unconscionable and, in the final analysis, a change of custody could not have been in Justin Michael's best
458
interest.
Due to the passage of time and the potential, but unlikely, disruption of Justin Michael's de facto family relationship, 459 the result
the majority effectuated may have been the best ultimate result for
Justin Michael and his adoptive family. However, the same ultimate
result could have been reached by striking down the five-day requirement, treating Jerry Shoecraft's notice of intent as though it had
been timely filed, and remanding the case for determination of the
custody question in accordance with section 43-104.06. Section 43104.06 mandates that a trial court make three positive findings before
awarding custody to an unwed father: (1) the father is a fit person,
(2) the father is able to properly care for the child, and (3) the460child's
best interest will be served by granting custody to the father.
While a trial court may have made positive findings on the first
child unless he also filed a notice of intent to claim paternity within five days of the
child's birth. Id. Regarding these statutes, the Chief Justice wrote:
Even though the mother may determine not to relinquish the child for a period of [four] years and even though the father may acknowledge in writing,
though not on the proper form, that he is the father, and even though he may
provide support, nevertheless if the magic writing has not occurred on the
prescribed form and been properly filed within [five] days of birth, all of the
mother's rights continue, but the father's rights are terminated.
Shoec'qft, 222 Neb. at 584, 385 N.W.2d at 454.
458. See supra note 136. Experts in child psychology write that an infant quickly
"latches onto" the adult who cares for it. Removing the infant from its foster home
after several months may cause emotional scarring that will not heal. J. GOLDSTEIN,
supra note 136, at 40-41.
459. Shoecrqft, 222 Neb. at 576, 385 N.W.2d at 450.
460. NEB. REV. STAT. § 43-104.06 (Cure. Supp. 1986).
[Vol. 20
two criteria, it is unlikely that a court could have found that a change
in custody would have been in Justin Michael's best interest due to
his eleven-month relationship with his adoptive parents. 461 Resolution of the case in this manner would have given Jerry Shoecraft a
hollow and bitter victory, but at least it would have prompted the
legislature to rid the statute books of the five-day limitation.
CONCLUSION
As a result of the Nebraska Supreme Court's holding in
Shoecraft, an unwed father is still subject to the five-day statute of
limitations when his lover offers their child for adoption. If he unknowingly fails to file a notice of intent to claim paternity within five
days of the birth of his child, no court will hear his objections to a
subsequent adoption. Even though Jerry Shoecraft filed his notice of
intent to claim paternity five days prior to Sheri Davis' signing of the
consent to adoption, he had no right to be heard regarding Justin
Michael's future.
The foregoing analysis of the court's decision in Shoecraft indicates that the outcome of the case should have been different. The
court's decision does not appear to be consistent with the holding or
spirit of the United States Supreme Court's previous opinions concerning unwed fathers' rights to form and maintain personal relationships with their non-marital children. Moreover, foregoing
analysis concludes that the five-day statute of limitations did not adequately protect Jerry Shoecraft's opportunity to form a personal relationship with Justin Michael and, consequently, the statute operated
to deny Shoecraft due process and equal protection of the law.
Because the court's decision in Shoecraft upheld the five-day limitation, it is suggested that now is the time for the legislature to reexamine the Nebraska adoption statute.462 A blanket five-day statute
of limitations applicable to all unwed fathers reflects outmoded notions about men and presumes that they are uncaring and unfit parents if they unknowingly fail to file the required notice. Every
unwed father's right or opportunity to raise his child and to object to
462. A reexamination of the five-day statute of limitations could begin by reviewing the adoption statutes in other states. See 1985 Kan. Sess. Laws 555, 561 (providing
for inquiry by the court and notice to possible father). See also G. DOUTHWAITE, SUpra
note 1, at 151 (stating that "[p]erhaps, then, the ideal statute would be one which vests
the court with a discretion to determine whether the situation is such that the consent
of the putative father is a prerequisite."; Barron, supra note 89, at 546 (stating that
"(t]he question of whether notice by publication should be required or dispensed with
should, therefore, be left to the sound discretion of the court which, in a hearing, has
inquired into the matter.").
1987]
PARENTAL RIGHTS
699
a proposed adoption should not be dependent on whether he filed a
certain form at a certain office within a certain number of days.
Betty J. Stahl -
'88

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