Amicus Brief — Caban v. Mohammed

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Supreme Court of the United States

OcroBeR TrerM, 1977

77-6431

ABDIEL CABAN,

Appellant,

-——against—

Kazim MowamMnMip and Maria Mouammin,

Appellees.

APPEAL FROM THE JUDGMENT AND ORDER OF THE

COURT OF APPEALS OF THE STATE OF NEW YORK

Soreme Court, 0)

t U,

FILE |

JUN 80 1978

a —_———

HAFI eanay

if :

IN THE <i

BRIEF AS AMICUS

CURIAE AND BRIEF AMICUS CURIAE OF

COMMUNITY ACTION FOR LEGAL SERVICES, INC,

CaTHER...E P, MitcHeny, Esq.

ComMMUNITY ACTION FOR

LEGAL SERVICES, INc.

LovisE Gruner Gans, of Counsel

335 Broadway

New York, New York 10013

(212) 431-7200

Attorneys for Amicus Curiae

K, JR., CLERK

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

TABLE OF AUTHORITIES

INTEREST OF AMICUS

STATEMENT OF THE CASE

QUESTIONS PRESENTED

INTRODUCTION AND SUMMARY OF

ARGUMENT

POINT I

THE ADOPTION OF APPELLANT'S

CHILDREN PURSUANT TO NEW YORK

DOMESTIC RELATIONS LAW §111l,

ON ITS FACE AND AS APPLIED,

DENIED HIM DUE PROCESS AND

EQUAL PROTECTION OF THE LAWS

CONCLUSION

MOTION FOR LEAVE TO FILE

BRIEF AS AMICUS CURIAE

Community Action for Legal Services,

Inc. ("CALS") respectfully moves this

Court pursuant to Supreme Court Rule

42(3) for leave to file the attached

brief as amicus curiae.

The attorneys for all the parties to

this appeal have been requested to consent

to the filing of this brief and Counsel

for both Appellant and Appellees have

granted their consent.*

Community Action for Legal Services is

the largest civil legal services program

in the nation. Funded by the National

Legal Services Corporation as successor to

*The letter(s) of consent have been filed

with the Clerk of this Court. However, as

of this moment the Assistant Attorney General

on this case is away from his office and it

has not been possible to reach him in order

to request his consent.

the United States Office of Economic

Opportunity (OEO) legal services program,

CALS provides a full range of civil legal

service to indigent New York City residents

who cannot afford to pay a private attorney.

Representation is provided in such diverse

areas as housing law, the law of pubiic

assistance and other government benefits,

consumer law, employment law, family,

juvenile and education law. CALS has a

full time staff of over 121 attorneys,

based in 21 neighborhood offices, who

provide legal assistance to more than

40,000 persons a year. CALS attorneys

provide representation in ail the trial

courts of New York City, in the State and

Federal Appellate Courts and in this Court.

Approximately 20% of the cases handled

by CALS' neighborhood legal services

offices is in the area of family law.

The case include matters’'of divor:e,

separation, child custody, visitation

and support, child protective pro-

ceedings, foster care review pro-

ceedings, paternity sail

guardianship proceedings, proceedings

for termination of parental rights and

adoption proceedings. Many of CALS

clients are fathers of children born

out of wedlock. Such fathers regularly

seek legal assistance in order to have

their name listed on their child's

birth certificate, to assert claims

for visitation with or custody of their

children, as respondents or petitioners

in paternity and support proceedings, and

as respondents in adoption and other

proceedings for termination of parental

rights. On the basis of their experience

CALS attorneys have extensive knowledge

iii

of the living patterns of poor families

and the social and legal problems that

confront them in their familial relation-

ships.

Based upon its' experience, Amicus has

maintained that family members, whether

mothers, fathers, or children should not

be discriminated against and penalized in

their familial relationships solely on the

basis of out of wedlock status or illegitimacy.

The nature of the right of an unmarried

father to oppose the adoption of his children

is obviously of great importance to the many

unved fathers who are CALS clients: Many

are presently facing the loss of their

children under substantially similar

circumstances as those which faced Appellant

Caban.

Accordingly, Amicus wishes to submit its

brief because of its concern about the impact

of this case on its clients and hopefully to

present to the Court an analysis of the

issues which may not otherwise be

presented.

Wherefore, Community Action for Legal

Services request leave to file the

attached brief amicus curiae.

Respectfully submitted,

CATHERINE P. MITCHELL

COMMUNITY ACTION FOR LEGAL

SERVICES, INC.

Louise Gruner Gans,

of Counsel

335 Broadway

New York, New York 10013

(212) 431-7200

Attorneys for Amicus Curiae

TABLE OF AUTHORITIES

IN THE

SUPREME COURT OF THE UNITED STATES Page

OCTOBER TERM 1977 Alsager v. District Court,

406 F. Supp. 10 (Iowa

1975) aff'd. 545 F. 2d

1137 (8th Cir. 1976). 37

No. 77-6431

Anonymous v. Anonymous,

56 Misc. 2d 71l, 289

N.Y.S. 2d 792 (1968) 28

ABDIEL CABAN,

Appellant,

In the Matter of Anonymous,

-against- 79 Misc. 2d 290, 359

KAZIM MOHAMMED and MARIA MOHAMMED, RRs Oe hee See ene "7

. 1) Armstrong v. Manzo, 390

ppeiiees. U.S. 545 (1965) 19,22

People ex rel Blake v.

Charger, 76 Misc. 2d

577, 39L N.¥.S. 24 322 28,43

APPEAL FROM THE JUDGMENT AND

ORDER OF THE COURT OF APPEALS

OF THE STATE OF NEW YORK

Boatright v. Otero, _ Misc.

2d__, 399 N.Y.S. 2d

391 (1977) 28,43

Matter of David A.C.,

43 N.Y. 2d 708, 401

N.Y.S. 2d 208 (1977) 1, 23

BRIEF AMICUS CURIAE OF

COMMUNITY ACTION FOR LEGAL

SERVICES, INC.

Matter of David Andrew C.,

56 A.D. 2d 627, 391

N.Y.S. 2d 846 (1977) 2

Matter of Anthony L "CC"

48 A.D. 2d 415, 370

N.¥.8. 2€ 219 (1975) 30

Table of Authorities (continued)

Carter v. Carter, 58 A.D.

2d 438, 398 N.Y.S. 2d 88 (1977)

Cleveland Board of Education

v. LaFleur, 414 U.S. 632 (1974)

Cornell v. Hartley, 54 Misc.

2d 732, 283 N.Y.S. 2d 318

(1967)

DeBiase v. Scheinberg, 47 A.D.

2d 567, 364 N.Y.S. 2d 34

(1975)

Matter of Orlando F., 401 N.Y.

2d 103, 396 N.Y.S. 2d

64 (1976)

Frontiero v. Richardson, 41l

U.S. 677 (1973)

Matter of Gerald G.G.,

_A.D. 2d__ N.Y.S. 2d

New York Law Journal,

April 28, 1978, wo. 10

Godinez v. Russo, 49 Misc.

2d 66, 266 N.Y.S. 2d

636 (1966)

Herb v. Herb, 8 A.D. 2d 419,

188 N.Y.S. 2d 41

-viii-

Page

17,

18,

28,

TABLE OF AUTHORITIES (continued)

Hotze v. Hotze, 57 A.D. 85, 394

N.Y.S. 2d 753 (1977)

Matter of Carey L. v. Martin L.,

55 A.D. 24 717, 399 N.Y.S. 2d

428 (1977)

Matter of Malpica-Orsini, 36 N.Y.

2d 568 370 N.Y.S. 2d 511 (1975)

appeal dismissed sub nom Orsini

v. Blasi. 423 U.S. 1042 46 L.

Ed 643 (1976)

May v. Anderson, 345 U.S. 528

(1953)

Meyer v. Bebraska, 262 U.S. 390

(1923)

People ex rel Meredith v. Meredith,

272 App. Div. 79, 69 N.Y.S. 2d

462 (1947)

Moore v. East Cleveland, 431 U.S.

494 (1977)

Application of Virginia Norman,

__Misc. 2d_, 205 N.Y.S. 2d

260 (1960)

Pierce v. Yerkovich, 80 Misc. 2d

613, 363 N.Y.S. 2d 413 (1974)

Prince v. Massachusetts, 321 U.S.

158 (1944)

4,15,

18,23,

24,28,

29,31,

41,47

19,22

19,37

19,23

28,43

19,20

TABLE OF AUTHORITIES (continued)

Quilloin v. Walcott, U.S. _,

54 L. Ed. 2d, 511 (1978)

Juan R. v. Necta V., 55 A.D. 2d

33, 389 N.Y.S. 2d 126 (App.

Div. lst Dept. 1976)

Raysor v. Gabbey, 57 A.D. 2d 437,

395, N.Y.S. 2d 290 (1977)

Reed v. Reed, 404 U.S. 71 (1971)

Roe v. Conn., 417 F. Supp. p. 769

(Md. Ala. 1976)

Roe v. Wade, 410 U.S. 113 (1973)

Rothstein v. Lutheran Services

of Wisconsin

Matter of Holly S.S. v. John S.S.

57 A.D. 2d 681, 393 N.Y.S.

2d 821 (1977)

Sims v. Texas Department of Public

Welfare, 438 F. Supp. 1179

(Ed. D. Tex. 1977)

Smith v. Organization of Foster

Families, 431 U.S. 816, 8 (1977)

Stanley v. Illinois, 405 U.S. 645

651 (1972)

28,43

20,21,

34,35

14,17,

19,20,

29,37

TABLE OF AUTHORITIES (continued)

Stanton v. Stanton, 421 U.S. 7

(1975)

Stone v. Chip, 68 Misc. 2d 134,

326 N.Y.S. 2d 520 (1971)

Tessler v. Siegel, 59 App. Div.

2d 846 399 N.Y.S. 2d 218

(App. Div., lst Dept. 1977)

Matter of Bradley U., 55 A.D. 2d

722, 389 N.Y.S. 2d 431 (1976)

State ex rel. Watts v. Watts

__ Misc. 2d__, 350 N.Y.S. 2d

285 (1973)

Weinberger v. Weisenfeld, 420

U.S. 636 (1975)

Weber v. Aetna Casualty and

Surety Co., 406 U.S. 164,

169 (1972)

Wisconsin v. Yoder, 406 U.S.

205 (1972)

Loretta Z. v. Clinton A., 36

320 N.Y.S. 2d 997 (1971)

STATUTES

28 United States Code

§1275 (2)

New York Domestic Relations

Law

§ 32

§11l

§111,Subdivision 2

§111,Subdivision 3

§111,Subdivision4

§lll-a

§112 (6)

§240

New York Family Court Act

§413

§545

§1055

Article 5

Article6, Part l

New York Public Health Law

§4135

New York Social Services

Law

§ 383 (3)

§384

§384-b

§384-b.3 (a)

§384-b.3(b)

§384-b.4

§384-b.5

§384-b.6

-xli-

4,11,12,

14,16,41,

45,48

4,40

3,4,5,

31,40

4,8,16,

29,33,40

5,25

Social Services Law (continued)

§384-b.7

§384-c

§ 392

OTHER AUTHORITIES

Bane, HERE TO STAY:

AMERICAN FAMILIES IN

THE TWENTIETH CENTURY,

Basic Books 1976

Blayden & Stack, INCOME

SUPPORT POLICIES

AND THE FAMILY,

Deadalus, Spring 1977

p. 147

Fast & Cain, THE STEP-PARENT

ROLE: POTENTIAL FOR

DISTURBANCES IN FAMILY

FUNCTIONING, American

Journal of Orthopsychiatry,

April 1976

Freeman, REMODELLING

ADOPTION STATUTES

AFTER STANLEY V.

ILLINOIS, Journal of

Family Law, Vol. 15,

No. 3 University of

Louisville, School of

Law 1976-77

-xiii-

12,

OTHER AUTHORITIES (continued)

Kelly and Wallerstein,

PART-TIME PARENT,

PART-TIME CHILD: VISITING

AFTER DIVORCE, Journal of

Clinical Child Psychology,

Vol. 6 No. 2, Summer 1977

Mnookin, CHILD CUSTODY

ADJUDICATION, 39 Law and

Contemporary Problems,

226, Summer 1975

Rosen, CHILDREN OF DIVORCE,

Journal of Clinical Child

Psychology, Vol. 6, No. 2

(Summer 1977)

Sorosky, Baran, Pannor, THE

ADOPTION TRIANGLE, Anchor

Doubleday, 1978

Wald, STATE INTERVENTION ON

BEHALF OF NEGLECTED CHILDREN,

28 Stanford Law Review

No. 4 p. 623 (April 1976).

WHO SHOULD SUPPORT THE CHILDREN,

Community Council of

Greater New York, 225 Park

Avenue South, New York, NY 10003

-xiv-

Page

OTHER AUTHORITIES (continued)

Yorburg, THE CHANGING

FAMILY, Columbia

University Press, 1973

7ett, Edmonds, Buttrey,

Kaufman, NEW YORK CIVIL

PRACTICE, FAMILY COURT

PROCEEDINGS, Vol. 12B

Matthew Bender, New York 1976

Page

INTEREST OF AMICUS CURIAE

The interest of the amicus curiae

is set forth in the accompanying

motion, supra.

STATEMENT OF THE CASE

This case comes to this Court by

way Of appeal pursuant to 28 U.S.C.

§1275(2) from a judgment of the

New York Court of Appeals, entered

on November 17, 1977 and from two

subsequent judgments and orders of

said Court of Appeals, entered on

January 10, 1978 and February 14,

1978 respectively. The last two

judgments denied a motion for re-

hearing and reargument of that

Court's initial, November 17, 1977

judgment. By its judgment, reported

as Matter of David A.C., 43 N.Y.

the New York Court of Appeals dis-

missed as insubstantial an appeal

-l-

from an order of the Appellate Division

of the Supreme Court of the State of

New York, Second Department. The order

of the Appellate Division reported as

Matter of David Andrew C., 56 A.D. 2d

627, 391 N.Y.S. 2d 846 (1977), had

affirmed the order of the Surrogates

Court of the State of New York for Kings

County which, on or about September 10,

1976,over the objections of Appellant

Abdiel Caban, approved the adoption of

his two children perid and Denise by

the Appellees, Kazim Mohammed and his

wife Maria Mohammed, and simultaneously

disapproved their adoption by Appellant

Abdiel Caban and his wife Nina Caban.

Appellant Abdiel Caban is the unwed

father of the children David and Denise.

-2-

Appellee Maria Mohammed, their mother bore

his children out of wedlock. When the

Surrogate's Court, Kings County approved

the adoption of the children each parent

was legally married to a new partner.

Appellant Abdiel Caban had married one

Nina Caban . Appellee Marie Mohammed

had married Appellee Kazim Mohammed. In

approving the adoption of the children by

their mother and her new husband Kazim

Mohammed and denying their adoption by

appellant, their father, and his new

wife, the Surrogate's Court relied on

the provision of New York Domestic

Relations Law §11l1,* Subdivision 3

*All references are to the statute as it

existed prior to January 1, 1977. 14

McKinneys Consolidated Laws of New York,

Annual Pocket Part for use in 1976 -

1977, p. 51-52; McKinney's 1975

Session Laws of New York, Chapter 704,

$3, p. 2ti17).

-3-

and on the interpretation of that statute

by the New York Court of Appeals in

Matter of Malpica-Orsini, 36 N.Y. 2d

568, 370 N.Y¥.S. 2d 511 (1975) appeal

dismissed sub nom Orsini v. Blasi,

423 U.S. 1042, 46 L. Ed 2d 643 (1976).

Domestic Relations Law §111l prescribes

whose consent is required before a child

may be adopted. Domestic Relations

Law §111, Subdivision 2 provides that in

the case of a child born in wedlock the

consent of the child's parents or surviving

parent is required. However, the required

parental consent may be dispensed with on

the grounds of abandonment and other

species of parental unfitness defined by

Domestic Relations Law §111, Subdivision 4.

In the case of a chiid born out of wedlock

only the consent of the mother is required

by Domestic Relations Law §111, Subdivision 3.

Malpica-Orsini supra had held that the

rights of an unwed father were appropriately

-4-

protected under the Fourteenth Amendment of

the Constitution if he was given notice of

his children's proposed adoption and an

Opportunity to be heard with respect to the

children's "best interest."* The entry of

an order of filiation pursuant to Article 5

of the Family Court Act does not affect an

unwed father's legal position with relation

to the adoption of his children pursuant

to Domestic Relations Law §111, Subdivision 3:

The father in Malpica-Orsini had had his

paternity legally determined.

The following essential facts seem un-

disputed. Appellant Abdiel Caban and

Appellee Maria Mohammed lived together

unmarried for five years - from 1968 through

1973. Their two children David and Denise

were born during this time (David was born

in 1969, Denise in 1971). Appellant Caban's

name appeared on the children's birth

*This requirement was subsequently codified

by Domestic Relations Law §lll-a.

-5-

certificate and the children bore his

name. Appellee Maria Mohammed then

used the name Caban and held herself out

to be Appellant's wife. Neither she nor

the Appellant ever sought a legal

declaration of Appellant's paternity.

However, in the adoption proceeding

below the Surrogate's Court in its opinion

and orders accepted him as the father of

the children.

Until at least the end of 1973 Appellant

Abdiel Caban and Appellee Maria Mohammed

jointly provided a home and supported and

raised their children. The Surrogate found

that both had worked and both had con-

tributed to the support of the children.

(A-28). Early in 1974 Appellee Maria

Mohammed, of her own choice, left Appellant

Caban. Apparently, without warning she moved

out of their apartment and took the children

with her. She married Appellee Kazim

Mohammed in January 1974, but the fact of

the marriage and her whereabouts were not

known to Appellant until 1975. Despite

the separation, Appellant Caban continued

his relationship with his children; until

September 1974 he saw the children and

spent time with them every weekend.

In September, 1974 Appellee Maria

Mohammed sent the children to Puerto Rico,

where they lived with her mother and also

visited and sometimes stayed with their

paternal grandparents, the Cabans. In

November, 1975, Appellant Caban went to

Puerto Rico to visit his children and brought

them back to New York City. He had married

in the interim and wanted to care for the

children in his home. The children lived

with Appellant Caban until January 1976.

During that month, Appellee Maria Mohammed

commenced a custody proceeding against

Appellant Caban. Custody of the children

pendente lite was granted to the Appellee

mother, with visitation to the Appellant

father. However, the custody proceeding was

never tried, for it was rendered moot by the

intervening adoption proceeding which is the

subject of this appeal. Notice of the

adoption proceeding was issued in February,

1976. Until September 1976, when the

adoption order terminating his parental

rights was entered, Appellant Caban continued

to see his children at his home every week.

With the entry of adoption order, Appellant

Caban's relationship to his children came

to an abrupt and complete stop.

In granting the adoption the Surrogate

found neither that Appellant Caban had

abandoned his children nor that he was

not fit to be their father on any of the

other grounds for dispensing with required

parental consent to an adoption, spelled

out by Domestic Relations Law §1ll,

Subdivision 4. Moreover, the opinion of

the Surrogate makes clear that in approving

the adoption he gave no consideration what-

soever to

unfitness

Acting

statutory

Surrogate

hand that

Appellant Caban's fitness or

as a father.

in accordance with New York

authority and case law, the

Court below noted on the one

without the consent of the natural

mother, the putative father has "no

prospect of adopting the child" and on

the other

hand that the primary objective

of allowing a putative father to be heard

in opposition to the adoption by a step-

father married to the natural mother

"is not to determine the degree

of his continued interest in the

child but rather to determine the

best interests of the child. Any

evidence the putative father may

have concerning the solidity of the

marriage and the concern and treatment

of the child in the new family is

particularly relevant."

(Opinion, Surrogate Sobel dated

August 3, 1976, (Appellant's

Appendix p. 28).*

*Hereinafter designated as "A"

-9a-

As to the feelings of the chiidren | Appellant Abdiel Caban argued before

themselves, the Surrogate found that “the the Surrogate'’s Court and on subsequent

children are not old enough to be articulate; appeals that adoption of his children

the oldest is able however to express "love" without his consent solely on the basis

for both his fathers" (A-29). of their mother's consent and consideration

It is clear that the Surrogate evaluated of "the best interest of the child" and

the best interest of Appellant Caban's automatic disapproval of his and his wife's

children solely in terms of the application for adoption on the basis of

fitness of Appellees and gave no consideration the mother's veto denied him due process

to the character of Appellant Caban or the and equal protection of the laws under

relationship between him and his children. the Fourteenth Amendment. Probable

Thus the Surrogate concluded jurisdiction was noted by this Court on

"There is absolutely no evidence, May 15, 1978.

credible or otherwise, that the

new marriage of the natural mother QUESTIONS PRESENTED

is other than solid or permanent;

and no evidence whatsoever that the 1. Whether New York Domestic Relations

children are not well cared for and

healthy. Nothing therefore justifies Law §11l, (McKinney 1976) on its face and as

a denial of the petition other than

that the putative father professes applied violates the Due Process Clause of

that he loves the children and

fervently desires that they continue the Fourteenth Amendment in that it permits

to bear his name. This is not

enough, however sincerely motivated." the adoption of children without requiring

(A-30).

the consent of their unwed father without

-10- regard to his fitness but solely on the

basis of a finding that the adoption is

-ll-e

"in the best interest of the child. " role and rights of fathers separated

2. Whether New York's Domeatic from their children as a result of

Relations Law §111, (McKinneys 1976) on family breakup has been the subject of

its face as applied violates the eaual growing concern and comment as fathers

protection clause of the Fourteenth find themselves pushed out of their

. ’ . c

Amendment in that it permits the adoption children’s lives. The problem of

of children without the consent of their | a continued relationship with their

unwed father but prohibits adoption of children confronts fathers whether or

children without the consent of their not the family unit of which they once

married /divorced father or unwed mother. were a part was the product of a legal

INTRODUCTION AND SUMMARY OF ARGUMENT marriage. This case calls into question

Tt io Gbtibeced that « thisd or woes | the legal basis whereby the rights of an

of children now growing up in America will unmarried father to a relationship with

at some point find their parents separating.* | his children may be abrogated and

In over ninety percent of these instances, conferred in his stead on the man whom

My '

if present practice continues, their custody the children's mother subsequently

will be entrusted to their mothers.** The chooses to marry.

This Court has properly recognized

*Bane, Mary Jo, Here to Stay: American

Families in the Twentieth Century, New York

Basic Books 1976)

that the interest of an unwed father in

**See People ex rel Watts v. Watts, _ Misc. | Fig

__ 2d, 350 N.Y.S. 2d 285 (1973).

-12-

the children whom he has "sired and

raised" Stanley v. Illinois, 405 U.S.

645, 651 (1972) is included among the

fundamental familial rights protected

under the First, Ninth and Fourteenth

Amendments of the Constitution. The

provisions and application of Domestic

Relations Law §11l to permit the adoption

of Appellant's children without his

consent and without relationships to his

functioning as a parent, solely on the

basis of the consent of the children's

mother and a finding that adoption by

their stepfather was in their best

interest, impermissibly deprived Appellant

Caban of his substantive Due Process right

to a relationship with his children.

New York has no compelling or important

interest in severing the familial relation-

ship between an unwed father and his

children without regard to the father's

-14-

character and fitness as a parent and

without considering whether his relation-

ship to his children is harmful to them.

The description of New York's interest in

Matter of Malpica-Orsini, 36 N.Y. 2d 568,

370 N.Y.S. 2d 511 (1975) appeal dismissed

sub nom Orsini v. Blasi, 423 U.S. 1042,

46 I.. Ed 2d 643 (1976) is related primarily

to administrative convenience, and a stereo-

typic portrayal of unwed fathers based on

generalized speculation. New York has no

interest in fostering adoption for its own

sake for children who are not homeless and

have meaningful ties to their unwed fathers.

The "best interest of the child standard,"

the only standard considered in connection

with the adoption of an unwed father's

children, by its nature permits considerations

of parental fitness and harm to children to be

ignored. The "best interest of the child"

Standard is vague, subjective, incapable

of providing notice of the consequences

of particular conduct and subject to

arbitrary application. For all those

reasons it is an impermissible standard

for the termination of an unwed father's

parental rights. Provisions such as

those of Domestic Relations Law §]lll,

Subdivision 4 can satisfy the State's

interest in severing a destructive parent

child relationship.

The permanent severance of the parent-

child relationship for "slight" reasons

also deprives children of a meaningful

and important relationship with their

father. The meaning and importance and

the relationship persists even though the

children and their father are living apart.

The disparate treatment of unwed

fathers as Opposed to married fathers and

unwed mothers pursuant to New York Domestic

Relations Law §111 also denies Appellant

-16-

Caban the equal protection of the laws.

This discrimination on the basis of sex

and illegitimacy without "relationship to

individual responsibility" Frontiero v.

Richardson, 411 U.S. 677, 686 (1973)

permits children to be adopted or not

adopted on an arbitrary basis.

POINT I

THE ADOPTION OF APPELLANT'S

CHILDREN PURSUANT TO NEW

YORK DOMESTIC RELATIONS LAW

§111, ON ITS FACE AND AS

APPLIED DENIED HIM DUE

PROCESS AND EQUAL PROTECTION

OF THE LAWS

Appellant Caban's status as father and

relationship to his children David and

Denise, whom he had "sired and raised"

Stanley v. Illinois, 405 U.S. 645, 651

(1972) was permanently terminated when the

Surrogates Court, Kings County, approved

the children's adoption by their mother's

new husband Kazim Mohammed. As a result

@-17=

of the adoption all contact between Appellant

and his children came to an end. In the

Matter of Gerald G.G. Misc. 2d_, _N.Y.S.

2d__s- (1978).* The adoption of his children

was approved without their father's consent

because he fathered his children out of wed-

lock. Because of this fact, pursuant to

state statute, his consent to the adoption

of his okt leven was not required, and the

adoption could be opposed only pursuant

to the state law standard of "the best

interest of the child." As interpreted by

the Surrogate below in this case, as well

as in other New York decisions, Matter of

Malpica-Orsini, supra, Matter of Gerald G.G.,

supra,a putative father's relationship to

his children may be forever ended without

any showing that the father is seriously dis-

qualified from parenthood or that the

children will suffer significant harm as a

result of their continued relationship to him.

*New York Law Journal, April 28, 1978, p. 10

-18-

The opinion of the Surrogate shows (A 27-

30) that Appellant's character and relation-

ship to his children were treated as

irrelevant to the adoption decision, which

rested instead on the Court's approval of

Appellee's marriage and finding that the

children were well cared for by their

mother and her new husband.

NATURE OF APPELLANT'S INTEREST

By the Surrogate's adoption order the

State of New York deprived Appellant Caban

of a fundamental liberty recognized by this

Court as protected by the First, Ninth and

TOE AOR TS Amendments. E.G. Meyer v.

Nebraska, 262 U.S. 390 (1923); Prince v.

Massachusetts, 321 U.S. 158 (1944); May v.

Anderson, 345 U.S. 528 (1953), Armstrong v.

Manzo, 390 U.S. 545 (1965); Stanley v.

Illinois, 405 U.S. 645 (1972); Wisconsin

v. Yoder, 406 U.S. 205 (1972); Moore v.

East Cleveland, 431 U.S. 494 (1977).

-19-

In Stanley v. Illinois, supra the Court

admitted the relationship of an unwed father

and his children to that "private realm of

family life which the state cannot enter",

Prince v. Massachusetts, 321U.S. 158, 166,

holding that "the private interest here, that

of a man in the children he has sired and

raised, undeniably warrants deference and

absent a powerful countervailing interest,

protection." Stanley v. Illinois, supra at 651.

Since then this Court has repeatedly

noted that the legal status of families was

not controlling in the assessment of

familial rights under the Constitution,

Smith v. Crganization of Foster Families,

431 U.S. 816, fn 53 (1977) Quilloin v.

Walcott, U.S. _, 54 L. Ed., 2d 511

(1978). See also Rothstein v. Lutheran

Social Services of Wisconsin, 405 U.S. 1051

(1972).

-20-

Amicus believes that the permanent

severance of the parent-child relation-

ship between Appellant Caban and his

children without his consent under the

standard utilized by the Surrogate's Court -

the best interest of the child - is not

consistent with their substantive due

process right to their familial relationship,

a right which this Court has stated

"has its source not in state law,

but in intrinsic human rights,

as they have been understood in

this nation's history and tradition."

Smith v. Organization of Foster

Families, 431 U.S. 816, (1977).

The termination of the parental

relationships of the unwed father through

the adoption of children is no less pain-

ful or significant a loss because prior to

the adoption the children were not in

the father's custody. This Court has

recognized the value of the parent-child

-2l1-

relationship as "far more serious than

property rights" in cases where parent

and child hae not been living together.

May v. Anderson, 345 U.S. 528, 533 (1953);

Armstrong v. Manzo, 390 U.S. 545 (1965).

It would be too narrow and literal and

impoverished an approach to human and

familial relationships to suggest that the

love, identification and concern of a

father for his children can have sufficient

value and meaning to merit constitutional

deference only if father and children reside

under the same roof.

Amicus believes that the severance of

Appellant Caban's parental relationship to

his children without his consent based solely

on a finding that it is in the children's

best interest, is not justified by any

compelling or powerful state interest and

that such interests as the state legitimately

-22-

possesses could be accomplished by less

drastic means. Cleveland Board of Education

v. LaFleur, 414 U.S. 632, 639, 647 (1974);

Roe v. Wade, 410 U.S. 113 (1973); Moore v.

East Cleveland, 431 U.S. 494 (1977).

INSUFFICIENCY OF STATE INTEREST

The purported interests of the State of

New York in permitting the adoption of

illegitimate children "in their best

interest," but without their father's consent

and without any showing that he is otherwise

disqualified for parenthood were identified

by the New York Court of Appeals in Matter

of Malpica-Orsini, 36 N.Y.S. 24 568, 370

N.Y.S. 2d 511 (1975). This was the decision

relied on by the Court of Appeals in leaving

the adoption of Appellant Caban's children

undisturbed, Matter of David B.C., 43 Bet.

2d 708, 401 N.Y¥.S. 2d 208 (1977).

The majority's analysis of state interest

in Malpica-Orsini is striking in several

respects: The discussion of state interest is

-23-

eee

completely unrelated to the legal and human

situation involved in that case, and, even more

clearly presented by this case. The Court

of Appeals considered New York's concern for

the adoption of homeless foster children as

a justification for curtailing. the rights of

unwed fathers whose children not only are

not homeless, but, as in this case, have two

suitable homes beckoning. Further, the

Malpica-Orsini decision is written to suggest

that if an unwed father's consent to the adop-

tion of his children were required, any such

father no matter how unconcerned, cruel

and irresponsible would have absolute power

to prevent the children's adoption.

It is not disputed that New York State has

a legitimate interest in the welfare of

children in general and of homeless foster

children in particular. However, requiring

the consent of unwed fathers to the adoption

of their children will not jeopardize those

interests. The Court of Appeals’ assumptions

about the effect of such a requirement on

-24-

RE as en

the adoptign of foster children are

highly questionable.

The Court of Appeals,for example, was con-

cerned with the difficulties of locating pu-

tative fathers,if their consent to an adopt-

ion were required. But, since the Court of

Appeals acknowledged that the putative father

must be given notice of the proposed adoption,

the consent requirement would not make any

difference. The requirement of notice,including

notice of the consequences of failure to

appear, now codified in Dom.Rel.Law &lll-a and

Soc.Serv.Law§384-c means that the effort to lo-

cate the father must be made in any event.*

*For a helpful discussion of the manner in

which several states have dealt with the

notice problem see Freeman, Remodelling Ado-

ption Statutes after Stanley v. Illinois,

Journal of Family Law, Volume 15,No.3,p.385.

University of Louisville School of Law 1976-

1977.Interestingly,a recent study of paternity

and support proceedings in the N.Y. City Family

Court found that most putative fathers readily

acknowledged paternity and their support ob-

ligations. Who Should Support Children, Co-

mmunity Council of Greater New York,;225 Park

Avenue South, New York,NY10013 pp.64-65.

-25-

oe EE EE EEE eee ae

Further, as pointed out by Zegt,

Edmonds, Buttrey, Kaufman, in

New York Civil Practice, Family Court

Proceedings, Matthew Bender, New York

1976. Vol. 12B §40.2

"Where the person whose consent

would otherwise be required does

not appear, or if he appears

and contests, the issue then

becomes whether he falls into

one of the categories enabling

the court to dispense with his

consent.

The Court of Appeals was also concerned

that putative fathers of foster children would

harrass adoptive parents. But it is not clear

why it is the unwed fathers who is especially

likely to harrass. The New York State legis-

lature is apparently unconcerned with the risk

of harrassment, since it permits parents and

foster parents to meet and know one another's

identity in foster care review and custody

proceedings, Social Services Law §383(3),

§392, extension of placement proceedings,

Family Court Act §1055 and in some instances

-26-

At OS he Rate kg

in proceedings for termination of parental

rights, Social Services Law §384-b.3(a) and

(b). Further New York Courts can deal with «

problems of harrassment, when they occur,

by curtailing visitation - less drastic

means than final termination of the parent-

child relationship. De Biase v. Scheinberg,

47 A.D. 2d 657, 364 N.Y.S. 2d 34 (1975);

Herb v. Herb, 8 A.D. 2d 419, 188 N.Y.S. 2d 41.

Similarly, in its discussion of delays which

the need for the consent of unwed fathers

would create in the adoption process, the

Court of Appeals never mentioned that there

is a six months waiting period for the

approval of adoption in New York Domestic

Relations Law § 112(6).

The New York Court's speculation that

requiring an unwed father's consent to the

adoption of his child will lead to an in-

crease in black market adoptions, like the

question of harrassment, reveals the un-

yielding social prejudice which permeates

-27-

the Malpica-Orsini opinion. There is no

In its assessment of unmarried fathers,

factual basis for it. the Court of Appeals adopted the same

The negative image of the unwed father "Procedure by presumption" which was

in Malpica-Orsini bears no resemblance to

rejected by this Court in Stanley v.

the responsible and concerned unwed father Illinois, 405 U.S. 645, 656 (1972).

: . : WwW ‘ : .

in this case and in the many reported Ne Most important, in analyzing New York's

te ee A OR de en RR wm

i anil : ; s and : : eas . .

York decisions involving unwed father interest in facilitating the adoption of

their om teren. E.G. Application of Virginia foster children, the Court of Appeals in

eee Teenie

Norman, _ Misc. 2d_, 205 N.Y.S. 2d 260, Malpica-Orsini, failed to acknowledge that

(1960); Loretta Z. v. Clinton A., 36 A.D.

proceedings for termination of parental

2d 995, 320 N.Y.S. 2d 997; (1971); Raysor _ | rights exist to permit the adoption of

v. Gabbey, 57 A.D. 2d 437, 395 N.Y.S. 2d

foster children despite lack of consent

290 (1977); Stone v. Chip, 68 Misc. 2d 134;

from their parents, pursuant to S.S.L.

326 N.Y.S. 2d 520 (1971); Godinez v. Russo,

§384-b.* Similarly, in private adoptions,

49 Misc. 2d 66, 266 N.Y.S. 2d 636 (1966); Domestic Relations Law §11l, Subdivision 4

Cornell v. Hartley, 54 Misc. 2d 732, 283

provides grounds for dispensing with require

ee ee ee

N.Y.S. 2a 318 (1967); Pierce v. Yerkovich,

parental consents to adoption. These statutes

80 Misc. 2d 613, 363 N.Y.S. 2d 403 (1974);

a - - —.

, Len. 39 N.Y.S. At the time of Malpica-Orsini predecessor ;

Boatright v. Otero, _Misc. 24__ ° statutes, Social Services Law §384 and Family

2d 391 (1977); Anonymous Vv. Anonymous, 56 Court Act, Article 6, Part Le governed

involuntary termination of parental rights.

Misc. 2d 711, 289 N.¥.S. 2d 792 (1968). sia

People ex.rel Blake v. Charger 76 Misc. 2d

577, 351 N.Y.S. 2d 322.

-28-

provide bases for severing the parent-child

relationship in cases of serious parental

failure and serve the State's child pro-

tection interest.

In the case of foster children, grounds

for termination of parental rights include

abandonment, infrequent visitation, severe

and incurable mental illness or retardation,

as well as parental failure to make and

attempt to carry out plans for the future

discharge of the children from foster care.

See S.S.L. §384-b.4,5,6 and 7. These recently

revised provisions are powerful weapons the

State of New York has developed in the

interest of homeless foster children. See

Matter of Orlando F., 40 N.Y. 2d 103, 396

N.Y.S. 2d 64 (1976); Matter of Bradley U.,

55 A.D. 2d 722, 389 N.Y.S. 2d 431 (1976);

Matter of Anthony L "CC", 48 A.D. 2d 415,

370 N.Y.S. 2d 219 (1975). Given the ability

of the State of New York pursuant to statutory

proceedings to terminate the parental rights

-30-

oO ee ee ee en!

eae OTE Vernon Vee erine Van weer inen Pe a wie ve a eipe vee Tanta

of uncaring, irresponsible or severely

incapacitated parents of children in foster

care, thus making the children available for

adoption, there is no reasonable relationship

between New York's legitimate interest in

facilitating the adoption of homeless foster

children and the indiscriminate disregard of

the rights of unwed fathers expressed by

Domestic Relations Law §1ll, Subdivision 3 and

Malpica-Orsini, supra.

While New York's interest in finding

permanent homes for homeless foster children

is self-evident, the nature of New York's

interest in facilitating adoption of

illegitimate children by step-fathers, regard-

less of the fitness of the children's own

fathers, is far from clear.

The Court of Appeals in Malpica-Orsini

mentioned only two factors: One, was that

difficulty in adoption of step children

would discourage marriages. Like so much

in the Malpica-Orsini case this argument is

=-3i-

based entirely on conjecture. Nor is there

any showing that stepfather adoption will

contribute to the stability of a marriage.

More serious is the argument that step

father adoption frees illegitimate children

of "the cruel and undeserved out of wedlock

stigma." 36 N.Y. 2d 572. Yet, the stigma

of illegitimacy seems largely to be a thing

of the past." "The notion that marriage and

marital ties are essential to parenthood is

on the decline..." Betty Yorburg, The

Changing Family, Columbia University Press,

1973, p. 114. Not only has cohabitation

without marriage become more respectable,

but the high divorce and remarriage rates*

mean that there are many children whose

last name may be different from that of their

remarried mother. Thus, children born out

of wedlock do not have any special identifying

characteristics. There was nothing about

*Bane, Here to Stay: American Families in the

Twentieth Century pp. 29-34, Basic Books, 1976.

-32-

the Caban children's birth certificate that

would reveal that they were illegitimate.

See New York Public Health Law §4135. New

York State's interest in the protection of

children does not require that the interests

of unwed fathers be slighted. Where an unwed

father abandons his children or where his

relationship to them is destructive, Domestic

Relations Law §111, Subdivision 4 can be

applied to dispense with his consent to a

step father adoption as it is in the case

of married fathers.*

*Domestic Relations Law §111, Subdivision 4

authorizes dispensing with the adoption

consent of a parent who has abandoned a

child, who has been deprived of civil rights.

See Matter of Holly S.S. v. John S.S. 57

A.D. 2d 681, 393 N.Y.S. 2d 821 (1977);

Matter of Carey L. v. Martin L., 55 A.D.

2d 717, 399 N.Y.S. 2d 428; In the Matter

of Anonymous, 79 Misc. 2d 290, 359 N.Y.S.

2d 738 (1974).

-33-

New York may not prefer the state created

status of adoption merely for its own sake,

over constitutionally protected familial

interests. New York already provides the

unwed father with notice of the proposed

adoption, and, if the father appears, with

a hearing. New York's claims of adminis-

trative inconvenience and Appellees, no

doubt short shenaill, desire to have

Appellant Caban out of their lives does not

justify New York in providing Appellant un-

wed father with an "empty" hearing instead

of a meaningful one.

Amicus submits that New York's interest in

automatically dispensing with the consent of

an unwed father to the adoption of his child-

ren is de minimis.

INSUFFICIENCY OF BEST INTEREST OF THE

CHILD STANDARD

Both in Smith v. Organization of Foster

Families, 431 U.S. 816 ‘1977) and in Quilloin

v. Walcott, U.S. __ 54 L, Ed 2d 511 (1978)

=-34-

this Court suggested that abridgement of

parental rights solely because it was

“in the best interest of the child" and

without a showing of parental unfitness

would offend the Due Process Clause.

As this Court noted in Smith v. O.F .F.E.R.,

431 U.S. 816, fn 36 (1977) "the best interest

of the child" standard is vague. Lacking any

defined meaning this standard gives no

notice of the conduct, if any, that may

lead to the adoption of children over their

unwed fathers objections; nor does it

provide a basis for fair and uniform

application by judges. Further, there is

no such thing as weight of evidence when

"the best interest of the child" standard

is applied. "Best interest of the child"

has been subject to severe criticism by

legal scholars. The standard has been

described as inherently indeterminate.

"The indeterminancy flows from our

inability to predict accurately

human behaviour and from a lack

of a social consensus as to the

values that should inform the

-35-

decision. Mnookin, Child Custody

Adjudication, 39 Law & Contemporary

Problems 226 at 264 (1975).

Prof. Mnookin found that the best interest

standard allows judges to rely on personal

values, left considerable scope for class

bias and creates the unfair risk of retro-

active application of a norm of which the

parent will have had no notice. The best

interest standard leads to arbitrariness in

that:

"The same case presented to different

judges may easily result in different

decisions. The use of an indeterminate

standard means that state officials may

decide on the basis of Unarticulated

(perhaps even unconscious) predictions

and preferences that could be questioned

if expressed." Id. at 263. See also

Wald, State Intervention on Behalf of

'Neglected' Children, 28 Stanford Law

Review. No. 4, p. 623 (April 1976) at

649.*

*A comparison of the Surrogate's opinion in this

case with the opinion of the Appellate Division

Second Department in Matter of Gerald G.G. N.Y.

L.J. 4/28/78, p. 10 where opposite results were

reached on similar facts illustrates the

arbitrariness of the best interest test. In

both cases father and mother had lived and cared

for their children together and in both cases

the father continued to maintain an active

interest in the children after father and

mother had separated. If anything Appellant

Caban's relationship to his children was closer.

-36-

The best interest of the child standard

also is constitutionally defective because

it permits abridgement of fundamental parental

rights without a showing of parental unfitness

and consequent serious harm to the children.

Absent such a showing the state may not abridge

let alone permanently destroy a parent-child

relationship. Meyer v. Nebraska, 262 U.S. 390

(1923); Stanley v. Illinois, 405 U.S. 645

(1972); Wisconsin v. Yoder, 406 U.S. 205 (1972).

A number of lower Federal Courts have inval-

idated state statutes abridging familial rights

because of the vagueness and inappropriaten?:ss

of the standard used. Alsager v. District Court

of Polk County Iowa 406 F. Supp. 10 (Iowa 1975)

aff'd 545 F. 2d 1137 (8th Cir. 1976); Roe v.

Conn., 417 F. Supp. p. 769 (Md. Ala 1976);

Sims v. Texas Department of Public Welfare,

438 F. Supp. 1179 (Ed. D. Tex. 1977). In Roe

v. Conn., the three judge Federal District

Court stated:

"Due process requires the state to

Clearlv identify and define the evil

-37-

from which the child needs protection

and to specify what parental conduct

so contributes to that evil that the

state is justified in terminating

the parent-child relationship'417F.Supp. 780

ADOPTION AND THE INTERESTS OF CHILDREN

The natural affinity of children for their

father was acknowledged by this Court in Weber

v. Aetna Casualty and Surety Co. 406 U.S. 164,

169 (1972) to be as great in the case of

illegitimate as legitimate children. The

routine disregard of the rights of unwed

fathers in relation to the adoption of their

children thus slights the interests of the

children as well.

Not only do the children suffer the loss

of a father they have loved and known, but the

acquisition of a step father and adoptive

status may well not compensate for the loss.

Studies of children whose parents separate

or divorce show that the children value and

want to continue their relationship with both

-38-

eet

their parents.* Relationships between children

and stepparents can be problematic.** - as

readers of Cinderalla and Dickens' David

Copperfield may recall. Finally child wel-

fare and social work specialists, in res-

ponse to lessons learned from movement of

adoptees searching for their natural parents

have begun to question the desirability of

the complete rupture in relationships be-

tween natural parents and children which

characterizes present adoption practice.

"Taking a child from one set of

parents and placing him/her with

another set, who pretend the child

*Kelly and Wallerstein, Part-Time Parent,

Part-Time Child: Visiting After Divorce,

Journal of Clinical Child Psychology,

Vol. 6 No. 2, Summer 1977; Rosen, Children

of Divorce, Vol. 6, No. 2, Summer I977.

**Irene Fast and Albert C. Cain "The

Stepparent Role: Potential for Dis-

turbances in Family Functioning. American

Journal of Orthopsychiatry, April 1966.

-39-

is born to them disrupts a basic

natural process. The need to be

connected with one's biological

and historical past is an integral

part of one's identity formation." *

DISCRIMINATION BETWEEN MARRIED OR

DIVORCED FATHERS, UNWED MOTHERS

AND UNWED FATHERS

Additionally, the disparate treatment

pursuant to Domestic Relations Law §1ll,

Subdivision 2 and 3 of married or divorced

fathers as opposed to unwed fathers, and

unwed mothers as opposed to unwed fathers,

violates the Equal Protection Clause.

Pursuant to Domestic Relations Law

§1l1l1, Subdivision 2,3 and 4, absent a

showing of abandonment or other species

of unfitness a child can't be adopted

without the consent of its married or

divorced father or unwed mother. In

the same circumstances, the consent

of the unwed father is not required.

This difference in rights is substantial

*Sorosky, Baran, Pannor, The Adoption

Triangle, p. 219, Anchor Doubleday, 1978.

~40-

or ST ee

"The right of active participation

in presenting evidence and in

making arguments with respect to

the ultimate issue before the

adoption court - the best interest

of the child - is not at all the

same. . . aS requiring the consent

of the father as a prerequisite

to granting the adoption - in effect

granting him not only a right of

participation but a potential veto."

(Dissenting Opinion) Malpica-Orsini,

Supra. 36 N.Y.S. 2d at 578.

Amicus believes that the previously

presented discussion of state interest

demonstrated that the treatment accorded

to unwed fathers in relation to the adoption

of their children by Domestic Relations

Law §111 was not justified by any compelling

or sufficiently important state interests.

At the same time Appellant Caban's situation

and that of an unmarried or divorced father,

in relation to the adoption of his children

by a third person, are essentially the same.

Parental rights and obligations of a

legitimate and a putative father are virtually

the same in the areas of custody, visitation

-4l1-

and support under New York law. In

the case of a child of a marriage, the

mother and father have an equal claim to

custody and the non-custodial parent has

the right ot visitation, Domestic Relations

Law §240; Hotze v. Hotze, 57 A.D. 2d 85,

394 N.Y.S. 2d 753 (1977). Domestic

Relations Law §32 places primary responsibility

for support ‘ii the father. See also F.C.A.

§413. However, New York Courts are now

viewing both legitimate mother and father as

equally responsible for child support.

Carter v. Carter, 58 App. Div. 2d 438, 398

N.Y.S. 2d 88 (App. Div. 2nd Dept. 1977);

Tessler v. Siegel, 59 App. Div. 2d 846,

399 N.Y.S. 2d 218 (App. Div. lst Dept. 1977).

With respect to custody, New York Courts,

long adhered to the rule that the mother

has a superior right to custody of an

illegitimate child as against the child's

father. People ex rel Meredith v. Meredith,

~42<

272 App. Div. 79, 69 N.Y.S. 2a 462

(1947). More recent decisions reveal

a trend toward deciding custody

conflicts between unmarried parents as

if the mother's and father's right to

custody were equal. See Juan R. v. Necta

V., 55 A.D. 2d 33, 389 N.Y.S. 24 126

(App. Div. lst Dept. 1976); Godinez v.

Russo, 49 Misc. 2d 66, 266 N.Y.S. 24

636 (1966); Stone v. Chip, 68 Misc. 2d 134,

326 N.Y.S. 2d 520 (1971). The right to

custody of both unwed mother and father is

treated as superior to that of "strangers"

Raysor v. Gabbey, 57 A.D. 2d 437, 359

N.Y¥.S. 2d 290 (1977); People ex rel Blake

Vv. Charger, 76 Misc. 2d 577, 351 N.Y.S.

2d 322; Boatright v. Otero, Misc. 2d_,

399 N.Y.S. 2d 391 (1977). Visitation

rights of unwed fathers have been treated

on a par with married fathers, Pierce v.

Yerkovich, 80 Misc. 2d 613, 363 N.Y.S.

2d 463 (1974).

-43-

The putative father is also responsible

In Quilloin v. Walcott, _U.S._, 54 24a

for child support. F.C.A. §545. Where L. Ed 2d 511 (1978), the Court rejected the

paternity has not been legally established, claim that the interests of the unwed

it will be determined as an incident of a father in rel@§#6n to the adoption of his

proceeding for custody of a raaiaiainieae children were indistinguishable from those

tion of unwed

vache ices of a married father who is separated or

as also sub- . nm | |

father Appellant Caban w asiccidalibtasses aapeetuiics ihe hit aici

imi of many married

stantially aay gunaianal to that y villicieiel cet eat eee aa

or divorced fathers. He provided a home for

. — _—

GOI aa ct ste ce et ot an A

any responsibility for the care or support

his children together with their mother, of the child. Here Appellant Caban, the

contributed to their support, spent work- unwed father had borne such responsibility

day, leisuee and holiday times with them, and demonstrated his commitment to his

going through the ordinary small routines children.

of everyday family life and child rearing. At the same time there are married or

After the mother of the children left him divorced fathers whose committment to their

and took the children with her, he made children is minimal. Some may separate

sure to spend free weekend time with them: from their wives before their child is born;

Unhappy when his children were taken to others stay out every night. Where a

Puerto Rico he tried to regain their custody; married mother wants to surrender a child

then when the children were back with their for adoption, the married father has had no

mother he continued to see them every sustain Opportunity to demonstrate his committment

~44- to the child. Yet Domestic Relations Law

-4 5-

§1ll, grants greater rights to such

married fathers than to Appellant Caban.

A married father may default in his

support obligations as well as an unmarried

father. With respect to neither are support

obligations self-executing: Where support is

not provided legal recourse must be had

A at ts at. Aas ee

against both the once married and the unwed

father. And even fathers who cannot provide

support, provide children with psychological

resources and a valuable network of family

relationships.*

The discrimination between unwed fathers

and unwed mothers pursuant to Domestic Relations

Law §111 is equally arbitrary.

Just as "it is no less important for a

child to be cared for by its parent when that

parent is male ratner than femaie," Weinberger

v. Weisenfeld, 42) U.S. 636, 652 (1975), so

*Blaydon & Stack, Income Support Policies

and the Family, Deadalus, Spring 1977,

p- 147, p- 153-156.

-46-

the relationship between father and child,

apart from custody, is no less important

than the relationship between mother and

child.

While some Courts have held that there

was no necessary relationship between a

parent's gender and Suitability for custody

of a child, People ex rel Watts v. Watts,

__Misc. 2d_, 350 N.Y.S. 2d 285 (1973), the

relationship between a parent's gender and

the adoption decision is truly remote.

The Statute here results in denial,

without regard to the merits, of

the natural righi of the father,

not because the welfare of the

child demands it, nor because

there is any question that he is

a model father, but simply because

he is the male, rather than the

female parent." (Dissenting Opinion)

Malpica-Orsini, supra, 3

Malpica , Supra, 36 N.Y.S. 2d

-47-

On the principles of Reed v. Reed, 404 U.S.

71 (1971), Frontiero v. Richardson, 41l U.S.

677 (1973), Weinberger v. Weisenfeld, 420

U.S. 636 (1975), Stanton v. Stanton 421 U.S.

7 (1975), Domestic Relations Law §111 should

be struck down for impermissible discrimination

on the basis of sex as well as marriage status.

CONCLUSION

For all of the foregoing reasons, the

judgment of the New York Court of Appeals

should be reversed.

Respectfully submitted,

Dated: June 2/, 1978 ve Ay 5

\ ; (=

ian ee

CATHERINE P. TCHELL

COMMUNITY ACTION FOR

LEGAL SERVICES, INC.

Louise Gruner Gans,

of Counsel

335 Broadway

New York, New York 10013

(212) 431-7200

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