# Amicus Brief — Caban v. Mohammed

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1262%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1979
- **Citation:** 441 U.S. 380

## Text

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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

es

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

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

12

48

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

ii

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

iv

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

42

23

28

27

30

17,

18,

28,

27

48

36

43

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

42

19,23

28

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

48
37

23

20

33

|

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)

se

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-

42
4,11,12,
14,16,41,
45,48
4,40
3,4,5,
31,40
4,8,16,
29,33,40
5,25

27

42

42
ao
26

5
29

33

26
29
29
27
27
30
30
30

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-

30
25
26

12,

46

39

25

32

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

39

36

39

40

36

25

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

32

26

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,
Annotated, copyright 1964, Cumulative
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"

15

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.

r

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-

ee

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

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1262%3A09. Public record. Not legal advice.