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In re Guardianship of C.

Decided: November 20, 1967.


Kentz, J.J. & D.r.c.


This is an application filed by the New Jersey Bureau of Children's Services, Department of Institutions and Agencies (hereinafter referred to as the Bureau), pursuant to N.J.S.A. 30:4C-15(c) for guardianship of an illegitimate child born November 30, 1966. The mother of the child has consented to the Bureau's petition by executing a surrender of custody certificate. The putative father, however, has objected and himself seeks the custody of the child.

The questions raised in this proceeding are whether the putative father of an illegitimate child has standing to question the custody of such child where the child's mother has freely given her consent to the commitment of the child to a public agency for adoption placement and, if so, whether he has a right to custody of such child which is superior to that of a third-party stranger. Because standing and the right of custody are, under the facts here presented, interchangeable concepts, they will be discussed together.

After an exhaustive review of the related law in this State, it would appear that these questions have never been precisely resolved either by our decisional law or by the Legislature.

Although the issues raised here are unique in New Jersey, the question of the father's right to custody of his illegitimate child has arisen in many other states. In most of those jurisdictions the father has been held to have the right of custody. See Lewis v. Crowell, 210 Ala. 199, 97 So. 691 (Sup. Ct. 1923); Caruso v. Superior Court, etc., 100 Ariz. 167, 412 P. 2 d 463 (Sup. Ct. 1966); In re Guardianship of Smith, 42 Cal. 2 d 91, 265 P. 2 d 888 (Sup. Ct. 1954); Mitchell v. Davis, 24 Conn. Sup. 76, 186 A. 2 d 811 (Super.

Ct. 1962) (paternal grandparents allowed to retain custody over mother's objections); In re Brennan, 270 Minn. 455, 134 N.W. 2 d 126 (Sup. Ct. 1965); Aycock v. Hampton, 84 Miss. 204, 36 So. 245 (Sup. Ct. 1904); In re R.D.H.S., 370 S.W. 2 d 661 (Mo. Ct. App., 1963); Ex parte Schwartzkopf, 149 Neb. 460, 31 N.W. 2 d 294 (Sup. Ct. 1948); People ex rel. Meredith v. Meredith, 272 App. Div. 79, 69 N.Y.S. 2 d 462 (App. Div. 1947), affirmed 297 N.Y. 692, 77 N.E. 2 d 8 (Ct. App. 1947); Dellinger v. Bollinger, 242 N.C. 696, 89 S.E. 2 d 592 (Sup. Ct. 1955); French v. Catholic Community League, 69 Ohio App. 442, 44 N.E. 2 d 113 (Ct. App. 1942); Commonwealth ex rel. Human v. Hyman, 164 Pa. Super. 64, 63 A. 2 d 447 (Super. Ct. 1949); Hayes v. Strauss, 151 Va. 136, 144 S.E. 432 (Sup. Ct. App. 1928); Wade v. State, 39 Wash. 2 d 744, 238 P. 2 d 914 (Sup. Ct. 1951); In re Aronson, 263 Wis. 604, 58 N.W. 2 d 553 (Sup. Ct. 1953). A more detailed reference will be made to some of these cases later in this opinion.

The remaining states, where there has been a judicial expression on this issue, have held that the father is not entitled to the custody of his illegitimate child. See Clements v. Banks, 159 So. 2 d 892 (Fla. Ct. App. 1964); Day v. Hatton, 210 Ga. 749, 83 S.E. 2 d 6 (Sup. Ct. 1954); DePhillips v. DePhillips, 35 Ill. 2 d 154, 219 N.E. 2 d 465 (Sup. Ct. 1966) (expressly denied by statute); Butler v. Perry, 210 Md. 332, 123 A. 2 d 453 (Ct. App. 1956) (custody awarded to maternal grandmother over paternal grandparents; the decision was influenced in part by the fact that the putative father killed the mother in the home town of the paternal grandparents, and also by the fact that the putative father seemed content to leave the child with the maternal grandmother); Ex parte Wallace, 26 N.M. 181, 190 P. 1020 (Sup. Ct. 1920); Home of Holy Infancy v. Kaska, 397 S.W. 2 d 208 (Tex. Sup. Ct. 1966); Thomas v. Children's Aid Society of Ogden, 12 Utah 2 d 235, 364 P. 2 d 1029 (Sup. Ct. 1961). It should be noted that the decisions in New Mexico and Texas were based

on the fact that the putative father in those states had no correlative duty to support his illegitimate child.

In Oklahoma a child can be legitimated by the putative father taking him into his home and acknowledging him to be his child. He is then charged with the support and education of the child and is entitled to its custody, services and earnings. Allison v. Bryan, 21 Okl. 557, 97 P. 282 (Sup. Ct. 1908). Finally, in Barrett v. Koppen, 154 A. 2 d 132 (D.C. Mun. Ct. App. 1959), the father was denied custody, not by any rule of law, but purely on the basis of the child's best interests. The subject matter is also dealt with at length in 37 A.L.R. 2 d 882-889. See also 10 Am. Jur. 2 d, Bastards, § 62, pp. 890-892, and "Visitation and Custody Rights of a Putative Father," 26 Albany L. Rev. 335 (1962). See also 10 C.J.S. Bastards § 17 c, pp. 83-84.

In New Jersey, where legitimate children are concerned, it is well settled that parents have a natural right to the custody of their children. Richards v. Collins, 45 N.J. Eq. 283 (E. & A. 1889); Lippincott v. Lippincott, 97 N.J. Eq. 517, 519 (E. & A. 1925); In re Mrs. M., 74 N.J. Super. 178 (App. Div. 1962).

Chapter 4C of Title 30, the chapter under which this action is being brought, states in pertinent part as follows:

" N.J.S.A. 30:4C-1.

This act is to be administered strictly in accordance with the general principles laid down in this section, which are declared to be the public policy of this State:

(a) that the preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare."

And under N.J.S.A. 30:4C-3 it is stated in part:

"The Bureau of Children's Services, in administering the provisions of this act, shall:

(a) Provide care and custody for children eligible therefor in such manner that the children may, so far as practicable, continue to live in their own homes and family life be thereby preserved and strengthened."

Where one natural parent of a legitimate child seeks custody against the other natural parent, the courts will award custody to the parent who can better provide for the child's welfare and best interests. Fantony v. Fantony, 21 N.J. 525 (1956). However, where a stranger seeks to retain or obtain custody he must show compelling reasons why the natural parents should be deprived of custody. Hesselman v. Haas, 71 N.J. Eq. 689 (Ch. 1906); Ziezel v. Hutchinson, 91 N.J. Eq. 325 (E. & A. 1920); In re Judge, 91 N.J. Eq. 395 (Ch. 1920); Marcum v. Marcum, 265 P. 2 d 723 (Okl. Sup. Ct., 1954). The court in In re Judge, supra, said:

"The infant's welfare, all matters considered, is paramount and compelling in the eyes of the chancellor as parens patriae. The parental right, however, is never lost sight of as an influential and determining factor. If in a contest, as here, between a parent and a stranger in possession, for the custody of an infant of tender years there is equality as to character, condition, habits and surroundings of the claimants, the natural right will prevail; mere material advantage to the child will not count against the inherent right. The strict legal right will not be subordinated unless circumstances of weight and importance connected with the welfare of the child exist to overpower it, and these circumstances must be such as to imperil the personal safety, morals, health or happiness of the child." (at p. 397)

Thus, it can be seen that the right of the parent of a legitimate child to the child's custody is strongly protected by public policy and legal precedent, and likewise the legitimate child's right to the support, protection and company of his natural parent is equally well protected. There is no physiological or biological difference between a legitimate and an illegitimate child, nor is there any reason to suppose there would be less feeling of love and affection between child and parent merely because the child was born out of wedlock. However, for reasons buried in the past and half forgotten, the law has reduced the status of a portion of humanity, called the individuals bastards, and withheld from them certain rights.

At common law a bastard was said to be the child of nobody, nullius filius. Under this theory an illegitimate child had no father known to law, nor even a mother. Because of the disgraceful circumstances of his birth, he was disqualified from certain public and religious positions. Rights of inheritance by, from and through a bastard were severely restricted. See 10 Am. Jur. 2 d. Bastards, § 8.

In Hammond v. Pensylvania R.R. Co., 31 N.J. 244, 251 (1959), a case dealing with the meaning of the word "children" under the Federal Employers' Liability Act, Chief Justice Weintraub stated that the purpose of the fiction of nullius filius was to prevent inheritance and that the sweep of this fiction should be contained by the reason for its invention.

At common law the putative father was under no duty to support his illegitimate child, and there is no legal duty to support today except as provided by statute. The first legislative act requiring the father to support his illegitimate child was enacted to prevent the child from becoming a charge on the municipality. Borawick v. Barba, 7 N.J. 393, 395-403 (1951); Ousset v. Euvrard, 52 A. 1110 (Ch. 1902). It was not until L 1929, c. 153, now N.J.S.A. 9:16-2, 3, 4, was enacted that it was recognized that the father had a broader duty to support his illegitimate child which was not merely limited to saving the municipality the expense.

Prior to the passage of legislation changing the common law, the rights and liabilities of the parents of illegitimate children were explicitly outlined in Ousset v. Euvrard, supra, wherein it was said:

"Ordinarily the custody of an illegitimate child is with its mother; she has the right to the custody of the child, and she is charged with the duty of its support. She can ordinarily assert her right of custody against the father, to take the child from the father; and the court will aid her, and will recognize and vindicate her right as mother. The father has hardly any right at all of custody, if he has any at all which the law recognizes. His position is largely that of a stranger, an outsider, having no natural relation to the child or children. He may be chargeable for the support of the child, his illegitimate offspring,

under statutory proceedings; but if those proceedings are taken, and he is compelled to furnish support for the child, it is on the theory that the child otherwise would be a public charge; and the proceedings which result in an order of filiation uniformly leave the child in the custody of the mother, and the putative father is made liable to furnish support to the child while it is in the custody of the mother." (at p. 1110)

Our former Chancery Court held, in Hesselman v. Haas, supra, that the mother of an illegitimate child had a superior right to its custody over a stranger. In dictum it expressed uncertainty whether the mother would have a superior right to that of the putative father.

In Baker v. Baker, 81 N.J. Eq. 135 (Ch. 1913), there was a controversy between a husband and wife living separately. They had two children, one of whom by the then existing law was illegitimate. The father of the children petitioned the court for their custody, or if that be denied, reasonable access to both children. A question of law was raised whether the putative father had a legal right of access to his illegitimate child. Counsel for the father, for some reason, declined to argue the question of custody. The court held that the father had such a right of access providing it was in keeping with the best interests of the child.

In discussing the issue the court stated:

"The books are singularly void of precedents relating to access to illegitimate children, and while this question appears never to have arisen, I see no reason in the nature of things why this court should in a proper case be debarred of a right to give access to illegitimate children as well as to legitimate ones. It is said that chancery is the parens patriae, and as such administers its jurisdiction for the benefit of infants. Why ...

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