[152 NJSuper Page 547] This matter came before the court as an adoption proceeding initiated by B.'s maternal grandparents, E. and R., on January 28, 1977. A cross-petition for custody, originally filed by B.'s natural father on December 12, 1976 in the Juvenile and Domestic Relations Court was consolidated by the court on April 18, 1977 for hearing
with the petition for adoption. A guardian ad litem for B. was appointed on June 9, 1977. R. 4:26-2(b)(4).
B.'s mother, the daughter of E. and R., died in New York City on or about November 2, 1976. Although E. and R. were divorced in September, 1969, both are plaintiffs on the adoption petition. Their status as potential adoptive parents under the statute will be dealt with below.
B. was born on May 24, 1970 as a result of a relationship between plaintiffs' daughter and B.'s natural father, who at the time of B.'s birth was 17 years of age. The couple never married. Subsequent to B.'s birth the mother and son continued to reside in E.'s home for an approximate period of two years. During that time B.'s father visited almost daily. The mother then broke off the relationship, married for a short period of time and then moved to New York City where she lived with another man until her death. From the testimony adduced at the hearing it is clear that except for a three-month period, B. has been under the continuous care and supervision of his maternal grandmother. E. testified that while her daughter spoke with B. almost every day and contributed to his support when possible, she felt compelled to leave her son with E., as a result of her concern with his welfare.
The natural father formally admitted paternity before the Juvenile and Domestic Relations Court some six months after B.'s birth, and was ordered to pay support in the amount of $5 a week. The order was modified in 1975 to increase the amount to $13 a week. A review of the Probation Department records reveals a spotty and irregular payment history. The natural father's contact with B. was quite regular for the two years during which he maintained a relationship with the mother. However, his visits to the child dropped off considerably when B.'s mother left home.
The facts thus framed and the competing interests involved forecast the issues present in this proceeding. Substantial questions exist regarding the rights of the natural
father, the status of E. and R. as plaintiffs, and the best interests of B.
I. Parental Rights of Unwed Fathers
At the outset, a clarification of the rights of the natural father is in order. Of concern to the court is the applicability of N.J.S.A. 9:2-13 and 9:3-18 (see also R. 4:94-4(b)), which, by excluding the father of an illegitimate child from the definition of "parent," have the cumulative effect of denying to him any of the benefits of parenthood conferred by the remaining provisions of those chapters. Therefore, the right of the natural father here to custody, and his standing to object to the adoption petition must be examined.
Statutory distinctions between parents of legitimate and illegitimate children, as reflected in the present statutory scheme, cause the court to ponder the same question posed by Vice-Chancellor Howell in Baker v. Baker , 81 N.J. Eq. 135 (Ch. 1913):
The statutes of this state relative to the custody, care and maintenance of children are supposed to relate solely to children born in lawful wedlock. Why the principles thus legislated upon do not apply with equal ...