Yale Law Journal – Foundling Fathers: (Non-)Marriage and Parental Rights in the Age of Equality













In the spring of 1970, less than two years after the death of his “common-law wife” of eighteen years, Peter Stanley looked on helplessly as a judge declared his two young children wards of the state, condemning them to a series of foster placements and their father to years of legal turmoil.  Illinois’s definition of “parent” excluded “natural” fathers of illegitimate children, thus denying Stanley even a hearing to determine whether he was fit to parent the children he loved and had helped to raise from birth. These were the stark facts that Peter Stanley’s lawyers presented to the U.S. Supreme Court in 1971. The reality of Stanley’s legal status and of his record as a father was more complicated.59

But if Stanley had been a woman, married or unmarried, or if he had been able to produce proof of a valid marriage to the children’s mother, he would have been their legal parent and would almost certainly not have lost his parental rights. Stanley’s inability to produce a marriage certificate made him a legal stranger to Kimberly, age two-and-a-half, and Peter Jr., age one-and-a-half.60

In some states, Stanley could have presented proof of a common law marriage, but Illinois abolished that institution early in the twentieth century.61

Instead, Stanley’s attorneys argued that Stanley “did build up and develop a father relationship” with his children. “[W]e feel,” said Fred Meinfelder of Legal Aid, that “while he was not legally married to his wife that that should not be a basis for removing those children from him . . . .”62

State officials told the judge that Stanley was “not in a position to provide financial support” for his children but that “if he did have some progress and was to marry and establish an orderly family situation” he might be able to petition for custody later.63

His lawyers emphasized that if Stanley were not a legally recognized parent, he would have no standing to petition later for custody or any other rights. And while he might be able to find a wife and “establish an orderly family situation” in the future, under Illinois law Stanley could do nothing to change his legal parenthood status with regard to Kimberly and Peter, Jr.  As an amicus brief later put it, “there is no way to marry a dead person.”64

Before the Illinois Supreme Court, Stanley’s lawyers argued that the exclusion of fathers of illegitimate children from the category of “parent” violated the Fourteenth Amendment.65

In a cryptic opinion, the Illinois court ruled that unmarried fathers had no rights to their natural children unless such rights were granted to them by a court in an adoption or guardianship proceeding.66

Stanley had not sought guardianship or custody of his children, preferring to leave them in the care of a married couple whom he had asked to look after Kimberly and Peter Jr. a few months earlier. Pursuing an adoption would have been risky, as Stanley would have been required to meet a much higher standard than mere fitness—he would have had to prove himself a “suitable” parent.67

As a practical matter, then, the court’s ruling meant that he could be denied all access to the children—and indeed, he later petitioned for visitation to no avail.68

Source: Yale Law Journal – Foundling Fathers: (Non-)Marriage and Parental Rights in the Age of Equality


this research outlines the pervasive intrusion of religion and law in to the most basic human activity: parenting your own child… it’s disgusting… Lara



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