Quilloin v. Walcott

232 S.E.2d 246, 238 Ga. 230, 1977 Ga. LEXIS 970

• Court: Supreme Court of Georgia
• Decided: January 6, 1977
• Docket: 31643
• Status: Published

Opinions

Hill, Justice.

The constitutional rights of the natural father of an illegitimate child are presented here for review. After the child’s stepfather filed a petition for adoption, the natural father sought to oppose the adoption, to legitimate the child and to gain visitation rights. The trial court refused to declare Code Ann. § 74-203, placing all parental power in the mother of an illegitimate, and Code Ann. § 74-403 (3), requiring only her consent for such a child’s adoption, unconstitutional. The adoption was granted and the legitimation petition and visitation rights were denied. The natural father appeals.

The child, now twelve, was born in 1964. He has lived with his maternal grandmother or his mother all of his life, although he has visited with his father on occasions. The primary support for the child has been from his mother or his maternal grandparents. His father has provided some support and has given some presents from time to time.

In 1967 the stepfather and the mother were married, and on March 24, 1976, he filed his petition to adopt the child. The mother’s consent to such adoption was attached to the petition. The natural father made no effort to legitimate the child or to obtain visitation rights until after the stepfather filed the adoption petition.

On appeal the natural father argues that Code Ann. §§ 74-203 and 74-403 (3) are unconstitutional.

We begin by looking at the statutory scheme of Title 74, Parent and Child, in its entirety. Sections 74-101 through 74-112 are concerned with legitimate children — what children are legitimate, how illegitimate children can be legitimated, etc. Code Ann. § 74-108, entitled "Parental Power” states how; a father’s parental power shall be lost:"... 2. Consenting to the adoption of the child by a third person. 3. Failure of the father to provide necessaries for his child.... 5. Consent to the marriage of the child. . .” Sections 74-201 through 74-205 deal with illegitimate children. Section 74-203, which is under attack, states the rights of the mother of an illegitimate child: "The mother of an illegitimate child shall be entitled to the possession of the child, unless the father shall legitimate him as before provided. Being the only recognized parent, she may exercise all the paternal [sic] power.” Georgia law provides for two ways by which a child can be legitimated by the father: Under § 74-101 by the marriage of the natural father and the mother and the recognition of the child as his, and under § 74-103 by a petition for legitimation.

With the classification of the children as legitimate and illegitimate in mind, we turn to §§ 74-401 through 74-424 involving adoption of children (§ 74-301 et seq. were repealed in 1973). Section 74-403 concerns the consent to adoption required of parents or guardians. Subsection (1) states that no adoption shall be permitted except with the written consent of the living parents of a child. Subsection (2) provides for an exception where the child has been abandoned or parental custody has been terminated. Subsection (3), which is under attack, provides that "If the child be illegitimate, the consent of the mother alone shall suffice.”

The equal protection clause of the Fourteenth Amendment requires that all persons be treated alike under similar circumstances and conditions. It does not, however, prevent classification if the distinction is based on valid state interests. In Labine v. Vincent, 401 U. S. 532 (1971), the United States Supreme Court held that Louisiana’s intestate succession laws that bar an illegitimate child from sharing equally with legitimate children are not violative of due process or equal protection. That is to say that a state may make valid classifications of children, of legitimate and illegitimate, if based upon valid state interests.

Georgia has concern for the well-being of all its children. To further the protection and care of its children, Georgia favors and encourages marriage and child rearing in a family relationship. In the case of an illegitimate child, there is no marriage and, most frequently, there is no father to raise the child; instead there is only a mother. It is reasonable for Georgia to place full responsibility for the illegitimate child on the parent who is present. This placing of full parental power in the mother is consistent with the public policy favoring marriage and the family because the father can choose to join the family (Code Ann. § 74-101), or can petition to legitimate the child (§ 74-103).

In the usual case, if the mother of an illegitimate child decides not to raise the child herself and consents to adoption, the state’s interest in promoting the family as an institution for child rearing is served since the child will be placed with the adopting family. If the consent of the natural father were also required he might refuse without accepting the responsibility of fatherhood, and the state could be required to sever his relationship before the adoption could proceed. In addition, since the father has already shown his lack of interest by his failure to legitimate the child, there would be a very real danger of profit seeking by the father in order to secure his consent to the adoption. Georgia’s interest in seeing to the needs of children is served by the statutory scheme. When the illegitimate child’s mother consents to adoption, the state and the mother’s interest coincide and the child can be placed with a family.

The state’s interest is even stronger under the facts of this case. For eleven years the natural father took no steps to legitimate the child or support him. Yet when the stepfather, married to the child’s mother, wishes to adopt the boy and accept responsibility for him, the natural father suddenly opposes legal recognition of this family unit.

We find that neither Code Ann. § 74-203 nor § 74-403 (3) denies the natural father equal protection of the laws.¹

The natural father contends that the Georgia statutes take away his parental rights without due process of law. He relies on Stanley v. Illinois, 405 U. S. 645 (1971). In Stanley, the Supreme Court held an Illinois statutory scheme unconstitutional which required a hearing and proof of unfitness before the state could assume custody of a child of married or divorced parents or unmarried mothers, yet required no such showing before separating a child from an unwed father. In Stanley, the father was a de facto member of the family unit,² and the mother had died. Either of these factual differences would be sufficient to distinguish Stanley from the case before us. We find that Stanley is not controlling and that Code Ann. §§ 74-203 and 74-403 (3) violate neither equal protection nor due process.

Argued October 13, 1976 — Decided January 6, 1977 Rehearing denied January 27, 1977. William L. Skinner, for appellant. Thomas F. Jones, for appellee. Arthur K. Bolton, Attorney General, Carol Atha Cosgrove, Staff Assistant Attorney General, amicus curiae.

Judgment affirmed.

All the Justices concur, except Undercofler, P. J., Gunter and Ingram, JJ., who dissent.

1 See In re Adoption of Malpica-Orsini, 36 N. Y. 2d 568 (370 NYS2d 511, 331 NE2d 486) (1975), appeal dismissed, 423 U. S. 1042 (1976).

2 Georgia recognizes common law marriages but Illinois does not.