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Show POORl COPY PAGE FOUR THE DAILY between the illegitimate child and hli putative father. WEDNESDAY, NOVEMBER 18, 1970 RECORD joined with appellant heroin in attempting to secure cusrody means of a writ of )iabes corpus, n ite Nn. 1 ' ' N.J.S. A. 9:16-- 2 reads; In that "A child born out of wedlock shall be entitled to support and education from its father and its mother to the same extent as if born in lawful wedlock. stated: propercase. . It is clear that the present trend of legal and popular thinking la that a willing father of an illegitimate child should have a right to custody if it is in the best interests of the child, particularly where the mother has abandoned the child, either actually or constructively by surrendering the child to an agency for adoption. In 196S, the legislature enacted the Uniform Act on Paternity, Chapter 45, Title 78, Section U.C.A, 1953, provides: 78-45a- -l, The father of a child which is or may be born out of wedlock is liable to the earns extent as the father of a child born in wedlock . . , for the education, necessary support and funeral expenses of the 'child. 78-45a- ... provides: -2 ... If paternity has been determined or has been acknowledged according to the laws of this state, the liabilities of the father may be enforced in the same or other ... proceedings. As the New Jersey i.ourt observed, since this enactment has cast 'nor. the father the duty :o support and educate, his illegitimate child as if it were born in lawful wedlock, it should follow that the father's right to custody should be almost as coextensive. The rationale for the comznon law doctrine of filiua nulllus has been nullified by legislative action. Other courts have propounded other theories for holding that the putative father's custodial rights are secondary only to the natural mother's. The court in Guardianship of Smith citsd Civil Cods, Section 30 (whichstw U. C.A. 1953), and stated that unlaM the flafeer identical to Section had a right to custody, it was not probable that he would receive ae miner the court stated into hie home and legitimata them, hi Fierro v. Ljjjjjbicich no a was that fundamental for court that it can, any but the gravest principle oxn to its natural parent any ether pereon, since reasons, transfar a child Jr the right ef a parent, under natural law, to eatablieh a heme and bring up children ii a fundamental one and beyond the reach ad any court. This rule applies to illegitimate as well as legitimate children 78-30-- 12, The common law doctrlpe of flllus nulliue has been superseded by relationship has bean eatablishad legislative action. A etatutoryjparent-chll- d between the publicly acknowledged child and hie putative father that places the child in parity with a legitimate child in rights of support, education, and inheritance. The putative father of an illegitimate child ie entitled to its custody and control as against all hut the mother, if he ie competent to care for and suitable to take charge of the child and if it appear that the beat Interest ef the child will be thereby secured. " This cause is reversed and remanded to the Juvenile Court with an order to set for hearing and plenary determination of the petition of James N. Thomas on the question of his right to tho custody of Baby Girl M. Allan Crockett, Chief Justice the ,utho , . i.c .. !'.. ..ii i. . That statement ie ae true now as it wae whan written. An illegitimate father has no legal claim upon nor legal right in or to the custody of his child unless such claim or right can be found in a statutory modification of Under our statutes the only ways an illegitimate father can get any rlghta In the child are: (a) publicly acknowledge the child as 1.1s own and taka it into his home with the consent of his wife, If married, and treat it as if it were legitimate; (b) marry tha mother after an adjudication of being the father is made in a bastardy proceeding; (c) contingent right! after an adjudication of paternity in a bastardy proceeding; (d) adoption of the child; (e) possibility of some court declared rights after a judgment requiring support pursuant to ths Uniform Act on Paternity. 6 This appellant has not been adjudged to support the child in question nor haa he either married the mother nor taken the child into hie home and treated it as If it were legitimate. While he did publicly acknowledge hie paternity during the court proceedings, hs has not qualified under any of our statutes as having any rights in or to ths child. The Juvenile Court ie given exclusive authority to terminate all legal ? relationships, & and sets forth ths grounds upon which that can be terminated, Ths point to be kept in mind, however, is thei ths Illegitimate father is a parent within the meaning of the law. parent-chil- d rela-tisnsh- lp Certainly such a father cannot maintain an action for damages under ths wrongful death statute nor could he have a preference in the appointment of a guardian for a minor under the age of fourteen years. Such a father has no rights at all in the child unless and until he brings himself within some statutory provision which will afford them to him, I cannot agree that the court terminated the rights of the appellant solely upon the grounds that he had no euch rights. I am of tha opinion that the court could have dona so, but such was not the case In this matter. Here the Juvenile Court gave notice to the appellant and to the mother that they should appear on February 26, 1969, at the hearing of a petition to terminate all parental rights in and to the child in question. Both parties appeared end testified. Other witnesses were aworn and examined end by the State, the court, and by appellant' i 8hmS. cross-axamin- ed Upon the conclusion of the evidence the appellant, through hie couneel, moved for a continuance, which was granted by the judge. During the continuance the appellant filed a petition for custody of the child. Since the aneeLion before the court wae whether the appellant and the mother should be deprived of all parental rights, the court did not need to have a further hearing on the petition and so denied it forthwith by the following order: The above -- entitled matter was before the Court on the 26th day of February, 1969, for a hearing on a Petition filed in the interest of the above child; subsequent to the hearing and prior to the decision made by the Court, the putative father of the child, Jamea N. Thomas, filed a Petition for Custody and Affidavit and a Supplemental Affidavit requesting that consideration be given to the custody of the child being granted to him; although Mr. Thomas is the putative father, he is not the legal father and, there- fore, has no legal rights to the child; FURTHER, this Court has previously deprived Mr. Thomas of custody of two other children, Vincent Andre Thomas and Keith Antoine Thomas, Case Nos. 205941 and 205942; said action was taken on September 13, 1965; since that time the children have continued to live in foster homes and Court action has been required to force support payments from Mr. Thomas on behalf of the children; he still is unable to provide for these two children after 3 12 years of foster care; FURTHER, it would be contrary to the interest of the above child to follow the same foster care pattern as these other two children; While the court was of the opinion (properly so, I think) that the appellant had no right to the child and therefore refused his petition for custody, nevertheless the court made the following finding of fact: R. L. Tuckett, Justice F. Henri Henriod, Justice 14. 15. 16. by 607 THEREFORE, IT IS HEREBY ORDERED that the Petition for Custody of the above child filed by James N. Thomas nOLbe set for hearing and that it be dismissed. WE CONCUR: J. written 1 the common law. Since the father's duty to support and educate the child is to the same extent as if the child was born in lawful wed lock, it should follow that the father's right to custody should be almost as Thus, while his right is not as the of as is certainly far greater than it that mother, great that of a stranger. Section a dcciitiijn 1 The putative father of en iHcglrima'f . I. i !: occupies no recognized paternal status at common law or under our statutes. The law does not recognise him et ell, except that it will make him pay for the child' e maintenance if it can find out who he la. , . 11 . . Furthermore, since the father of the Illegitimate child has been given the statutory duty to support and educate the child, independent of the bastardy proceedings, he should have the corresponding right to the custody of the child in a cate child by 42 Cal. 2d 91, 265 P. 2d 888, 37 A. L.R. 28 867 (1954). 5 Miec. 2d 202, 165 N. Y.S. 2d 290 (1957). 37 A.L.R.2d 882, Anno: Right of putative father to custody of illegiti- mate child. (6) It is in the best interest of the child that the mother and putative father be deprived of the child's custody and the child be placed in the care and custody of the State Department of Public Welfare and the parents should be permanently deprived of all parental rights. The decree of the court contained the following order: That all parental rights of the mother, Kathleen McMurtrey, and James N. Thomas are hereby permanently terminated and legal custody and guardianship of the person of the above child is hereby placed with the State Department of Public Welfare, a licensed childplacing agency, for placement in a suitable adoptive home; that the said department ia hereby ordered to pay for the 2. ELLETT. Justice: (Dissenting) I distent. The appellant, a Negro, and the mother of the child, a white woman, lived together after the mother conceived a prior child duiing July 1958. 1 hat child w born April 13, 1959. The appellant and the mother went through a purported marriage ceremony In Idaho en June 18, 1959. This marriage was void for ths rssson that appellant at that time had a wife living from whom he was not dlvorcsd until April 4, I960. This dlvorc bscams final July 4, I960. Appellant and the mother were ostensibly divorced in 196! although they had never been legally married to each other. The mother gave her consent to the adoption of that child but lator I support and maintenance of said child until the adoptive placement is made. This order was fully justified by the evidence given at the hearing wherein the appellant and his counsel participated fully, and thia court should affirm the judgment. I would therefore affirm the judgment. t 4 |