Illegitimacy

Whether a father acknowledges paternity or is adjudged to be the father in a paternity action, he has more custody rights today than at common law. At common law fathers were assumed to have little concern for the well-being of their illegitimate offspring. Historically, in most jurisdictions, if a child was illegitimate, the child could be adopted with only the consent of his or her natural mother.

This assumption, as embodied in a New York statute (N.Y. Domestic Relations Law § 111), was challenged in Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979). The key issue was whether the consent of an unwed biological father had to be obtained before an ADOPTION could be finalized. The Supreme Court ruled that a law depriving all unwed fathers of the right to decide against adoption, whether or not they actually took care of the children in question, was unconstitutional and a form of SEX DISCRIMINATION.