Warren E. Burger: We’ll hear arguments next in Caban against Mohammed. Mr. Silk I think you may proceed when you are ready.
Robert H. Silk: Thank you Your Honor. Mr. Chief Justice --
Warren E. Burger: Raise the lectern if you’d like, the lectern itself. The handle on the side here will -- that’s -- other way, bring it up.
Robert H. Silk: Thank you. Mr. Chief Justice and may it please the Court. This appeal brings to this Court for review a judgment of the New York Court of Appeals. The New York Court of Appeals, by dismissing an appeal from the Appellate Division of the Court, from an order of the Surrogate's Court in New York, in effect affirmed a judgment of the lower court, which terminated the parentage of Appellant to two children whom he had sired, whom he had raised, whom he had cared for, whom he had lived with, whom he had supported for more than half of their lives. And did so without any proof of unfitness, did so without any particularized findings of unfitness, did so on total disregard of his parental rights as a father, and effectively broke and smashed up his family relationship with these two children whom, at the time the adoption petitions were filed, he had been supporting, he had been caring for, he had bought a house for, they had lived with him, and whom he was fighting for their custody in another court. They broke up the relationships of this man with his children without any finding that he did not have a family relationship with them as is required in Quilloin against Walcott, without any finding, without any prove at all that he was a bad father. They broke up his relationship with his children and, in effect, replaced him, took them away from him in effect and replaced him with a stepfather and with a stranger upon this sole ground that he was of the male sex and not the female sex and that being of the male sex he was not married to the parent of the female sex.
Warren E. Burger: And who was this stepfather again?
Robert H. Silk: The stepfather was the husband of the mother.
Warren E. Burger: That’s of some significant, isn’t it?
Robert H. Silk: I think that it is only perhaps of some significance if we have first disposed of the rights and interest of the father himself, of the natural father who had been raising the child.
Potter Stewart: Now, if these children were going to be adopted into either family, that is, the new family, that is that of the natural father and his new wife or that of the natural mother and her new husband.
Robert H. Silk: Yes.
Potter Stewart: If there was going to be any adoption at all as between those, the rights of one of the natural parents were going to be terminated in the drastic and dramatic way you’ve just described, isn’t it?
Robert H. Silk: I would have to agree with Your Honor that that is what would have happened.
Potter Stewart: In the event an adoption --
Robert H. Silk: By either side.
Potter Stewart: By either side, and the rights one of the natural parents are going to be terminated in just the complete and dramatic way you describe, isn’t that correct?
Robert H. Silk: There is no question about that at all.
Potter Stewart: So wouldn’t your -- I think the -- am I correct in understanding that the logical consequence of your argument would be that the only affair and indeed the only constitutional thing to do in a situation such as this one is not to have any adoption at all.
Robert H. Silk: That is precisely, that is precisely what my argument is.
Potter Stewart: That’s right.
Robert H. Silk: I do not see how the father could take the child away from the mother to the point where his wife would become the adoptive mother of the child and the original mother would be left out in the cold and I make no claim of that sir.
Warren E. Burger: If the father, the adoptive father, had succeeded and did succeed ultimately, the child would acquire another source of support, would it not?
Robert H. Silk: Well the child would have had that --
Warren E. Burger: Legally enforceable source of support.
Robert H. Silk: No, the child already had another source of support under the New York Law, because under New York Law a stepfather is also made responsible for the support of his child whether or not that child is adopted by the stepfather. But what the adoption would do and did do was to terminate the obligation of Appellant to support his child and Appellant did have an obligation to support his child prior to the adoption, even though the child was born out of wedlock. So what the adoption did was to replace the natural father with the stepfather, to no advantage of the child except to destroy the child’s relationship to his natural parent -- to their natural parent, there were two children.
Warren E. Burger: How does it destroy that relationship? The Court may place the custody wherever is deemed best for the welfare of the child or children, may it not?
Robert H. Silk: That is right, but this was not a custody case. A custody case --
Warren E. Burger: No, but they do have the power.
Robert H. Silk: They must, they must place the child in terms of custody with whichever parent it is in the best interest of the child to have the custody, but that does not cause the termination of parental rights. The child still sees the non-custodial parent. The non-custodial parent still retains obligations to take care of the child. The non-custodial parent still retains the opportunity to see the child, and the child knows it roots.
Warren E. Burger: Is that foreclosed if the child is adopted by the new husband?
Robert H. Silk: The adoption has a different effect from custody. The adoption not only --
Warren E. Burger: My question is does it foreclose?
Robert H. Silk: Yes, the adoption --
Warren E. Burger: Does it mean the Court doesn’t have the power to permit visitation rights for the natural father?
Robert H. Silk: It does not. The adoption completely drops a blank wall between natural parent and child, completely totally drops a blank wall and the only way that the child can ever see his father is if the adoptive parents permit the child to do so, because under the New York Adoption Law, the child has now a new set of parents and his name is changed -- their names are placed on his birth certificate, in this case it just means placing the name of the mother on the birth certificate -- of the adoptive father on the birth certificate. It means a change of name, it means the change of identity, it means a total change for the child, so that the child’s relationships with parental people are destabilized, and instead of continuing on with a continuing course of a family relationship, which the child had had with its natural parent, the child suddenly finds that a natural parent appears to the child to have rejected the child, and the child in this case will never know how long and how hard his father has fought to maintain his relationship with him.
William H. Rehnquist: Are you suggesting counsel that these children had a very stable relationship before the adoption proceeding?
Robert H. Silk: Yes, there is no question about that these children had a stable relationship with their father and I would think probably with their mother before the adoption proceedings took place.
William H. Rehnquist: Would you call it -- would you think it was something that New York was constitutionally required to say met the minimum standards for raising of children?
Robert H. Silk: I don’t quite understand Your Honor’s question.
William H. Rehnquist: Well, the shifting back and forth and the tensions that obviously existed, didn’t your client take the children back at one time and didn’t your opponent’s client take the children at one time?
Robert H. Silk: Yes. My client took his own children back from Puerto Rico. Once they had been sent by the Appellees and where they had remained for some 14 months with their grandmother. He brought them back to New York. He brought them into his home. He provided them with a home, he provided them with support. He provided them with a family and he took care of them and wanted to continue to take care of them and made every effort to do so until he was compelled by a temporary interim order of the Family Court, which was made only prior to a hearing and prior to a determination of the merits to turn the children over to the mother on a temporary basis, but reserve the rights of visitation to himself.
William H. Rehnquist: Well, it sounds to me like your argument is kind of like a joint tenancy one, that on divorce the husband gets a half right on the children and the wife gets a half right on the children. I think New York’s approach is that neither parent necessarily has any compelling interest in the child, that it’s the children’s welfare.
Robert H. Silk: Well, actually that maybe New York’s interest, if that is what New York says and I don’t believe that it is quite what New York says. New York says, under Section 70 of the Domestic Relations Law that there shall be no prima facie right to custody of a child, but custody shall always be determined in the best interest of a child. But again I want to emphasize that this is not a custody case. This is a termination of all parental rights. This is breaking up of a family case. This is a breaking up of family and this is a substitution from a natural father -- for a natural of an adoptive father.
William H. Rehnquist: The family broke up when the natural mother and the natural father separated didn’t it for all practical purposes?
Robert H. Silk: Not the family, between the children and their respective parents --
William H. Rehnquist: But that’s two different families.
Robert H. Silk: Well, the family that we are concerned with here is the family of the children and the family of the parents and while the parents may separate --
Thurgood Marshall: Mr. Silk this is a strange family. When a husband and wife live in separate residences in New York and the children are living in Puerto Rico, that is not a normal family.
Robert H. Silk: That is the situation that was created by the mother --
Thurgood Marshall: But that’s not a normal family.
Robert H. Silk: No it wasn’t, and my client did everything he could to make it a normal family by bringing the children back to Puerto Rico and when the children came back to Puerto Rico, the matter went into the Family Court --
Thurgood Marshall: It still wasn’t a normal family.
Robert H. Silk: Well, once the children came back from Puerto Rico, it was as normal as families of divorced families by the millions are when they have children. It was a family in which the child custody had yet legally to be determined.
Thurgood Marshall: But then maybe I object here saying that a divorced family is a normal family.
Robert H. Silk: Well, maybe it’s more normal than we think I am afraid, because I agree with Your Honor, that it is not anything that is to be looked for, but there are, on the other hand, millions of divorced families in this country and they have managed sometimes through the aid of family courts to work out custody problem and visitation problems and support problems so that the children are not shuttled back and forth. New York has a strong policy against shuttling --
Thurgood Marshall: I think we all know that; why not get to this case.
Robert H. Silk: Your Honor what happened in this particular case is that the Trial Judge made a determination and he made a determination in his opinion and it has been upheld through all the New York courts.
Warren E. Burger: And that opinion was that the best interests of the child called for there being with the mother and that this adoption should proceed.
Robert H. Silk: That was part of it, but part of his opinion was that my client had no right to object to an adoption that, that was not a legal necessity, and the prime objective, and Your Honor is quite right and I may read the opinion at Page 8, the Appendix 28. The prime objective of allowing a putative father to be heard is therefore not to determine the degree of his continued interest in the child, but rather to determine the best interest of the child, that is what the Trial Judge said. Now what the Trial Judge did there was to apply the wrong legal tests because in a situation where you have a termination of parental rights, state power cannot be trusted to determine that the best interest of the child requires the replacement of his natural fit father with a stranger and the breaking up of the child’s natural family ties with his natural father without proof of unfitness.
William H. Rehnquist: Aren’t you reading the word prime as if it were only in that sense? Prime simply means the foremost. It does not mean the only, does it?
Robert H. Silk: It might be but in this case the judge was saying that it was the prime objective but he had no other objective whatsoever to show and he did say that a putative father’s consent to such an adoption is not a legal necessity, at Page 27 of the Appendix. So it is quite clear that although he used the word prime --
Potter Stewart: Well, that’s what the statute clearly provides, doesn’t it?
Robert H. Silk: And that’s what under --
Potter Stewart: He was accurate in that statement insofar as he was reciting then law of New York.
Robert H. Silk: He certainly was. He was certainly following the New York statue and that’s why this case is coming here by appeal, and not by certiorari, because --
William H. Rehnquist: Do you contend that the putative father constitutionally has an absolute right to veto an adoption like this?
Robert H. Silk: A putative father -- no I would not want to call him a putative father, he is the natural father. He is the real natural father of this child, and he is the father who has raised and supported this child for more than half of the child’s life and who was doing so at the time the adoption petitions were filing, and he was fit and he was concerned, I would say he did have a right.
William H. Rehnquist: But are you saying that all natural fathers have that right or just your client under these particular circumstances?
Robert H. Silk: I am saying all natural fathers who performed as did my client, and I am saying that all natural fathers have that right who had a relationship with his child. Now, the relationship with the child is the missing factor that was missing in Quilloin against Walcott. In that case, this Court recently considered the constitutionality of almost an identical statute from the State of Georgia. And in that case the Court looked very carefully at the relations that the father had with the child to find whether the father had a protected interest with the child. And the Court looking at these relationships found that they were skimpy and scanty indeed and I would have to agree that Quilloin against Walcott lays down the law and that is that a father who has only sired but not raised the child and has played no role in raising the child, he has not a constitutionally protected interest under Stanley against Illinois. Now, Stanley against Illinois referred to a situation in which Stanley’s family was being dismembered, if the Illinois law were applied. In which Stanley’s children, whom he had sired and raised, were being taken away from him if the Illinois law applied without any proof of his unfitness.
William H. Rehnquist: By the maternal grandparents.
Potter Stewart: MThat was not an adoption case at all.
Robert H. Silk: It was a parental termination rights case and in terms of termination of --
Potter Stewart: Well the mother was deceased as I remember.
Robert H. Silk: The mother was deceased.
Potter Stewart: And it was the matter of the custody rights as the natural father vis-à-vis the custody rights of the state -- institutionalizing him under the agency of the state.
Robert H. Silk: What I believe –-
Potter Stewart: Am I wrong in my recollection?
Robert H. Silk: Well, I believe that it was a little more than that, because I believe that the child was being treated as someone who could be placed, taken by the state and, made award of the State of Illinois, placed for adoption, and the father’s rights were in effect being terminated by the proceedings that was taking place.
Potter Stewart: Custodial rights.
Robert H. Silk: Well it was –-
Potter Stewart: It was not an adoption case, you would agree with that.
Robert H. Silk: No, it was not an adoption case. But it was a termination of parental rights case.
Potter Stewart: And the natural mother was dead.
Robert H. Silk: Yes, but part –- well, I would there say that --
Potter Stewart: That’s also correct. I am relying on my recollection.
Robert H. Silk: -- that I do not see how it can be justifiably maintained that a father’s relationship with his children is any less valuable and important than a mother’s relationships with a child.
Potter Stewart: Well, the point is in Stanley, you didn’t have a competition between the two because the mother was dead.
Robert H. Silk: Yes, that is true. But the net effect as far as the father was concerned and the father’s relationship with his children in Stanley against Illinois and in the present case is precisely the same.
Potter Stewart: But, the competition in Stanley was first of all not for adoption at all, at least at that stage, simply for custody and secondly between the natural father, who had not only sired but raised the children on the hand and the state on the other. That’s correct, isn’t it?
Robert H. Silk: Yes, that is absolutely correct Your Honor. Insofar as the protectable interest of the father is concerned in his child, however, the effect of the two is exactly the same, because in both Stanley against Illinois and in this case at stake was the dismemberment of the father’s family. At stake in Quilloin against Walcott the father did not have a family with the children. In Stanley against Illinois, the father had a good family with the children, he had raised them and supported them, and he had lived with them and they had lived with him. In the present case which we have now before the Court, we have precisely the same situation. In Quilloin against Walcott, we did not have that situation. In Quilloin against Walcott you had a situation in which the father’s relationship with the child was wispy at best and in which the child’s relationship with the proposed adoptive stepfather was a thousand times stronger. He had lived in the same home with the adoptive proposed stepfather -- I mean with the proposed -- with the stepfather who was the proposed adopting father. He had lived in the same home for seven years.
Lewis F. Powell, Jr.: May I interrupt you a minute? I missed something in the statute somewhere because, you’re talking a great deal about the relationship of the father to the child. Does the statute say anything about that?
Robert H. Silk: No. The statute says –-
Lewis F. Powell, Jr.: What would the situation under the statue be if neither parent had any relationship with the child at the time? Let’s suppose they both dissuaded the child and it turned out that somebody wanted to come along and adopt, wouldn’t the mother have a veto right under the New York Statute that even though she hadn’t seen the child for ten years?
Robert H. Silk: If it had been found that the mother had abandoned the child, then the mother would have no rights under the New York statute.
Lewis F. Powell, Jr.: Does the statute say that?
Robert H. Silk: Yes.
Lewis F. Powell, Jr.: I think it does.
Robert H. Silk: But anything less than abandonment, any skimpy kind of a relationship which might in New York not constitute abandonment, the skimpy kind of relationship that Mr. Quilloin had with his child, if the mother had that sort of relationship with the child in New York, that would not under New York law constitute abandonment, because --
Lewis F. Powell, Jr.: In this case, relationship is really immaterial except a sort of back ground, isn’t it? Neither of these parents had abandoned their child.
Robert H. Silk: I see the relationship in this case to be the protected interest. The constitutionally protected interest is the right of a parent to raise, to rear, to have the company and companionship of his child. It is a relationship which is based upon the history and upon the facts of this case, and it is a relationship which is protected for the mother in this case and it is not protected for the father.
Warren E. Burger: If you prevail here, how will these rights that you’re claiming to be protective, who is going to decide how often he can see the child? Domestic Relations I suppose, is that right?
Robert H. Silk: Yes, insofar as custody and insofar as visitation is concerned, we are not asking this Court to make any determination. What would happen --
Warren E. Burger: I am asking you the consequence if you prevailed here.
Robert H. Silk: The consequences if we prevail here would be that the matter would go back to the family court and custody would be determined, and visitation would be determined, and support would be determined in the best interest of the child in an equity and fairness to all parties.
William H. Rehnquist: Provided custody would necessarily resolve under your --
Robert H. Silk: No, it would not necessarily resolve at all. If the family court took the case over, the family court would have full power after a hearing and after a trial to turn over custody to the mother with rights of visitation to the father. It would have power to turn over rights of custody to the father with rights of visitation to the mother. It would have a right to mold whatever remedy that it feels proper in the best interest of the child.
Byron R. White: Just like in divorce cases.
Robert H. Silk: Yes, it would be exactly like divorce cases.
Potter Stewart: But it is true Mr. Silk, isn’t it, and I think perhaps I am repeating the question I asked at the outset that if you’re correct, it would follow that at least in the situation that you alleged this situation to be, that the constitution of the United States would absolutely prohibit and prevent the possibility of any adoption of these children, by anybody.
Robert H. Silk: Well it would prevent the --
Potter Stewart: Isn’t that, isn’t that correct?
Robert H. Silk: It would prevent the adoption unless the parents agree that the children should be adopted. There is no reason why they both can not adopt.
Potter Stewart: But if you are correct in your constitutional claim, wouldn’t it follow that the constitution of the United States would prevent the adoption of these children by anybody so long as you and your opponents remain in a litigating posture. Now, if you decide to settle it and one of you -- one of the other decides not to litigate, of course, the case would change. Doesn’t that follow, necessarily?
Robert H. Silk: An adoption which would cause the replacement of a parent who is fit --
Potter Stewart: And that’s an adoption you’ve told us inevitably does.
Robert H. Silk: Well, a parent might consent to it and the other parent might consent to the adoption by the other one, in other words there maybe a reason where they --
Potter Stewart: Well, few people had agreed on this matter, this wouldn’t be a -- ever been a lawsuit and this case wouldn’t be here, I am assuming that you are going to be litigating it, and that you are not change your position and that your adversaries not either.
Byron R. White: That’s where New York leaves divorce parents, isn't it?
Robert H. Silk: That’s exactly where New York leaves divorce parents.
Byron R. White: -- where either parent can veto absent some finding of unfitness.
Robert H. Silk: Well, either parent -- if the parents are divorced, the situation would be the same as it would be here if I should prevail in this case, yes. That is if divorce parents treated their children as my client treated his children and then they could not be replaced by adoption.
Byron R. White: In divorced parents, as long as they haven’t been found to be unfit, each of them, under New York law, can prevent the adoption.
Robert H. Silk: Oh yes without any question whatsoever.
Warren E. Burger: But either one of them can control the custody by exercise of any kind of a veto.
Robert H. Silk: No, if there is a dispute over custody that will be what Court decides will be in the best interest of the child’s right.
Warren E. Burger: If the Court decides it.
Robert H. Silk: Yes.
Potter Stewart: With visitation rights.
Robert H. Silk: With visitation rights, but parental rights preserved.
Warren E. Burger: If the Judge thinks visitation rights are good for the child.
Robert H. Silk: Visitation rights are almost invariably granted to one extent or to another extent in New York depending upon the facts. Sometimes restricted visitation is allowed, but always some visitation is allowed under the worst of circumstances, so that the children will continue to know their roots and will continue to have a relationship with their natural parent, and natural parent will continue to feel that that parent has an offspring and a child that that parent would be able to come and see and to protect and to support and to care for as best that parent could. Now, in this particular case, we have a line drawn on the basis of sex. This line is drawn on the basis of sex to the point where it serves absolutely no purpose. It treats a mother’s relationship with her child in a constitutionally protected sense. The mother after all was unmarried in this case to the father as much as the father was unmarried to the mother, the mother entered this relationship fully aware that the father had a prior un-dissolved relationship which prevented marriage and yet she was willing to do it, and she took the father’s name and she bore two children for the father, and the father and she together lived in a common home and brought these children up. And under New York Law, this has given the mother a protected relationship with the children, and it has given the father absolutely no protection whatsoever. In Stanley against Illinois, and in all of the cases which Stanley against Illinois has cited, both parents have very important protected interest in maintaining their relationships with their children and it is cardinal with this Court and it is cardinal with us as stated against Prince against Massachusetts that the custody care and nurture of the child reside first in the parents whose primary function and freedom include preparation for obligations the state can neither supply nor hinder, and it is in recognition of this that these decisions have respected the private realm family of life which the state cannot enter.
William H. Rehnquist: But that Prince was a case where the mother and father were both united against the state. Here you’ve got a mother and father one of whom the state supports and other of whom it doesn’t support.
Robert H. Silk: But again we are not dealing with custody, we are dealing with termination and rupture of parental rights, and it isn't the mother against the father, it’s a stranger against the father because the mother is not replacing the father as a father, it is the stranger who is taking the father’s place.
William H. Rehnquist: All I am saying is that your quote from Prince is in a context where the mother and father were not separated, they were united in opposing an intrusion of the state. That isn't the case here.
Robert H. Silk: In Quilloin against Walcott, we had very similar situation. In that, the mother was married to the proposed adoptive father and the natural father was trying to prevent the adoption. This Court had that issue before at that time except that it had in a different factual context. In the opinion of Mr. Justice Marshall for this unanimous court, the opinion specifically limited itself to the situation before the Court and the opinion in Quilloin did not say that because it happen to be the mother and her husband who are trying to adopt, it said because the natural father did not have a relationship to his child which was constitutionally protected and --
Potter Stewart: What would be your view if you had an infant, two or three weeks old or two or three months old, just old enough to be put out for adoption? Would you take the view and so the no permanent relationship really could have formed yet between the natural father and the infant, and in that context would you say the natural father has an absolute detail as a matter of constitutional right?
Robert H. Silk: I would say that the natural father, if he had played a role even as brief as it possibly could have been, a parental role, a parental relationship --
Potter Stewart: If he’s the natural father and he paid the hospital bills and he objected to the person to whom the mother wants to place the child for adoption, does he have a constitutional right?
Robert H. Silk: And he was barely able although he tried to establish some sort of connection with the child and shows some concern.
Potter Stewart: He just doesn’t want -- he doesn’t want the adoption to be placed for that particular person.
Robert H. Silk: Yes, I would say that he did, because he had an interest in that child which was as young and new as the child was itself and he couldn’t possibly have established a stronger relationship than he did and he tried and if he made the effort, then I think that the child was lucky to have a concerned father who wanted to look after this child’s interest, and if that --
Potter Stewart: I am not talking about looking after his interest, I just said he have a standing, does he have an absolute constitutional right to object, and your answer is yes.
Robert H. Silk: My answer is yes, again depending on the facts of that particular relationship.
Lewis F. Powell, Jr.: Mr. Silk, may I ask you somewhat related question? Would you be satisfied if the New York law were amended to provide equal rights for both the mother and the father and the rights essentially said that neither had an absolute right to veto an adoption each would be entitled to a hearing, and the decision would turn on what was found to be in the best interest of the child.
Robert H. Silk: No, I would not.
Lewis F. Powell, Jr.: That would meet your equal protection issue, wouldn’t it?
Robert H. Silk: It would not be meet my due process issue.
Lewis F. Powell, Jr.: But it would meet your equal protection issue?
Robert H. Silk: Well, if they’re equal, at least they would be equal but it would not --
Byron R. White: If it applied then to married and divorced.
Robert H. Silk: They would have to apply to both, I understood the question to apply to all parents.
Byron R. White: Yes.
Robert H. Silk: That’s the way I understood it. It would meet the equal protection argument, but it would not meet the due process argument, and the due process argument is a very important argument because it is our contention that state power does not exist to break into the private relationships of families and of parents and children and just tear them apart because somebody happens to think it’s in the best interest to replace perfectly fit and caring father with somebody else, and the state doesn’t have a right to go into this area. This is a sacred area.
Thurgood Marshall: I didn’t understand the question would be the -- the state went in, and I understood that my brother Powell’s question was the two parties together go into the state and ask for this.
Robert H. Silk: If the state in this particular case has entered it, of course, through its courts and through its laws. And although the parties have individually invoked the assistance of the state and the Appellant is now invoking the assistance of the constitution of the United States, we are still facing state action and it is State action that is broken these children, taken these children from their parents. From one of their parents who has loved them and I say that a law which provides for a sex discrimination of this type in this case is obsolete. That it bares no relationship to a substantive purpose which a state has any right to defend, which has any right to promote. It is not in the interest of the state to promote the adoption of children by their mothers and not by their fathers. Thank you Your Honor my time has expired.
Warren E. Burger: Mr. Schulslaper.
Morris Schulslaper: Mr. Chief Justice and may it please the Court. If Mr. Caban appeared before the Surrogate’s Court of Kings County as he is portrayed today and the advisory position compelled by Section 111 of the Domestic Relations Law automatically, because the first principle is the best interest of the child neither the interest of the father putative or real, or the interest of the mother, but the interest of the child, then it is very possible that the surrogate would have refused to allow this adoption. If he were able to establish the substantiality that he projects now before the Court, that could have happened. If he were able to establish this to the satisfaction of the Appellate Division of the Second Department, there is little question in my mind that that department would not have held unanimously against Mr. Caban, but under the authority of Jerald JJ, and I believe the citation is 61 AD 2521, it could have reversed the surrogate; it could have denied this adoption, not because the interests of a father were there involved, but because the interests of the child were there involved. And because in Jerald on an advisory position they found that the father was involved, a fruitful worker, concerned, he traveled from California, he sent cards, he sent gifts, that the adoptive parent was not quite equal to low circumstances.
William H. Rehnquist: You are telling us that the New York definition of the best interest of the child may include the concern of the natural father.
Morris Schulslaper: They include all facets. All facets, any triable issue, any factor which the court as a fact can find would be injurious to the child. It’s not a simple statement of the mother. If in fact --
Warren E. Burger: In other words you are telling that there is not a just an automatic veto.
Morris Schulslaper: Absolutely not Your Honor. The instant you produce the standard. The best interest of a child Mr. Caban had the right and he was granted the right to be heard fully. Mrs. Maria Mohammed was required to establish that that adoption was in the best interest of the two children, but as he is portrayed today, he was not portrayed before the Surrogate of Kings County Your Honor. So, Mr. Caban who appears today --
John Paul Stevens: Counsel before you go into the fact, let me just question one statement you made. Supposing he had tried to adopt with his new wife and the court had been persuaded that it would have been in the best interest of the child to allow that adoption, just assume that, even though I know this case in your view is different. It would nevertheless be true, would it not that the wife had an absolute veto over such an adoption?
Morris Schulslaper: The use of the word veto troubles me Your Honor.
John Paul Stevens: Well, an unqualified right to prevent the adoption for taking place.
Morris Schulslaper: Could he -- could she have prevented the adoption? The answer was yes, she could have prevented the adoption unless the facts were produced to persuade the court that she was totally, her presence, her custody was inimical to the best interest of the child, that she had either abandoned him or for whatever reason produced before the court on evidence, on an adversary circumstance, she should not have the right to continue custody and parenthood of that child.
John Paul Stevens: Well, that was -- that would be only under the statute if one of the --
Morris Schulslaper: That is correct.
Potter Stewart: -- if terms and conditions of Section 6 apply.
Morris Schulslaper: That is correct.
Potter Stewart: It would be a two-step process.
Morris Schulslaper: Exactly.
Potter Stewart: The first step would be one of the dispensing conditions.
Morris Schulslaper: Exactly, under low circumstances, and her circumstance, because she has the right or you require her consent, there is little question that you would have produce strong evidence, and there was a little question that under least circumstances, the state, whether it was a State of Georgia under Quilloin or the State of New York has the right to accept what Mr. Justice Burger said in his dissenting opinion in Stanley versus Illinois.
Warren E. Burger: That won’t help you very much counsel; that was dissenting opinion.
Morris Schulslaper: I quite understand it was a dissenting opinion Your Honor, but I point out, as Mr. Justice Marshall pointed out that this was not an adoption proceeding. This was not a circumstance between father and mother whether they were putative or real. This was an action against the state in the presence of a living viable concerned mother. Under low circumstance, your dissenting opinion holds very, very strongly in favor of Mrs. Mohammed. The fact is that historically we have accepted that the mother is the more dependable person than certainly against putative father, who has had the opportunity and certainly in this case has had the opportunity to look for a divorce, to sanctify the relationship that he now holds so dear before this Court. The same man who found it most convenient on the facts to very expeditiously obtain a divorce after this woman was married. This woman did no more and that relation --
Thurgood Marshall: How important are these facts to this statute which we are talking about? Isn’t it true that if this man, this very petitioner in this case apparently was the highest pillar in his church, and who loved -- the only thing he loved more than children were his own children, and he spent 94 and 99 percent of the money on his children. He is still -- the statute would apply to him wouldn’t it?
Morris Schulslaper: That is correct Your Honor.
Thurgood Marshall: So what’s the difference in this case? We are talking about this statute.
Morris Schulslaper: That is correct Your Honor. However, while I don’t want to go into the facts, I‘ve exposed them on in my brief. Certain factors have come up in the Appellant’s reply brief and certain declarations were made here, and I believe that it’s essential for this Court consideration to point out several factors. He claims that he had custody of these two children for two months before the adoption. The circumstances of his so-called custody should be known to the Court. I am aware that the court realizes that he traveled to Puerto Rico, and brought the children back under the guys of parenthood. He never had it. The closest he came to an acknowledgement of parenthood was that after three months time at the insistence of Mrs. Mohammad, he allowed his name or he allowed the Board of Health to record him as the father on the birth certificate.
John Paul Stevens: Do I understand counsel; we are you now denying paternity here?
Morris Schulslaper: I am not; I am trying to point out that this man’s interest was not of the great depth that he now describes.
John Paul Stevens: Well, a little while ago you used the word putative father.
Morris Schulslaper: Yes, reputative, a reputed father.
John Paul Stevens: You said putative.
Morris Schulslaper: That is correct Your Honor, as I understand that the word by definition is reputed.
John Paul Stevens: Counsel if we could get away from the facts of this particular case for a moment, what do you say as to what is the justification for a rule that treats the mother’s power and the attempt by the father, the natural father to adopt differently from the father’s right, to object to the mother’s attempt to adopt?
Morris Schulslaper: This Court has so held them Quilloin versus Walcott that the father had less veto power --
Warren E. Burger: Counsel, you better stay near the lectern, so that we can all hear.
Morris Schulslaper: That this -- that Georgia had the power to give less veto power, to use that word, to the putative father Leon Quilloin than what it was required to give to a father who had been once married, but perhaps divorced.
Thurgood Marshall: In which opinion it was announced?
Morris Schulslaper: That would be Quilloin versus Walcott. This Court specifically said, “As long as it was interested to the child’s best interests, then it had the right to give less veto power to the reputed or putative father”, the unmarried father or the natural father, if you will. The State of New York has that same right in the best interest of the child. The problem now simply is, is this a presumption. The fact is it is not an irrebuttable presumption, that this man, Caban, had the right to walk into court -- and over 447 pages, 375 of which are testimony. He had the right to rebut the presumption of the statute if it be held, if it be so held as a presumption. This was not concluded against him. He was simply not wiped out of the position; he had the right to be heard, and as New York State applies it, where the right was substantiated, where his position was substantiated or whether -- forgive me --where the father was found to be of substantial interest, the courts did not allow that adoption against the putative father to go forth. The state has that right. Now this Court could interfere if it found a presumption under Stanley. It cannot interfere on the basis of Quilloin unless these facts, and the only reason I can think of the case being before this Court is the challenge to the circumstance by my adversary that there was substance to his relationship. The record was before the Appellate Division as I said, before the Court of Appeals, the very same justices who dissented in the case of Malpica-Orsini herein known as Orsini-Blasi joined the majority, they joined --
Potter Stewart: That might have been because they thought that despite their previous dissent, the law of New York was now established.
Morris Schulslaper: That might very well have been and it might just as well have been on this record, Your Honor. I have no way of knowing that. But on this record, there was no substance and the record so shows it. Now he claims that he purchased the house and that, as a result of that fighting the case before this Court and others, he has been rendered -- he has impoverished himself. He claims that he was a married man at the time that he made application for adoption and reversed from the putative mother. Well, it’s important that this Court know the facts. He took the children back to the City of New York by chicanery, using his own parents to persuade the maternal grandmother who had lawful custody for good and valuable reason to bring them to their home. His visitation rights were never interfered with, nor were his visitations interfered with here. When he called -- when he had notified Puerto Rico that he was going to go down there, I am afraid the kids were made available to him. He brought these children back from Puerto Rico sometime about the 15th. He withheld these children from the mother. His woman -- his wife subsequently his wife Neena actually offered to assault the mother of these children when she attempted to take the children or even talk to the children. It was not until the 25th that she was able, she found the children on the 24th. On the 25th of November 1975, she appeared before the family court. There she was given a date by the family court until the 18th day of December. On the 17th day of December, she gave birth to a child by her now husband. The first time she was able to regain that custody was on the 15th day of January. Mr. Caban married Neena on the 16th day of December 1975. On the 18th he was scheduled to go before the court for a hearing. The premises he described is purchased for the need of these children, he contracted for on the 29th day of the same month December. Subsequently, one year after this case was decided against him and I trust that the Court has the entire record from the Court of Appeals, he made application before that Court to be allowed to proceed as a poor person. He claims before this Court that he was so allowed to do. He was not under the order of the Court.
Potter Stewart: Mr. Schulslaper do you think the Constitution of the United States requires this Court to go into the all of those facts going to the substantiality of the husband’s interest in his children, maybe under Quilloin it does, but that means that the -- that under the constitution we are required to more or less act as a domestic relations court, which I wonder if many of my colleagues signed on for when they accepted their commissions.
Morris Schulslaper: Your Honor, thank you very much. Under the circumstances I respectfully rest on my belief, and I differ to the Attorney General of the State of New York for the balance of the time. Thank you.
Warren E. Burger: Mr. Strum, you are going to tell us about the law of this case, the statutes are you?
Irwin M. Strum: Your Honor, I am not going to discuss the facts. That is correct. Mr. Chief Justice and may it please the Court. We have heard the attorneys for two adversaries talk about their clients’ rights. Who speaks for the rights of the two children, David and Denise, who spoke for them below? Well, I respectfully submit that the surrogate Kings County was charged with the responsibility of determining how those children should be protected. I submit the statutes of the State of New York gave him that right and gave him the opportunity to say in the best interests of these children, I will permit this adoption. I come to this Court today not to represent any litigant and not to argue on behalf of either a father or a mother, but to argue on behalf of these children and their rights. And the law of the State Of New York which permits the Courts to say, in the best interests of these children, we will permit an adoption.
Warren E. Burger: What do you have to say about the constitutional aspect of a statute which gives a different right to the natural father from the rights given to the natural mother? That’s really the legal question, isn’t it?
Irwin M. Strum: I believe that the State of New York has the right to make a distinction between a natural mother and a natural father where a child is born out of wedlock. This Court has time and again approved distinctions between natural mothers and natural fathers in a situation where the state has an interest to protect the children. I don’t think the difference, as provided by the New York Law, is very severe, because the ultimate test in all situations is the best interest of the children.
Byron R. White: Well -- are you suggesting that the state can have a law that said that the child could be removed from the care and custody of both parents over their objection as long as the state concluded that it was in the best interests of the child?
Irwin M. Strum: I would say this Your Honor.
Byron R. White: And without some finding of unfitness?
Irwin M. Strum: No. There would have to be a finding of unfitness.
Byron R. White: Well then why -- how -- why doesn’t there have to be some finding unfitness for the father here?
Irwin M. Strum: Because I don’t believe the father stands in the same shoes as the mother. I don’t believe he is a member of a protected class.
Byron R. White: So if he was a, so you think -- if he wanted to adopt, if the father wanted -- the unmarried father wanted to adopt over the objection of the mother, the state could not permit the adoption without some finding of unfitness on the mother.
Irwin M. Strum: There would have to be some indication or proof. I don’t know if it would have to reach as far as unfitness Your Honor.
Byron R. White: It would be the same thing, and I take that the law is where the parents were married but are divorced.
Irwin M. Strum: I would say so, yes.
Byron R. White: In that case either parent has --
Irwin M. Strum: I wouldn’t use the word veto but either parent, under certain circumstances and under certain statutory --
Byron R. White: Well, either parent there has more of a right than this father does.
Irwin M. Strum: That’s correct Your Honor, and I concede that, but I don’t think that --
Thurgood Marshall: That gives the wife the veto but -- and denied to the father.
Irwin M. Strum: Yes.
Thurgood Marshall: You are going to get the Stanley before you quit, aren’t you? Let me know when you get there.
Irwin M. Strum: What was that?
Warren E. Burger: The Stanley Case.
Thurgood Marshall: Against Illinois.
Irwin M. Strum: I don’t think Stanley versus Illinois has any relationship, has any relationship to the factual situation or the legal situation here. Here, we’re dealing with a situation where we have a competing interest between a mother and a father. Now, there is no doubt that these people have an interest in the child.
Thurgood Marshall: Well, I understood that the mother wasn’t adopting this child.
Irwin M. Strum: Yes she was, the mother and her husband.
Thurgood Marshall: Mother and the husband.
Irwin M. Strum: Yes, which would be the normal procedure in the case of a natural mother, and I think the Court has a right to say that in order to benefit the child, the child, we will allow such an adoption.
Thurgood Marshall: Are you talking about a statute that applies to any situation?
Irwin M. Strum: That’s correct Your Honor. In Quilloin this Court --
Thurgood Marshall: And that’s along with the statute that says that strictly on sex and nothing else, you say there’s nothing wrong with that statute.
Irwin M. Strum: It is not on the basis of sex; it is on the basis of a mother or a father and I think Your Honor --
Thurgood Marshall: Do you know any mothers that are fathers?
Irwin M. Strum: No Your Honor, [Laughter] but I think there is a distinction, and I think this Court has recognized it, between natural mothers and natural fathers where they were not married, and I think that’s the important factor here. I don’t think that this man has any paternal rights in the child. I think the child is somebody who has to be protected in the state as long as it’s reasonable in doing so can pass a law which permits such protection. I think the state can make a distinction between a natural father and a natural mother, where they are not married and I think this Court recognized in Quilloin that a father of a child born out of wedlock does not have the same status as a father of a child born in wedlock.
Thurgood Marshall: I am familiar with that case, as I understand, it left this case completely out, didn’t it, didn’t it?
Irwin M. Strum: No, it really didn’t leave this case out. It may not have dealt specifically with this case.
Thurgood Marshall: (Inaudible)
Irwin M. Strum: Well, I think very frankly Your Honor. This case is a situation where you have a mother and a father who are not married.
John Paul Stevens: General Strum, assume a case in which say a child is six years old, spent three years with the father, three years with the mother, no marriage. What is the justification for giving them different rights when they get into a battle with this one?
Irwin M. Strum: I don’t say, I don’t say that their rights are different, I say to you the test will ultimately be the same, the best interest of the child.
John Paul Stevens: Well, I thought everyone had agreed that even if the best interest of child might lie with the father, the mother could still, assumedly she had abandoned all the rest of it, she could still object. Isn't there a difference under New York statute in the position of the mother and the position of the father?
Irwin M. Strum: Yes, there is.
John Paul Stevens: And assuming that equal time with the child and all the rest of it, six year old child, what's the justification for the difference?
Irwin M. Strum: The difference is that the legislature of the State of New York has determined that a natural mother, absent special circumstances, bears a closer relationship with her child by the very fact of being a mother than a father does. But there is a difference between a mother and a father, vis-à-vis the relationship of the child, vis-à-vis the feelings to the child, vis-à-vis living together and after --
John Paul Stevens: You’re saying legislatures determine that but what's the basis for that determination? How do you support that?
Irwin M. Strum: I think that’s the experience of mankind.
John Paul Stevens: I see.
Irwin M. Strum: As long as a statute bears a reasonable relationship and the object of the legislation is to protect the children, and I don’t think that the father is in a protected class, I don’t think it is for this Court to say that the legislation is improper. I think the legislature of a state has a right to set up these standards, make these requirements, and make these rules. And I think as long as these rules and regulations and statutes bear a reasonable relationship to everyday life, and the interest of the child, I think that is sufficient. We cannot have a perfect statute. And I am not here to claim that our statute is perfect, but as long as the test is the best interest of the child, I think that is all that is required. I don’t think, as I’ve indicated before that the mere accident of birth that a man is a father of a child gives him rights to control the destiny of that child where the best interest of the child call for another type of action, and I don’t feel that under the circumstances that this statute should be thrown out merely because the man comes here and he says, well, I really am interested in this kid. I think there was a full hearing; this was not a case where due process --
Byron R. White: Well, are you suggesting that there were some findings made that he had abandoned the child?
Irwin M. Strum: I am suggesting that the surrogate had before him all of the facts concerning the relationship --
Byron R. White: Yeah, yeah, but are you suggesting that he made any findings about unfitness.
Irwin M. Strum: I am not suggesting he made a specific finding of abandonment, no.
Byron R. White: Or unfitness or anything?
Irwin M. Strum: Or unfitness. I am suggesting that he made --
Byron R. White: Are you suggesting there should be -- must be facts in the record to warrant such a finding?
Irwin M. Strum: I am suggesting that there must be facts in the record to warrant a finding as to the best interest of the child. And all of those facts are facts which he had before him including the relationship of this father to the child, and including what had happened between the father and the child, what had happened between the father and the mother. All of this was before the court. The court waived these facts and determined the best interest of the child. I see that my time is up.
Warren E. Burger: Thank you gentlemen. The case is submitted.