[*] This Comment is the culmination of a re search project that I began in 1994 and is why I practice family law and advocate for fathers' rights today. I thank my family for being supportive and loving while we endured the years of schooling; without them, I could not have finished that endeavor or this project. I thank Professor Barbara Busharis for unwittingly planting the seed that inspired me to begin this project, for patiently listening to me while my thoughts matured regarding the issues, and for the time it took her to review and discuss at least four drafts throughout the years. I thank Professor Jean Sternlight for her guidance and encouragement while I worked on the project as a directed individual study. Return to text.

[1] See Lehr v. Robertson, 463 U.S. 248, 262-63 (1983). Return to text.

[2] See id. at 261. Return to text.

[3] It has long been recognized that states are the arbiters of family law. See Ankenbrandt v. Richards, 504 U.S. 689, 693-703 (1992) (explaining the domestic relations exception to federal court jurisdiction); Barry v. Mercein, 46 U.S. 103, 120 (1847) (disavowing federal jurisdiction over custody matters because they are not reducible to pecuniary value, thus leaving such matters to state jurisdiction). Recently, the Supreme Court has seemed satisfied that states are controlling domestic matters because it has denied certiorari to several at-birth adoption cases. See In re Adoption of Baby E.A.W., 658 So. 2d 961 (Fla. 1995), cert. denied 116 S. Ct. 719 (1996); In re Kirchner, 649 N.E.2d 324 (Ill. 1995), cert. denied 515 U.S. 1152 (1995); In re Adoption of J.J.B., 894 P.2d 994 (N.M. 1995), cert. denied 116 S. Ct. 168 (1995). Therefore, it is appropriate for Florida to revise its statutory scheme to protect an unwed father's inchoate rights and to grant him greater protection than that afforded by the federal Constitution. See Beagle v. Beagle, 678 So. 2d 1271, 1275 (Fla. 1996) (holding that the fundamental liberty interest in paren ting is specifically protected by Florida's express constitutional right to privacy and that such right is a "guarantee of greater pro tection than is afforded by the federal [C]ons titution"). Return to text.

[4] 658 So. 2d 961 (Fla. 1995), aff'g 647 So. 2d 918 (Fla. 4th DCA 1994). Return to text.

[5] See In re Adoption of Baby E.A.W., 647 So. 2d 918, 941 (Fla. 4th DCA 1994) (Farmer, J., dissenting). Return to text.

[6] See id. at 920, 941. Return to text.

[7] See id. at 941. Return to text.

[8] See id. at 941-42. Return to text.

[9] See E.A.W., 658 So. 2d at 969 (stating that the mother felt that the father's phone calls were only made to aggravate her); E.A.W., 647 So. 2d at 943 (Farmer, J., concurring) (stating that after the mother moved out, she tried to avoid the father). Return to text.

[10] See E.A.W., 647 So. 2d at 942 (Farmer, J., concurring). Return to text.

[11] See id. Return to text.

[12] See id. at 943. Return to text.

[13] See id. Return to text.

[14] See id. Return to text.

[15] See id. Return to text.

[16] See E.A.W., 658 So. 2d 961, 963 (Fla. 1995), aff'g 647 So. 2d 918 (Fla. 4th DCA 1994). Return to text.

[17] E.A.W., 647 So. 2d at 943-44 (Farmer, J., concurring). On September 3, Gary filed a motion to set aside the ex parte order. See id. at 944. Two weeks later, the trial judge set aside the ex parte order and scheduled an evidentiary hearing on whether Gary's consent should be waived. See id. At the hearing, the trial court decided that Gary had not abandoned the child and refused to waive his consent. See id. The next day, Gary filed a habeas corpus petition seeking custody of three-month-old Baby Emily. See id. However, the intermediary also sought a rehearing on the abandonment issue. See id. The rehearing was not scheduled until February 1993. See id. Then, after listening to most of the evidence, the judge set a new date to resume the testimony; the hearing finally resumed on August 3, 1993. See id. at 945. At that hearing, the trial judge held that Gary's prebirth conduct was proof that he had abandoned Baby Emily. See id. Return to text.

[18] See id. Return to text.

[19] See id. Return to text.

[20] See E.A.W., 658 So. 2d at 967. Return to text.

[21] This Comment does not pertain to unwed fathers who merely wish to block the adoption of their child by third parties but are not willing to assume full custody of the child. See Lehr v. Robertson, 463 U.S. 248, 253 (1983) (finding that a putative father could not block adoption when he only sought a paternity determination, a support order, and visitation); Quilloin v. Walcott, 434 U.S. 246, 249 (1978) (calling the father's efforts to establish paternity and visitation, but not to gain custody, an attempt to acquire "veto authority"). Return to text.

[22] 262 U.S. 390 (1923). Return to text.

[23] These opinions relate only to biological parents. The Court did not review constitutional protection afforded to "psychological" parental relationships until 1977. See Smith v. Organization of Foster Families, 431 U.S. 816, 845-46 (1977). In Smith, the Court recognized that any relationship formed between a foster parent and foster child was subordinate to the interests of biological parents and not deserv ing of constitutional protection because it was only a contractual relationship created by the state. See id. at 845-47. Return to text.

[24] See Carolyn Wilkes Kaas, Breaking Up a Family or Putting It Back Together Again: Refining the Preference in Favor of the Parent in Third-Party Custody Cases, 37 WM. & MARY L. REV. 1045, 1071-72 (1996). Kaas argues that the federal Constitution protects two types of fam ily interests. The first is the interest of the family unit in protection from outside intervention; the second is the interest each individual parent has in establishing and protecting his parental relationship with his children. See id. Return to text.

[25] Meyer, 262 U.S. at 399 (recognizing the historical significance of family relationships). Return to text.

[26] See e.g., Wisconsin v. Yoder, 406 U.S. 205, 234-35 (1972) (holding unconstitutional Wisconsin's compulsory school attendance statute when applied to Amish children educated at home); Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (holding unconstitutional a statute requiring parents to send their children to public schools). But see Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058, 1066 (6th Cir. 1987) (holding that a requirement that children read certain materials in public schools was not unconstitutional although against the parents' religious training). Return to text.

[27] See e.g., Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (holding unconstitutional a Connecticut statute that forbade the use of contraceptives by married persons); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (holding unconstitutional a statute requiring sterilization of certain convicted felons). Return to text.

[28] See e.g., Roe v. Wade, 410 U.S. 113, 153 (1973) (holding that the right of personal privacy encompasses a woman's qualified right to decide whether or not to have an abortion); Eisenstadt v. Baird, 405 U.S. 438, 445-46 (1972) (relying on Griswold to hold unconstitutional a statutory ban on the distribution of con traceptives to unmarried persons); Stanley v. Illinois, 405 U.S. 645, 649 (1972) (holding unconstitutional an Illinois statute that con clusively presumed that an unmarried father was unfit to have custody of his child). Return to text.

[29] See Caban v. Mohammed, 441 U.S. 380, 393 (1979) (holding unconstitutional a New York adoption statute that did not require an unwed father's consent to adoption); Stanley, 405 U.S. at 649. Return to text.

[30] See Roe, 410 U.S. at 153; see also infra notes 34-39 and accompanying text. Return to text.

[31] See M.L.B. v. S.L.J., 117 S. Ct. 555 (1996) (involving procedural due process rights in the termination of a mother's parental rights); Planned Parenthood v. Casey, 505 U.S. 833 (1992) (qualifying a mother's substantive due process rights in a procreation decision); Rivera v. Minnich, 483 U.S. 574 (1987) (involving an unwed father's substantive due process rights in a paternity determination); Santosky v. Kramer, 455 U.S. 745 (1982) (incorporating a married parents' substantive due process rights in termination proceedings); Little v. Streater, 452 U.S. 1 (1981) (determining an unwed father's procedural due process rights in a paternity determination). Return to text.

[32] See Michael H. v. Gerald D., 491 U.S. 110 (1989); Lehr v. Robertson, 463 U.S. 248 (1983); Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (holding constitutional a Georgia adoption statute that applied the "best interests of the child" standard). Return to text.

[33] See Kaas, supra note 24, at 1076. Such interests include the state's protection of the welfare of the child and its preference that children be raised in a traditional, two-parent family setting. See infra Part II.C. Return to text.

[34] See Casey, 505 U.S. at 853; Lehr, 463 U.S. at 260 n.16 ("The mother carries and bears the child, and in this sense her parental relationship is clear.") (quoting Caban, 441 U.S. at 397 (Stewart, J., dissenting)); Smith v. Organization of Foster Families, 431 U.S. 816, 862-63 (1977) (Stewart, J., concurring); Mary L. Shanley, Unwed Fathers' Rights, Adoption, and Sex Equality: Gender-Neutrality and the Perpetuation of Patriarchy, 95 COLUM. L. REV. 60, 81-85 (1995). Return to text.

[35] See Casey, 505 U.S. at 852. The Court explained a woman's liberty interest in her child:

The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture.
Id. See also Caban, 441 U.S. at 397 (Stewart, J., dissenting) ("The mother carries and bears the child[;] in this sense her parental relationship is clear."); In re Adoption of Doe, 543 So. 2d 741, 749 (Fla. 1989) (Barkett, J., concurring) ("I believe that we have correctly construed and applied 'abandonment' . . . [h]o wever, the precedent set by this case cannot carry over into those situations involving the prenatal responsibilities of mothers."). Return to text.

[36] See Casey, 505 U.S. at 852. Return to text.

[37] See id. at 879 (reaffirming the holding in Roe v. Wade, 410 U.S. 113, 164-65 (1973), that subsequent to viability, a state may regulate and even proscribe abortion). Return to text.

[38] See M.L.B. v. S.L.J., 117 S. Ct. 555, 564 (1996) (discussing a mother's interest in associational rights with her child); Casey, 505 U.S. at 895 (holding invalid a statutory provision that required consent to an abortion by the husband of the woman seeking the procedure). Return to text.

[39] The Casey Court made it clear that as between the married father and married mother, the mother's decisions regarding the treatment of the fetus are untempered. See Casey, 505 U.S. at 898. The Court stated:

If a husband's interest in the potential life of the child outweighs a wife's liberty, the State could require a mar ried woman to notify her husband before she uses a post-fertilization contraceptive . . . before engaging in conduct causing risks to the fetus . . . before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband's interest in his wife's reproductive organs.
Id. During the short period of time past viability and before birth, the state's interest in the fetus overcomes the mother's authority to choose abortion, see Casey, 505 U.S. at 870, but she can plan to place the child for adoption. Return to text.

[40] See Lehr v. Robertson, 463 U.S. 248, 261 (1983). But see Michael H. v. Gerald D., 491 U.S. 110, 123 (1989) (indicating that an unwed father's biological connection and his assumption of responsibility will not overcome the state's interest in legitimating a child and providing a child with an intact family unit). Return to text.

[41] See Michael H., 491 U.S. at 129 (holding that a California statute utilizing an irrebuttable presumption of legitimacy barring paternity proceedings by a putative father does not violate the putative father's procedural or substantive due process rights or the Equal Protection Clause when the child is born into a marital union); Lehr, 463 U.S. at 263 ("The most effective protection of the putative father's opportunity to develop a relationship with his child is provided by the laws that authorize formal marriage and govern its consequences."); id. at 265 (holding that a biological father's due process and equal protection rights were not violated when a New York statute did not allow him to veto adoption by the biological mother's husband when he had not married the mother or legally sought to protect his parental rights by filing with the putative father registry); see also In re Adoption of Baby E.A.W., 658 So. 2d 961, 971 (Fla. 1995) (Kogan, J., concurring in part, dissenting in part) (stating that Florida law "presumes that a man married to the biological mother is in fact the legal father of the child, based in part on the child's interest in legitimacy"); Department of HRS v. Privette, 617 So. 2d 305, 308 (Fla. 1993) (explaining that when a child is born during a marriage, the presumption of legitimacy is so "weighty that [it] can defeat even the claim of a man proven beyond all doubt to be the biological father"); Brown v. Bray, 300 So. 2d 668, 670 (Fla. 1974) (comparing custody rights of presumed and putative fathers during divorce and paternity actions and construing as constitutional Florida's paternity statute because, under the statute, a court could award custody to an unwed father who proved himself fit to take custody). Return to text.

[42] See Lehr, 463 U.S. at 262. Return to text.

[43] See id. Return to text.

[44] See id. at 256 (explaining that a father's opportunity interest in a relationship with his child is constitutionally protected and that state law determines the final outcome of legal problems arising in familial relationships); Caban v. Mohammed, 441 U.S. 380, 394 (1979) (holding that not requiring an unwed father's consent to adoption when he had formed a relationship with his children violated the Equal Protection Clause); Stanley v. Illinois, 405 U.S. 645, 649 (1972) (holding that the pre sumption of an unwed father's unfitness violat ed the Due Process and Equal Protection Claus es); see also Adoption of Michael H., 898 P.2d 891, 894-95, 901 (Cal. 1995) (explaining the relationship between the Fourteenth Amendment and a California law and holding that because the father had not taken adequate steps to transform his inchoate interest into a constitutional right that he was not required to consent to the at-birth adoption of his child). Return to text.

[45] 405 U.S. 645 (1972). Return to text.

[46] See id. at 650. Return to text.

[47] See id. at 657. Return to text.

[48] See id. at 658. Return to text.

[49] 441 U.S. 380 (1979). Return to text.

[50] See id. at 385. Return to text.

[51] See id. at 387. Return to text.

[52] 434 U.S. 246 (1978). Return to text.

[53] See id. at 254. Quilloin did not challenge his procedural due process rights because he received notice of the proceedings and was heard on his petitions. See id. at 253. Return to text.

[54] See id. at 248-49, 250. Under the Georgia statute at issue, an unwed father's consent to adoption was not required unless he had married the mother, acknowledged the child as his own, or obtained a court order declaring the child legitimate. See id. Return to text.

[55] See id. at 253-54. Return to text.

[56] See id. at 251-52. Return to text.

[57] See id. Return to text.

[58] See id. at 255-56. Return to text.

[59] 463 U.S. 248 (1983). Return to text.

[60] See id. at 254. Return to text.

[61] See id. He further argued that New York's favoritism toward mothers in the classification of parents required to consent to an adoption discriminated against unwed fathers. See id. at 266. Lehr argued that because he had filed for a paternity determination and visitation that he should have been given notice of the impending final adoption hearing. See id. at 252. Return to text.

[62] See id. at 252. Return to text.

[63] See id. at 253-54. Return to text.

[64] Lehr did not have a "significant custodial, personal, or financial relationship" with his child and had not established legal ties to her until she was two years old. Id. at 262. Return to text.

[65] See id. at 268. Return to text.

[66] 491 U.S. 110 (1989). Return to text.

[67] See id. at 119-20. The California statutory provision provided that only the married father and the mother could rebut their child's presumption of legitimacy. See id. at 115. Michael H.'s daughter was conceived while the biological mother was married to another man, Gerald D., but paternity tests proved with a 98.07% probability that Michael was the child's father. See id. at 114. When the daughter, Victoria, was 18 months old, Michael filed a paternity action and sought to establish his visitation rights. See id. Michael was able to visit with Victoria once before filing the paternity action. See id. The mother often trav eled and lived with three different men, in cluding Michael, her husband, and another man, in various "quasi-family units" during the child's life. See id. at 114-15. After the paternity action was filed, the mother and Victoria lived with Michael until the mother reconciled with her husband. See id. at 115. Return to text.

[68] Id. at 124, 127. Return to text.

[69] See id. at 130. Return to text.

[70] See supra notes 38-44 and accompanying text. Return to text.

[71] See supra notes 45-65 and accompanying text. Return to text.

[72] See Michael H., 491 U.S. at 128-29 (citing Caban v. Mohammed, 441 U.S. 380, 397 (1979) (Stewart, J., dissenting) (asserting that a legal tie to the biological mother may "appropriately place a limit on whatever substantive constitutional claims might otherwise exist"). Return to text.

[73] See Meyer v. Nebraska, 262 U.S. 390, 401 (1923). Return to text.

[74] See Wisconsin v. Yoder, 406 U.S. 205, 231-32 (1972) (rejecting standardization through compulsory education until 16 years old regardless of a family's religious convictions); Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (rejecting standardization through not allowing married couples to decide whether to forego having children); West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (rejecting standardization through requiring the flag salute in public school when the par ents objected on grounds of being Jehovah's Witnesses); Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925) (rejecting standardization through requiring public education rather than private); Meyer, 262 U.S. at 402 (rejecting standardization through forbidding the teaching of any language other than English). Return to text.

[75] See Meyer, 262 U.S. at 401 ("[T]he State may do much . . . to improve the quality of its citizens, . . . but the individual has certain fundamental rights which must be respected."). Return to text.

[76] Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ("It is cardinal with us 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."). Return to text.

[77] 405 U.S. 645 (1972). This case concerned an unwed father's due process right to a dependency hearing regarding parental fitness before terminating his rights to custody of his dependent children whose natural mother had died. See id. Return to text.

[78] Id. at 652. Return to text.

[79] See id. at 652, 656-57. The State argued that men are not naturally inclined to rear children and that putative fathers are generally disinterested in their children. See id. at 654, nn.5, 6. Return to text.

[80] See id. at 652-53. Return to text.

[81] See id. The Court also reasoned that the administrative and pecuniary burden of requiring individualized hearings would be slight because "[i]f unwed fathers, in the main, do not care about the disposition of their children, they will not appear to demand hearings." Id. at 657 n.9. Return to text.

[82] See Caban v. Mohammed, 441 U.S. 380, 388 (1979). Return to text.

[83] See id. at 391-92. Return to text.

[84] Id. at 392. Return to text.

[85] See Quilloin v. Walcott, 434 U.S. 246, 256 (1978); Lehr v. Robertson, 463 U.S. 248, 267-68 (1983); Michael H. v. Gerald D., 491 U.S. 110, 124 (1989). Return to text.

[86] 431 U.S. 816 (1977). Return to text.

[87] See id. at 845. The foster parent relationship is a matter of positive state law and any expectations and entitlements inherent in that relationship are derived only from state statutes. See id. at 845-46. Return to text.

[88] Id. at 846. Return to text.

[89] See In re Adoption of Baby E.A.W., 658 So. 2d 961, 972 (Fla. 1995) (Kogan, J., concurring in part, dissenting in part) (reviewing the three types of "approaches"); Kaas, supra note 24, at 1064 (explaining "parental rights," best interests, and the "hybrid" standards). The "biological rights" doctrine is also called the "parental rights" doctrine, but is different than the "parental preference" doctrine. See id.; Alexandra Dylan Lowe, Parents and Strangers: The Uniform Adoption Act Revisits the Parental Rights Doctrine, 30 FAM. L.Q. 379, 379-80 (1987) (stating that an "overwhelming majority" of jurisdictions utilize the biological rights doctrine); infra Part V.B. (discussing the "best interests" standard). Return to text.

[90] See Santosky v. Kramer, 455 U.S. 745, 753 (1982) ("The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State."); Turner v. Pannick, 540 P.2d 1051, 1055 (Alaska 1975) (stating that parental custody is preferable and will only be refused when it is clearly detrimental to the child); In re Adoption of Doe, 543 So. 2d. 741, 751 (Fla. 1989) (McDonald, J., dissenting) ("[H]istory has demonstrated that, unless unfit, the best interests of the child lies with the natural parents."); Shorty v. Scott, 535 P.2d 1341, 1344 (N.M. 1975) ("Parents have a natural and legal right to custody of their children. This right is prima facie and not an absolute right.") (quoting Roberts v. Staples, 442 P.2d 788 (N.M. 1968)); United States v. Green, 26 F. Cas. 30, 31 (No. 15,256) (D. R.I. 1824) (stating that the right of the father to have custody of his infant child is valid, "[b]ut this is not on account of any absolute right of the father, but for the benefit of the infant, the law presuming it to be for his interest to be under the nurture and care of his natural protector, both for maintenance and education"). Return to text.

[91] See Kaas, supra note 24, at 1065; Lowe, supra note 89, at 380. Return to text.

[92] See DeBoer v. DeBoer, 509 U.S. 1301, 1302 (1993) ("Neither [state] law . . . nor federal law authorizes unrelated persons to retain custody of a child whose natural parents have not been found to be unfit simply because they may be better able to provide for her future and her education."); In re Doe, 638 N.E.2d 181, 182 (Ill. 1994) (stating that Illinois adoption laws "are designed to protect natural parents in their preemptive rights to their own children wholly apart from any consideration of the so-called best interests of the child"); William Weston, Putative Fathers' Rights to Custody-A Rocky Road at Best, 10 WHITTIER L. REV. 683, 685 (1989); see also Harden v. Thomas, 329 So. 2d 389, 390 (Fla. 1st DCA 1976) (recognizing that courts have consistently held that a natural parent cannot be deprived of custody unless proven unfit); In re Adoption of J.J.B., 894 P.2d 994, 1002 (N.M. 1995) (ex plaining New Mexico's presumptive abandonment statute that requires a finding of unfitness before allowing a nonparent to take custody of a child) (citing Shorty v. Scott, 535 P.2d 1341, 1344 (N.M. 1975)). Return to text.

[93] See M.L.B. v. S.L.J., 117 S. Ct. 555, 564 (1996) (determining that a biological mother has a fundamental right to take custody of her child and that she cannot be denied an appeal of termination of her parental rights when she cannot pay for the filing and copying costs of the appeal); Santosky v. Kramer, 455 U.S. 745, 774 (1982) ("[T]he interest of parents in their relationship with their children is suf ficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment."); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ("It is cardinal with us 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."); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (stating that the rights to conceive and raise children are "basic civil rights of man"); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (deeming the rights to conceive and to raise one's children essential). Return to text.

[94] See Smith v. Organization of Foster Families, 431 U.S. 816, 844-46 (1977) (explaining that a foster parent's relationship with a foster child is a state-created, contractual relationship, and if such a relationship created any liberty interest, such interest would still have to give way to the biological parents' rights that are derived "from blood relationship, state-law sanction, and basic human right[s]"). Return to text.

[95] See Reno v. Flores, 507 U.S. 292, 303-04 (1993) (reviewing a facial challenge to an Immigration and Naturalization Service regulation governing the release of detained alien juveniles); Lassiter v. Department of Soc. Servs., 452 U.S. 18, 45 n.13 (1981) ("[The] Court more than once has adverted to the fact that the 'best interests of the child' standard offers little guidance to judges, and may effectively encourage them to rely on their own personal values."); Quilloin v. Walcott, 434 U.S. 246, 255 (1978); Smith, 431 U.S. at 862-63 (Stewart, J., concurring).

The Reno court addressed whether the juvenile detainees had a right to an individualized hearing on whether private custodial arrangements would be in the child's best interests. See Reno, 507 U.S. at 303. The Court flatly stated that the best interests of the child is a proper standard for making a custody decision between two parents but that it is not the "sole criterion-much less the sole constitutional criterion-for other, less narrowly channeled judgments involving children." Id. at 304. The Court opined: "Even if it were shown, for example, that a particular couple desirous of adopting a child would best provide for the child's welfare, the child would nonetheless not be removed from the custody of its parents so long as they were providing for the child adequately." Id. The Quilloin Court stated:

We have little doubt that the Due Process Clause would be offended "[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest."
Quillion, 434 U.S. at 255 (quoting Smith, 431 U.S. at 862-63 (Stewart, J., concurring)). Return to text.

[96] 405 U.S. 645 (1972). Return to text.

[97] See id. at 652. Return to text.

[98] See id. at 652-53. Return to text.

[99] See In re Doe, 638 N.E.2d 181, 182-83 (Ill. 1994) ("If best interests of the child were a sufficient qualification to determine child custody, anyone with superior income, intelligence, education, etc., might challenge and deprive the parents of their right to their own children."); In re B.G.C., 496 N.W.2d 239, 241 (Iowa 1992) ("[W]ithout established procedures to guide courts in such matters, they would 'be engaged in uncontrolled social engineering.' This is not permitted under our law; '[c]ourts are not free to take children from parents simply by deciding another home offers more advantages.'") (citing In re Burney, 259 N.W.2d 322, 324 (Iowa 1977)); Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994) ("Biological bonds should not be so lightly brushed aside, and the courts should not be given a license to engage in social engineering by invoking the 'best interests of the child.'"). Return to text.

[100] See Susan A. Munson, Independent Adoption: In Whose Best Interest?, 26 SETON HALL L. REV. 803, 812 (1996) (discussing the rise in independent adoptions and partially attributing the rise to fact that, under the New Jersey adoption statute, adoptive parents provide financial assistance to the birth parent, such as medical and hospital costs, food, clothing, and shelter expenses, and payment of vocational, religious, or psychological counseling). See also Smith, 431 U.S. at 833 ("From the standpoint of natural parents . . . foster care has been condemned as a class-based intrusion into the family life of the poor.").

Both the federal and state laws governing an adoption require an evaluation of the prospective adoptive parents' financial status. See UNIF. ADOPTION ACT 2-203 (amended 1994), 9 U.L.A. 21-22 (Supp. 1997) (requiring a preplacement evaluation of adoptive parents' educational and employment history, property and income, credit report or financial statement, and the quality of the environment in the home); FLA. STAT. 63.092 (2)(c)-(d) (1997) (requiring a preliminary home study that includes "[a]n assessment of the physical environment of the home" and "a determination of the financial security of the intended adoptive parents"). Return to text.

[101] See In re Adoption of Baby E.A.W., 658 So. 2d 961, 979 (Fla. 1995) (Kogan, J., concurring in part, dissenting in part) (criticizing the majority's acceptance of the "lack of emo tional support" standard because it will lead to discrimination against the less fortunate); In re B.G.C., 496 N.W.2d at 241 ("[C]ourts are not free to take children from parents simply by deciding another home offers more advantages."). Return to text.

[102] Hodgson v. Minnesota, 497 U.S. 417, 452 (1990) (holding unconstitutional a Minnesota abortion statute that required parental consent from both parents before a minor could obtain an abortion). The Hodgson court added that "a state interest in standardizing its children and adults, making the 'private realm of family life' conform to some state-designed ideal, is not a legitimate state interest at all." Id. Return to text.

[103] See discussion supra Part II.C. Return to text.

[104] See, e.g., Adoption: Assistance Information Support (visited Nov. 14, 1997) <http:/ /www.adopting.org/commonis.html>. Adoptees may not feel like they belong to the adoptive fami ly and may have problems in identity develop ment, may be ambivalent toward their adoptive parents, may suffer from low self-esteem and learning disabilities, may have feelings of rejection, shame, guilt, and unresolved grief, may have problems in acclimatizing to the cul ture of their adoptive family, and may tend to fantasize about their past and reunion pros pects. See id. Return to text.

[105] Many of the psychological problems are unresolved through the life of the adoptee, while some progress may be made resolving other issues. See id. For example, most states make adoption records accessible to the adoptee so that the adoptee can at least have relevant health histories. Return to text.

[106] See E.A.W., 658 So. 2d at 979 (Kogan, J., concurring in part, dissenting in part) (stating that the unwed father's rights were never appropriately terminated); In re Adoption of Baby E.A.W., 647 So. 2d 918, 957 (Fla. 4th DCA 1994) (Stevenson, J., dissenting) ("It is but a matter of time before this child will learn of his adoption and wonder why. All that can be said to him is that, even though your [father] wanted you, the adoptive parents and the courts would not let [him] have you . . . ." ). Return to text.

[107] See infra notes 135-136. Return to text.

[108] See Turner v. Pannick, 540 P.2d 1051, 1055 (Alaska 1975) (justifying the court's acceptance of the biological rights doctrine because of natural law). Return to text.

[109] See id. at 1055 (Dimond, J., concurring) (stating that the guiding principle behind Alaska following the biological rights doctrine is "the fundamental natural right of parents to nurture and direct the destiny of their children"). Return to text.

[110] Id.; see Shorty v. Scott, 535 P.2d 1341, 1344 (N.M. 1975) ("Parents have a natural and legal right to custody of their children."). Return to text.

[111] Turner, 540 P.2d at 1055-56. Return to text.

[112] See Lehr v. Robertson, 463 U.S. 248, 264-65 (1983) (discussing and recognizing New York's interest in facilitating adoption of children and expeditiously completing proceedings); Joan Hiefetz Hollinger, The Uniform Adoption Act: Reporter's Ruminations, 30 FAM. L.Q. 345, 365 n.62 (1996) (discussing the reasons why the Uniform Adoption Act (UAA) limits the time period for appeals or other challenges and stating that the state has an interest in promoting the finality of adoptions). Return to text.

[113] See Scott A. Resnik, Seeking the Wisdom of Solomon: Defining the Rights of Unwed Fathers in Newborn Adoptions, 20 SETON HALL LEGIS. J. 363, 424 (1996) (advocating for a putative father registry to protect unwed father's interest); Swayne v. L.D.S. Soc. Servs., 795 P.2d 637, 639-40 (Utah 1990) (holding con stitutional Utah's paternity registration stat ute and affirming the termination of the unwed father's rights because he did not file with the registry within four days of the child's birth). Return to text.

[114] See T.J.B. v. E.C., 652 A.2d 936, 940 (Pa. Super. Ct. 1995) (concerning a father's doubt that a child was his until testing confirmed his paternity). Return to text.

[115] See In re Adoption of Baby E.A.W., 647 So. 2d 918, 943 (Fla. 4th DCA 1994) (Farmer, J., concurring) (noting that the father called an intermediary and told the biological mother that he would not consent to the adoption). Return to text.

[116] See id.; T.J.B., 652 A.2d at 940 (noting that after the paternity determination, the father wrote a letter to the prospective adoptive parents, informing them that he would not consent to the adoption). Return to text.

[117] See In re Kirchner, 649 N.E.2d 324, 339 (Ill. 1995) (issuing a writ of habeas corpus and ordering the child delivered to his unwed father); In re B.G.C., 496 N.W.2d 239, 241 (Iowa 1992) (ordering custody of the baby to be transferred to the father). Return to text.

[118] See Stephanie Goldberg, Make Room for Daddy, A.B.A. J., Feb. 1997, at 48 (discussing changes in the fathers' movement such as joining forces with second wives, grandparents, and noncustodial mothers that have made it more mainstream); National Fatherhood Initiative (visited Nov. 13, 1997) <http://www.register.com/father>; Center for Successful Fathering, Promoting the Benefits of Involved Fathers (visited Nov. 13, 1997) <http://www.fathering.org>. Return to text.

[119] Some of this criticism has come from feminists. See Nancy D. Polikoff, The Deliberate Construction of Families Without Fathers: Is It An Option for Lesbian and Heterosexual Mothers?, 36 SANTA CLARA L. REV. 375, 376 (1996). For example, Polikoff states:

Contrary to the ideology that simultaneously glorifies fathers and vilifies mothers, I want women to have the option to form families in which their children have no fathers. This is a hard position to develop without acknowledging a larger social context of male indifference to the consequences of sexual intercourse and male irresponsibility for the economic well-being of the children they sire.
Id. Return to text.

[120] Department of HHS, The Clinton Record on Child Support (visited Nov. 13, 1997) <http ://www.acf.dhhs.gov/programs/CSE/new/fswrcse.html> (discussing President Clinton's program to collect child support). Return to text.

[121] DAVID BLACKENHORN, FATHERLESS AMERICA: CONFRONTING OUR MOST URGENT SOCIAL PROBLEM (1995) (concluding that if current trends continue, unwed parenthood will become the nation's principal cause of fatherlessness); Marty Dart, Statistics About Deadbeat Dads and the Effects of Absent Fathers (visited Nov. 13, 1997) /men/nofather/dart.html>. Return to text.

[122] John E. Fennelly, Step Up or Step Out: Unwed Fathers' Parental Rights Post-Doe and E.A.W., 8 ST. THOMAS L. REV. 259, 296, 310-11 (1996) (characterizing decisions made in recent national adoption contests as a newly forming policy of requiring unwed fathers to "step up or step out"). Return to text.

[123] Cf. Daniel Amneus, Ph.D., MacKinnon, Dworkin, The New Victorians (visited Nov. 13, 1997) <http://www.vix.com/pub/men/nofather/articles/amneus.html> ("The biological weakness of the father's role is not a reason for throwing fathers out of the family but a reason for strengthening their role within it."). Return to text.

[124] See In re Adoption of Palmer, 129 Fla. 630, 633, 176 So. 537, 538 (1937); Harden v. Thomas, 329 So. 2d 389, 390 (Fla. 1st DCA 1976). Return to text.

[125] See The Etna, 8 F. Cas. 803, 804 (No. 4542) (D.C. Me. 1838) (discussing the history of paternal power over children); Weston, supra note 92, at 685 (stating that the courts resolved custody disputes only when there was provable and serious harm to the safety of the child). Return to text.

[126] Judith T. Younger, Responsible Parents and Good Children, 14 LAW & INEQ. 489, 496 (1996). Return to text.

[127] See, e.g., Bonsack v. Campbell, 134 Fla. 809, 811-12, 184 So. 332, 333 (1938); In re Weaver v. Hamans, 118 Fla. 230, 231, 159 So. 31, 32 (1935); Miller v. Miller, 38 Fla. 227, 231, 20 So. 989, 990 (1896); Ex parte Devine, 398 So. 2d 686, 688 (Ala. 1981). Return to text.

[128] See Respublica v. Keppele, 2 U.S. 197, 198 (Pa. 1793) (holding that a child could be apprenticed to a master for education but could not be sold into slavery by his father); United States v. Bainbridge, 24 F. Cas. 946, 946 (No. 14,497) (D. Mass. 1816); Etna, 8 F. Cas. at 804; United States v. Green, 26 F. Cas. 30, 31 (No. 15,256) (D. R.I. 1824); Younger, supra note 126, at 496; Carol Sanger, Separating from Children, 96 COLUM. L. REV. 375, 398 (1996). Return to text.

[129] See Younger, supra note 126, at 496; Weston, supra note 92, at 686. Return to text.

[130] See Bainbridge, 24 F. Cas. at 946; Younger, supra note 126, at 496; Sanger, supra note 128, at 397-99. Legitimate children were also apprenticed during colonial times. See Sanger, supra note 128, at 397. Most parents apprenticed children for economic reasons, but wealthy parents placed their children to teach them the value of work. See id. Apprenticing, in fact, was a form of common law adoption. See id. Mothers transferred custody of their illegitimate children to others whom they felt could better educate and train them. See id. Return to text.

[131] See Younger, supra note 126, at 496. Return to text.

[132] See Etna, 8 F. Cas. at 804 (comparing savage and Roman law to the American rules of a father's authority over his children). Return to text.

[133] See id. at 806 (noting that a child does not become the property of his parents based on the child's birth, but "becomes a member of the human family, . . . invested with all the rights of humanity"). Return to text.

[134] See Bainbridge, 24 F. Cas. at 949:

By the common law, the father has a right to the custody of his children during their infancy. In whatever principle this right is founded, whether it result from the very nature of parental duties, or from that authority, which devolves upon him, by reason of the guardianship by nature, or nurture, technically speaking, its existence cannot now be brought into controversy.
Id. Return to text.

[135] See Etna, 8 F. Cas. at 806; Mauro v. Ritchie, 16 F. Cas. 1171, 1172 (No. 9312) (D. D.C. 1827).

Nature has placed [the child] under the tutelage of the parent, because this tutelage is necessary for his protection and well-being, and has implanted in the bosom of the parent the instinct of pa rental love as a pledge and security for the faithful and pious execution of the trust . . . .
Id. Return to text.

[136] See Etna, 8 F. Cas. at 806 ("We find traces of this paternal power in the pictures which the Bible gives of the simple manners of the primitive and patriarchal ages of the world."); Deuteronomy 21:18-21 (giving parents the authority to have stubborn sons stoned). Return to text.

[137] The equity jurisdiction of the American courts stemmed from the king's prerogative under parens patriae to protect his subjects, which dates to seventeenth century England. See Weston, supra note 92, at 688 (citing H. CLARK, THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 786 (1988)). Parens patriae means "parent of the country." BLACK'S LAW DICTIONARY 114 (6th ed. 1990). The term "was used to describe the power of the state to act in loco parentis for the purpose of protecting the property in terests and the person of the child." United States v. Green, 26 F. Cas. 30, 32 (No. 15,256) (D. R.I. 1824) (explaining why the English courts, exercising the power of the king, were allowed to remove children from the custody of their father). Return to text.

[138] See, e.g., Green, 26 F. Cas. at 31 (stating that the right of the father to have custody of his infant child is true, "[b]ut this is not on account of any absolute right of the father, but for the benefit of the infant, the law presuming it to be for his interest to be under the nurture and care of his natural protector, both for maintenance and educa tion"). Return to text.

[139] See Hadley v. City of Tallahassee, 67 Fla. 436, 439, 65 So. 545, 546 (1914) (holding that the mother of an illegitimate child has a right to sue for the wrongful death of her illegitimate child under Florida's 1899 wrongful death act); Adams v. Sneed, 41 Fla. 151, 161-62, 25 So. 893, 895 (1899) (construing Florida's 1829 inheritance statute and holding that illegitimate children of slave mothers can inherit from their mother). Return to text.

[140] See Jones v. Jones, 156 Fla. 524, 527, 23 So. 2d 623, 625 (1945); Fields v. Fields, 143 Fla. 886, 890, 197 So. 530, 531 (1940); Miller v. Miller, 38 Fla. 227, 230, 20 So. 989, 990 (1896); Anderson v. Anderson, 289 So. 2d 463, 464 (Fla. 3d DCA 1974) (stating that the evolution of law over several centuries indicated that everything else being equal, mothers of infants in tender years should receive custody). But see FLA. STAT. 61.13(2)(b)(1) (1997) ("[T]he father of the child shall be given the same consideration as the mother in deter mining the primary residence of a child irre spective of the age or sex of the child."). Return to text.

[141] See, e.g., Howard v. Department of HRS, 651 So. 2d 201, 201 (Fla. 5th DCA 1995); Miller, 38 Fla. at 230, 20 So. at 990 (reversing a custody award of children to the mother because the mother abandoned the marital home and the father had not been proven unfit); State ex rel. Meredith v. Meredith, 69 N.Y.S.2d 462, 470 (N.Y. Sup. Ct. 1947) (granting custody of an illegitimate child to the father because the mother was a convicted bigamist and had abandoned the child). Return to text.

[142] See Marshall v. Reams, 32 Fla. 499, 501, 14 So. 95, 96 (1893) ("The mother has the superior legal right over all others to the custody and control of her minor, illegitimate child."); State v. Nestaval, 75 N.W. 725, 725 (Minn. 1898) ("[A]s against the mother of a bastard child, the putative father has no legal right to its custody, but the mother, as its natural guardian, is entitled to its control, and is bound to maintain it."); Bustamento v. Analla, 1 N.M. 255, 261 (N.M. 1857) ("[T]he mother is natural guardian of her illegitimate children, and she is bound to maintain them."); Burns v. Commonwealth, 18 A. 756, 757 (Pa. 1889) ("[T]he mother of such a[n] [illegitimate] child has the paramount right to the custody of it."). Return to text.

[143] See, e.g., Meredith, 69 N.Y.S.2d at 470. Return to text.

[144] See Marshall, 32 Fla. at 501, 14 So. at 96 (noting that the mother transferred the custody of her 16-year-old child from the child's uncle to a local doctor). Return to text.

[145] See Nestaval, 75 N.W. at 725 ("At common law the putative father is under no legal liability to support his illegitimate offspring."); Bustamento, 1 N.M. at 255. See also In re Remske, 160 N.Y.S. 715, 716 (N.Y. 1916) (finding that the mother's husband was not a guardian of the child and, thus, did not have a duty to support the child). Return to text.

[146] See, e.g., Nestaval, 75 N.W. at 726; Ex parte Hayes, 25 Fla. 279, 281-82, 6 So. 64, 64 (1889). Return to text.

[147] Minnesota v. Carmena, 189 N.W.2d 191, 193 (Minn. 1971) (deciding jurisdictional requirement for bastardy proceeding); see Weston, supra note 92, at 690. Although states claimed that bastardy proceedings were civil and not criminal, the results were basically the same. See Nestaval, 75 N.W. at 726; Hayes, 25 Fla. at 282, 6 So. at 64 (proceeding is "quasi-criminal"). Florida's bastardy statute required the mother to file a complaint with the justice of the peace accusing a named person of being the father. See Hayes, 25 Fla. at 281, 6 So. at 64. If the justice of the peace found that there was sufficient evidence, he issued an order for the arrest of the accused. See id. at 281-82, 6 So. at 64. Upon first appearance, the putative father could make bond and be released until the arraignment. See id. at 282, 6 So. at 64. If found guilty, the court ordered the father to pay a set sum for a period of time. See id., 6 So. at 64. In Hayes, the father was found guilty and ordered to pay $25 a year for 10 years, until the child was 12. See id., 6 So. at 64. The father was taken into custody until he secured a bond to secure that sum. See id., 6 So. at 64. Upon the father's writ of habeas corpus, the Florida Supreme Court held that the trial court lacked jurisdiction over the case because the mother's petition did not allege that she was not a married woman when the baby was born. See id. at 283, 6 So. at 65. Return to text.

[148] See, e.g., Nestaval, 75 N.W. at 725 ("[T]he [paternity] statute makes the putative father one in law for a particular purpose, viz. for the indemnity of society against the expense of the support of the child . . . ."). Return to text.

[149] See Younger, supra note 126, at 497. Massachusetts passed the first adoption statute in 1851. See id. Prior to that time, families had taken care of children other than their own but there was no legal mechanism for making them an official, legal family member. See id. Return to text.

[150] See supra note 142. Return to text.

[151] See Clements v. Banks, 159 So. 2d 892, 893 (Fla. 1st DCA 1964) (stating that the fact that the father voluntarily supported his illegitimate child gave him no standing to prevent the adoption); In re Remske, 160 N.Y.S. 715, 715 (N.Y. Sup. Ct. 1916) (holding that the wife could take custody of her illegitimate child because her husband was not legally obligated to support the child and was not his custodi an); Nestaval, 75 N.W. at 725 (finding the father had no legal right to custody of the bastard child). Return to text.

[152] See Hayes v. Strauss, 144 S.E. 432, 434 (Va. 1928) ("On legitimation, the child is subject to the custody and control of the father to the same extent as in the case of a legitimate child."). Return to text.

[153] See Stanley v. Illinois, 405 U.S. 645, 645 (1972) (requiring a fitness hearing before a biological father's rights were terminated). Return to text.

[154] See Kaas, supra note 24, at 1064 n.70 (stating that it is not feasible to determine a standard by which each state must decide custo dy issues). Return to text.

[155] See In re Kirchner, 649 N.E.2d 324, 339 (Ill. 1995) (following the biological rights doctrine when the mother had told the father that the child died); In re B.G.C., 496 N.W.2d 239, 241 (Iowa 1992) (following the biological rights doctrine to award the child to the natural father when the mother had named another man as the child's father); In re Raquel Marie X., 559 N.E. 2d 418, 428 (N.Y. 1990) (remitting the case to the trial court for determination of whether the unwed father had manifested sufficient parental responsibility to satisfy the biological rights doctrine); Nale v. Robertson, 871 S.W.2d 674, 680 (Tenn. 1994) (following the biological rights doctrine when the father filed with the registry but did not receive notice of the adoption proceedings). Return to text.

[156] See supra note 155. Return to text.

[157] See, e.g., In re Doe, 638 N.E.2d 181, 182 (Ill. 1994) (noting that the mother told the father that the baby had died rather than admitting that she surrendered the child for adoption); B.G.C., 496 N.W.2d at 240-41 (noting that the mother identified a different man as the father and that man had erroneously signed a consent to the adoption); Nale, 871 S.W.2d at 675 (noting that the mother lied to the father and surrendered the child without the father's knowledge). Return to text.

[158] See, e.g., Doe, 638 N.E.2d at 182; B.G.C., 496 N.W.2d at 241; Nale, 871 S.W.2d at 680. Return to text.

[159] See Kirchner, 649 N.E.2d at 333 (writ of habeas corpus) (noting that unwed fathers who, "through deceit, are kept from assuming responsibility for and developing a relationship with their children, are entitled to the same due process rights as fathers who actually are given an opportunity and do develop this relationship"). Return to text.

[160] See supra Part II. Return to text.

[161] See UNIF. ADOPTION ACT Prefatory Note (amended 1994), 9 U.L.A. 2 (Supp. 1997) ("The Act . . . promotes the interest of minor children in being raised by individuals who are committed to, and capable of, caring for them."); Kaas, supra note 24, at 1065-66. This current label, though, confuses the types of cases that should be decided under the best interests standard. The standard first emerged, and is currently the standard used, to settle custody decisions between parents. See, e.g., United States v. Green, 26 F. Cas. 30, 31 (No. 15,256) (D. R.I. 1824) ("When, therefore, the court is asked to lend its aid to put the infant into the custody of the father, and to withdraw him from other persons, it will look into all the circumstances, and ascertain whether it will be for the real, permanent interests of the infant . . . ."). It is not necessarily an appropriate standard to use when deciding between a biological parent and a third party.

Commentators also claim that there is a third standard used by some states-the "parental preference" standard. See Kaas, supra note 24, at 1064-67 (categorizing three standards and explaining the burden of proof in each); In re Adoption of Baby E.A.W., 658 So. 2d 961, 972-73 (Fla. 1995) (Kogan, J., concurring in part, dissenting in part) (discussing three approach es to deciding contested adoption cases and categorizing the UAA as a variation of the best interests and biological rights standards). Return to text.

[162] See Shanley, supra note 34, at 62-63. Return to text.

[163] See supra notes 107-11 and accompanying text; Weston, supra note 92, at 690 ("Even though today, the mater[nal] preference rule and its alter ego, the tender years doctrine, have been largely abolished, the abolition of the emotional dedication of judges to its ap plication has not been so easily eradicated."). Return to text.

[164] If the rights of a mother and father are compared, it becomes evident that it is often more difficult to terminate a biological mother's rights than a biological father's rights. A third-party petitioner against a mother must prove her severely unfit. See, e.g., Murphy v. Markham-Crawford, 665 So. 2d 1093, 1095 (Fla. 5th DCA 1995) (holding that a mother who relinquished custody of her six-year-old daughter to the paternal grandmother for six years was not proven unfit); In re Adoption of M.A.H., 411 So. 2d 1380, 1384 (Fla. 4th DCA 1982) (holding that a mother, whom HRS found to be unfit, could contest an adoption by the paternal grandparents who had "temporary" custody for five years); Foster v. Sharpe, 114 So. 2d 373, 376 (Fla. 3d DCA 1959) (reversing the trial court's order of custody with the paternal aunt in favor of the mother, after the mother had left her 11-year-old daughter with the pa ternal aunt for six years). Return to text.

[165] See supra text accompanying note 20. Return to text.

[166] See generally Peggy C. Davis, "There is a Book Out . . ." An Analysis of Judicial Absorption of Legislative Facts, 100 HARV. L. REV. 1539, 1548 (1987). Davis conducted an em pirical study on the effects of "judicial ab sorption" of the "psychological best interest" theory. See id. at 1546-47. The psychological best interest theory was first espoused in 1963 and argued that disrupting the psychological relationship a child has with an adult is destructive to the emotional health of the child. See id. at 1544. The study revealed that judicial fact determinations and statutory construction determinations were influenced by judges' acceptance of the theory. See id. at 1547-48, 1569-70. Return to text.

[167] Id. at 1548. For a good example of judicial reliance on extraneous, subjective facts see Planned Parenthood of Pennsylvania v. Casey, 505 U.S. 833, 887-95 (1992). In Casey, the Court relied on trial testimony of expert witnesses regarding the broad subject of domes tic violence, see id. at 888-90, its own general research on domestic violence, see id. at 890-95, and "common sense," id. at 892, to hold invalid a Pennsylvania statutory provision that required the husband's consent to an abortion. See id. at 895. The Court's reliance on that information seems misplaced when the Court ad mits that the information regarding the specif ic issue of "notifying one's husband about an abortion" is "too small to be representative," id. at 892, and that, in fact, the provision affects fewer than one percent of women seeking abortions. See id. at 894. It seems the Court, or at least three of the justices, simply took the opportunity to voice their opinion on domestic violence rather than address the issue of whether a husband has a right to consent to his wife's abortion. Compare id. (opinion of O'Connor, Kennedy, and Souter, J.J.) (reviewing extraneous material to arrive at decision), with id. at 972-73 (opinion of Rehnquist, C.J., Scalia, Thomas, and White, J.J., concurring in part, dissenting in part) (criticizing the joint opinion for concentrating on domestic violence situations with no "hard evidence" to support their assumptions); see also Scott C. Idleman, The Role of Religious Values in Judicial Decision Making, 68 IND. L.J. 433 (1993). Return to text.

[168] California's best interests standard is a good example. In John S. v. Mark K., 898 P.2d 891, 895 (Cal. 1995), cert. denied 116 S. Ct. 1272 (1996) the court noted:

If the court finds in such a proceeding that "it is in the best interest of the child that the father retain his parental rights," it must enter an order providing that his consent is necessary for an adoption. In making this determination, the court "may consider all relevant evidence, including the efforts made by the father to obtain custody, the age and prior placement of the child, and the effects of a change of placement on the child." If, however, the court finds that it is in the best interest of the child to be adopted by the prospective adoptive parents, it must enter an order stating that the father's consent is not re quired. This order also "terminates all [the father's] parental rights and re sponsibilities with respect to the child."
Id. (citations omitted) (emphasis added). See also Hollinger, supra note 112, at 355 (stating that under the best interests standard, the deciding factor in any adoption or other adop tion-related proceeding is whether the child's best interests will be served by granting the adoption). Return to text.

[169] See Lassiter v. Department of Soc. Servs., 452 U.S. 18, 45 n.13 (1981) ("[T]he 'best interests of the child' standard offers little guidance to judges, and may effectively encourage them to rely on their own personal values."); Davis, supra note 166, at 1542-43:

In recent years, custody disputes between biological parents (and between nonparents) have been determined in ac cordance with the best interests of the child. Prior to dissemination within legal circles of psychological parent theories, however, child placement law reflected skepticism within and without the mental health professions that the best interests of children could be determined by reliance on rules of thumb drawn from theories of child development. The law contained no rigid formulae for determining the best interests of children, but rather permitted consideration of the broadest variety of factors that might affect their welfare.
Id.; see also Hollinger, supra note 112, at 355. Hollinger explains that the UAA drafting committee members agreed that the UAA should have an express rule of construction stating that the child's welfare or best interests would be the paramount consideration for adoption proceedings. See id. Committee members also agreed that the traditional rule that adoption statutes be strictly construed because they were "in derogation of common law" was too narrow to achieve the policy promoting the best interests of the child. See id. However, the National Conference of Commissioners of Uniform State Laws (NCCUSL) Style Committee refused the provisions because they were too general and susceptible to ideologically motivated inter pretation. See id. at 355-56. Return to text.

[170] See supra Part III.A. Return to text.

[171] See Davis, supra note 166, at 1569-70 (discussing the judiciary's tendency to inter pret statutory language to permit the applica tion of the psychological best interest stan dard). Return to text.

[172] See supra notes 170-71 and accompanying text. Return to text.

[173] See John S., 898 P.2d at 901; Robert O. v. Russell K., 578 N.Y.S.2d 594, 597 (N.Y. Sup. Ct. 1992); Swayne v. L.D.S. Soc. Servs., 795 P.2d 637, 642 (Utah 1990).

In John S., Mark, the birth father, was 20 and Stephanie, the birth mother, was 15 when she became pregnant. Mark wanted to get married, but Stephanie refused because she wanted to finish school. See John S., 898 P.2d at 893. They were undecided about what to do about the pregnancy. See id. However, Mark bought a trailer for them to live in and went to a yard sale with Stephanie to buy baby apparel. See id. They began attending birth classes together, enrolled in prenatal nutrition classes, and applied for Medicaid. See id. at 904 (Kennard, J., concurring in part, dissenting in part). Mark went to medical appointments with Stephanie and paid to have a sonogram. See id. About four months before the baby was born, Mark and Stephanie's relationship began to deteriorate. See id. Stephanie testified that she began to feel smothered by Mark's increasing attention toward her. See id. The two argued, Stephanie rushed at Mark with a pen, Mark pushed Stepha nie down on a chair, bruising her arm, and Ste phanie had Mark arrested. See id. At some point, Mark attempted suicide because of the deterioration of his relationship with Stephanie, but then admitted himself into a rehabilitation hospital. See id. at 893. When Mark found out that she planned to place the baby for adoption, he contacted various politicians, media personalities, legal aid, and private attorneys in an attempt to stop the adoption plans. See id. at 905. Finally, he drafted his own petition asserting paternity and seeking custody of the yet unborn child. See id. None theless, the court found that Mark's efforts did not demonstrate that he was fully committed to his parental responsibilities, denied his paternity petition, and granted the adoption. See id. at 901.

In Robert O. v. Russell K., 578 N.Y.S.2d 594 (N.Y. App. Div. 1992), the couple was engaged but could not agree as to when they should get married. See id. at 595. When Carol found out she was pregnant, she did not want Robert to believe she had conceived simply to make him marry her, so she broke off the engagement. See id. Robert moved away, and Carol began the ado ption proceedings. See id. Throughout the proceedings, Carol was not asked to identify the father of her child, and she never volunteered Robert's name. See id. Almost a year after the adoption was finalized, Robert and Carol reconciled and became engaged again. See id. When Carol finally told Robert about the adoption, he "went nuts" and immediately took action to get custody of the baby. Id. However, the court refused to vacate the adoption because Robert had not established a "custodial relationship" with the baby, although the mother had prevented him from doing so. Id.

In Swayne v. L.D.S. Social Services, 795 P.2d 637 (Utah 1990), Steve and Penny were dating when she became pregnant. See id. at 639. After finding out that Penny was pregnant, Steve and his family held a baby shower for her, and Steve contributed to her doctors' bills. See id. Penny lived with Steve's mother for some time, and his sister offered to care for the baby after its birth. See id. When Penny told Steve that she was thinking about relinquishing the baby for adoption, Steve protested and told her he wanted to raise the child. See id. When the baby was born, Penny did not tell Steve that she had placed the child for adoption. See id. at 640 n.2. Instead, she told him she was taking it to California, and then called Steve's family from California and told them the baby had died. See id. The adoption was, nonetheless, upheld. See id. at 644. The Utah Supreme Court reaffirmed the constitutional validity of its statutory scheme. See id. They did so even though that scheme allowed termination of parental rights simply because the father did not file a notice of acknowledgment of paternity, even when he was unaware the baby was placed for adoption or was told that baby died. See id. at 640. Return to text.

[174] See Davis, supra note 166, at 1569-70; Swayne, 795 P.2d at 642 (stating that it was not "impossible" for Steve to file acknowledgment simply because Penny had lied to him). Return to text.

[175] See Swayne, 795 P.2d at 643 (listing all the efforts the father made, but then deciding that because he had not assumed his "legal obligation" of filing the paternity acknowledgment, his due process rights were not violated). Return to text.

[176] See supra note 94 and accompanying text. Return to text.

[177] See supra Part IV. Return to text.

[178] 658 So. 2d 961 (Fla. 1995). Return to text.

[179] See id. at 963. Return to text.

[180] See Jones v. Harmon, 27 Fla. 238, 242, 9 So. 245, 246 (1891) (granting adoption to a third party when the natural mother had relinquished the child to the third party and the maternal aunt contested the adoption proceeding). Return to text.

[181] See State ex rel. Airston v. Bollinger, 88 Fla. 123, 131, 101 So. 282, 285 (1924) (striking down laws that allowed a parent to part with a child by methods other than the adoption statute). Return to text.

[182] See Act effective May 18, 1943, ch. 21759, 1, 1943 Fla. Laws 181 (current version at FLA. STAT. 63.022 (1997)). Return to text.

[183] See Act effective Oct. 1, 1973, ch. 73-159, 2, 1973 Fla. Laws 312 (amending FLA. STAT. 63.022 (Supp. 1972)). Return to text.

[184] Chapter 63 governs the adoption process through state agencies, (see FLA. STAT. 63.202 (1997)), private agencies, (see id.), and independent agencies, (see id. 63.085-.092). Generally, the biological mother contacts an agency or intermediary to arrange the adoption. See E.A.W., 658 So. 2d at 964; In re Adoption of Doe, 543 So. 2d 741, 743 (Fla. 1989); Henriquez v. Adoption Centre, 641 So. 2d 84, 89 (Fla. 5th DCA 1993). The agency or intermediary counsels the mother about her decision. See FLA. STAT. 63.022(1)(k) (1997). It gathers information from her. See id. 63.082(3)(a)-(b). After the birth of the child, the mother consents to the adoption and, thus, to termination of her parental rights. See id. 63.062(1)(b), 63.082(4). By the time the child is born, prospective adoptive parents have been located and the Department of Children and Family Services has completed a placement study. See id. 63.092(2). If the study is favorable, the child can be placed in the prospective ado ptive home. See id. 63.092(2). If an intermediary is handling the adoption, the intermediary must file a petition for adoption within 30 days of placement. See id. 63.102(3). The adoptive parents are petitioners in the proceedings, while the natural parents are not parties. See id. 63.112. The petition must include the required consent or a request for waiver of an unavailable consent. See id. 63.112(2)(a). The petitioners are required to exercise good faith and diligent efforts to locate and obtain required consent, usually the natural father's, within 60 days after filing the petition. See id. 63.062(3). However, cases prove that petitioners are limited by the actions of and information given by the natural mother to the agency or intermediary. See E.A. W., 658 So. 2d at 964; Doe, 543 So. 2d at 743; Henriquez, 641 So. 2d at 85. Ninety days after placement in the adoptive home, the court simultaneously can hear the adoption petition, waive consents if necessary, terminate parental rights, and grant the adoption. See FLA. STAT. 63.082, .085, .092, .112, .122, .142 (1997). Return to text.

[185] See id. 63.022, .032(14), .062, 072. Return to text.

[186] See In re Adoption of Baby E.A.W., 647 So. 2d 918, 938 (Fla. 4th DCA 1994) (Farmer, J., dissenting) (citing In re Miller, 227 So. 2d 73 (Fla. 4th DCA 1969), and Tsilidis v. Pedakis, 132 So. 2d 9 (Fla. 1st DCA 1961), to confirm that adoption statutes are "in derogation of the common law and must be strictly con strued."). Return to text.

[187] FLA. STAT. 63.022(1) (1997). Return to text.

[188] Id. 63.022(2). Return to text.

[189] See id. 63.022(2)(a). Return to text.

[190] See id. 63.022(2)(b). The safeguards further provide that in adoptions handled by private intermediaries, the birth parents, adoptive parents, and the child are to receive the same or similar safeguards, guidance, counseling, and supervision as they would under an agency adoption. See id. 63.022(2)(k). Return to text.

[191] Id. 63.022(2)(l). Return to text.

[192] See FLA. STAT. 63.062 (1973). The relevant portion of the previous section stated:

No consent is required from the father of a child born out of wedlock when the mother of the child does not know the identity of the father and a reasonable search would not reveal his identity. In this event, the mother shall execute an affidavit under oath that she does not know either the [identity] or location of the father.
Id. Return to text.

[193] See Clements v. Banks, 159 So. 2d 892, 893 (Fla. 3d DCA 1964) (holding that the putative father had no right to the illegitimate child and that his consent was not required, although he had provided voluntary support to the child). Return to text.

[194] See id. Return to text.

[195] See FLA. STAT. 63.062(1) (1997). The statute states:

(1) Unless consent is excused by the court, a petition to adopt a minor may be granted only if written consent has been executed after the birth of the minor by:
(a) The mother of the minor. (b) The father of the minor, if: 1. The minor was conceived or born while the father was married to the mother. 2. The minor is his child by adoption. 3. The minor has been established by court proceeding to be his child. 4. He has acknowledged in writing, signed in the presence of a competent witness, that he is the father of the minor and has filed such acknowledgment with the Office of Vital Statistics of the Department of Health. 5. He has provided the child with support in a repetitive, customary man ner. Id. Also, within 60 days of filing the petition, the adoption petitioners must exercise "good faith and diligent efforts" to notify and obtain consent from any parent whose consent is required but who has not consented. Id. 63.062(3) (outlining the efforts to include conducting interviews and searches of vehicle registrations and correction records, and verifying residential, employment, and Armed Forces service information). Return to text.

[196] See id. 63.072(1)- (3). The court may also waive consent from a legal guardian or custodian of the child, other than a parent, who has failed to respond within 60 days to a request for consent or who is withholding consent unreasonably. See id. 63.072(4). Return to text.

[197] See id. 39.01(1). In 1989, when the Doe court began tinkering with the definition, this section stated:

"Abandoned" means a situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the person responsible for the child's welfare, while being able, makes no provision for the child's support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of parental obligations. If the efforts of such parent or legal custodian, or person primarily responsible for the child's welfare to support and communicate with the child are, in the opinion of the court, only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned. The failure by any such person to appear in response to actual or constructive service in a dependency proceeding shall give rise to a rebuttable presumption of such person's ability to provide for and communicate with the child.
Id.; see also In re Adoption of Doe, 543 So. 2d 741, 745 (Fla. 1989). Return to text.

[198] See Doe, 543 So. 2d at 750 (McDonald, J., dissenting) ("Florida has heretofore properly taken a narrow view as to what constitutes abandonment. Abandonment must be proven by clear and convincing evidence and must be complete.") (footnotes omitted). Return to text.

[199] See Wylie v. Botos, 416 So. 2d 1253, 1256 (Fla. 4th DCA 1982) (Anstead, J.) ("We simply cannot determine with certainty whether the legislature intended to cut off the rights of a natural father, who, although on notice of his paternity of a child and the pendency of adoption activities, files no acknowledgment of paternity before the legal adoption proceedings are commenced."). Return to text.

[200] See Doe, 543 So. 2d at 749. Return to text.

[201] See id. at 745-46. The court concluded that "prebirth conduct does tend to prove or disprove material facts bearing on abandonment and may be properly introduced and used as a basis for finding abandonment" under chapter 63. Id. at 746.

It is noteworthy that the court's opinion is practically devoid of citations to previous state case law but replete with citation to findings made by the United States Congress. See id. at 741-47 (citing only to In re I.B.J., 497 So. 2d. 1265, 1266 (Fla. 5th DCA 1986) regarding the revocability of the mother's consent and disapproving of that decision). Return to text.

[202] 543 So. 2d 741 (Fla. 1989). Return to text.

[203] See id. at 745. The court masks the definition of abandonment in the circular reasoning that, "[a]ssuming for the moment that prebirth conduct is relevant to material facts bearing on abandonment, . . . [w]e conclude that prebirth conduct does tend to prove or disprove material facts bearing on abandonment." Id. at 745-46. Return to text.

[204] Id. at 746. Return to text.

[205] Id.; see also id. at 749 (Barkett, J., concurring). Return to text.

[206] Id. at 749. Return to text.

[207] See Act effective July 1, 1992, ch. 92-96, 3, 1992 Fla. Laws 852 (adding subsection 63.032(14), defining "abandoned"). The current chapter 63 definition of "abandoned" is:

[A] situation in which the parent or legal custodian of a child, while being able, makes no provision for the child's support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of parental obligations. If, in the opinion of the court, the efforts of such parent or legal custodian to support and communicate with the child are only marginal efforts that do not evince a set tled purpose to assume all parental duties, the court may declare the child to be abandoned. In making this decision, the court may consider the conduct of a father towards the child's mother during her pregnancy.
FLA. STAT. 63.032(14) (1997). Return to text.

[208] In re Adoption of Baby E.A.W., 658 So. 2d 961, 966 (Fla. 1995) (emphasis added). Return to text.

[209] See In re Adoption of Baby E.A.W., 647 So. 2d 918, 937-38 (Fla. 4th DCA 1994) (Farmer, J., dissenting)). Return to text.

[210] E.A.W., 658 So. 2d at 965. Return to text.

[211] See FLA. STAT. 63.022(2)(a) (1997) (stating that child must be legally free to be adopted); E.A.W., 658 So. 2d at 966 ("[The] best interests evidence was not relevant unless Baby E.A.W. was available for adoption and that she was not available for adoption without a finding that she had been abandoned."). Return to text.

[212] See, e.g., In re B.G.C., 496 N.W.2d 239, 240-41 (Iowa 1992) (noting that the mother lied about the paternity of the child); Robert O. v. Russell K., 578 N.Y.S.2d 594, 595 (N.Y. 1992) (stating that the mother broke off the engagement and the relationship with the father after she found out that she was pregnant and never told the father of the pregnancy). Return to text.

[213] See B.G.C., 469 N.W.2d at 241; Robert O., 578 N.Y.S.2d at 595. Return to text.

[214] See B.G.C., 469 N.W.2d at 241; Robert O., 578 N.Y.S.2d at 595. Return to text.

[215] See O'Bryan v. Doe, 572 So. 2d 986, 987 (Fla. 1st DCA 1990) (reversing the trial court's finding that the biological father's consent was not required, even though the child was born while the mother was married to another man, because the father had bought baby supplies for the child, signed an apartment lease and lived with the mother during her pregnancy, and had his name entered on the birth certificate); In re Adoption of Mullenix, 359 So. 2d 65, 69 (Fla. 1st DCA 1978) (holding that the father's consent was not required when the pre gnant mother had left the state and he had no opportunity to provide support for her); De partment of HRS v. Herzog, 317 So. 2d 865, 868 (Fla. 2d DCA 1975) (affirming the trial court's order denying the department's motion to "ferret out" the natural father). Return to text.

[216] See E.A.W., 658 So. 2d at 965. Return to text.

[217] See id. at 981 (Anstead, J., dissenting); In re Adoption of Doe, 543 So. 2d 741, 751 (Fla. 1989). Return to text.

[218] See E.A.W., 658 So. 2d at 961; Doe, 543 So. 2d at 741. Return to text.

[219] See In re Adoption of Baby E.A.W., 647 So. 2d 918, 939 (Fla. 4th DCA 1994) (Farmer, J., dissenting) ("When something affecting a constitutionally protected right must be proved with clear and convincing evidence, I do not believe it is possible to carry the day with facts that are susceptible to differing inferences, one probative and the other not."). Return to text.

[220] See FLA. STAT. 63.062(1)(b) (1997). Return to text.

[221] See id. 63.062(1)(a). Return to text.

[222] Cf. id. 63.062(1)(b)(1)-(4). Return to text.

[223] In some cases this is by an intermediary's request for consent to the father rather than the mother notifying him. Return to text.

[224] See E.A.W., 647 So. 2d at 931 (Pariente, J., concurring) (suggesting that legislation could require the mother to notice the father of her intent to place the child for adoption). Because the goal is to be reasonably certain that the father did receive notice, actual service should be required and constructive notice used only when the revised diligent search inquiry has failed to locate the father. The intermediary could represent the birth mother in this portion of the proceeding, and these costs could be part of the allowable expenses for the adoption. The court will determine who is the true biological father through the mother's testimony or paternity testing. Return to text.

[225] If, after the father asserts his interest, the mother also asserts her interest in keeping the child rather than placing the child for adoption, the statute could refer the court to the custody and support provisions in chapter 61, Florida Statutes, and the case would proceed as a paternity suit. See FLA. STAT. 61.13, .30, 742.011-.17 (1997). Return to text.

[226] See id. 63.0620. Return to text.

[227] For example, the definition of "abandoned" could be deleted from section 63.032 and references to it deleted from section 63.072(1). See supra notes 202-10 and accompanying text. Return to text.

[228] The diligent search requirement should include an inquiry into the mother's prebirth living and support circumstances, see id. 63.072(3), and should exhaust avenues of identifying a biological father whom the mother refused to, or could not, identify. Cf. UNIF. ADOPTION ACT, 3-401 (amended 1994), 9 U.L.A. 46-47 (Supp. 1997); FLA. STAT. 39.4051, (1997) (dependency proceedings); id. 39.4625 (termination of parental rights proceedings); Fla. SB 3026 (1996); Fla. HB 227 (1996). The Legislature could ensure the integrity of these search efforts by allowing a civil penalty against any woman who misinformed the court regarding the birth father. Cf. UNIF. ADOPTION ACT 3-404, 9 U.L.A. at 49. Return to text.

[229] Cf. FLA. STAT. 63.182 (1997) (allowing one year to appeal a final order of adoption). Return to text.

[230] See, e.g., Fla. SB 1762 (1997); Fla. HB 1257 (1997); Fla. SB 3026 (1996); Fla. SB 178 (1996); Fla. HB 1837 (1996); Fla. HB 227 (1996); Fla. HB 65 (1996); Fla. SB 2378 (1994); Fla. HB 2819 (1994); Fla. HB 2491 (1994). Return to text.

[231] This discussion concerns bills that sought to significantly alter chapter 63; it is not exhaustive of all attempts at revision. For example, other bills provided for the administration of "Andrew" rights to the birth mother. See Fla. SB 178 (1996); Fla. SB 2322 (1995). Essentially, "Andrew" rights are a listing of rights given to mothers in the state of Florida who may choose to give their child up for adoption. See Fla. SB 178 (1996); Fla. SB 2322 (1995). Other bills sought to add that a prospective adoptee may be removed from an unsuitable adoptive home prior to adoption finalization. See Fla. SB 752 (1995); Fla. HB 349 (1995). Return to text.

[232] In 1996, Vermont became the first state to enact the UAA. See P.A. 161, 136, Laws of Vermont (1996) (codified at VT. STAT. ANN. tit. 15A (1996)). Return to text.

[233] See Fla. HB 65 (1995). This bill incorporated the UAA without modification; therefore, this analysis of the UAA is applicable also to House Bill 65. Return to text.

[234] See Hollinger, supra note 112, at 355-56 (explaining that the NCCUSL committee would not allow an intent section because the best interests standard was too subjective and did not fit within the parameters of objective law guidelines suited for uniform provisions). Return to text.

[235] See Fla. HB 65 (1995). The prefatory note states:

The guiding principle of the Uniform Adoption Act is a desire to promote the welfare of children, and particularly to facilitate the placement of minor children whose biological parents cannot raise them, by permanently placing them in stable homes with adoptive parents who are willing to assume all parental rights and responsibilities for them. This chapter is premised on the belief that adoption offers significant legal, economic, social and psychological benefits, not only for children who might otherwise be without a family, but also for parents who are unable to care for their children, prospective parents who want children to nurture and support, and the state government that is ultimately responsible for the well-being of children.
Id.; see UNIF. ADOPTION ACT Prefatory Note (amended 1994), 9 U.L.A. 2 (Supp. 1997); see also Fla. SB 2378 (1994); Fla. HB 2819 (1994). Both used the prefatory material as legislative intent. Return to text.

[236] See Hollinger, supra note 112, at 357 ("[T]he UAA is replete with specific provisions, including the ultimate judicial decision to grant or deny an adoption, in which the determinative factor is best interests, avoidance of detriment, or promotion of the child's wel fare."). Return to text.

[237] See UNIF. ADOPTION ACT 1-101(10), 9 U.L.A. at 6. "Parent" is expressly defined in the Act to be "an individual who is legally recognized as a mother or father or whose consent to the adoption of a minor is required." Id. Any man named by the mother as the child's father must also receive notice of the adoption proceedings. See id. 3-401(a)(3), 9 U.L.A. at 46. Return to text.

[238] See id. 3-404(a), 9 U.L.A. at 48. The Act also provides that if the mother intentionally misidentifies the father, she is subject to a civil fine of not more than $5000. See id. 7-105(f), 9 U.L.A. at 88. Vermont modified section seven of the UAA to avoid any direct implication of a devious mother; instead, Vermont's statute has one general enforcement provision that allows a penalty for any violation of the provisions of the Act rather than a specific section addressing the mother. See VT. STAT. ANN. tit. 15A, 7-101 (1996). Return to text.

[239] See UNIF. ADOPTION ACT 2-401(a)(1)(iii), 9 U.L.A. at 27 (noting that a father ac knowledges this paternity by signing "a docu ment which has the effect of establishing his parentage of the minor"). Return to text.

[240] See id. 2-401(a)(1)(iii)(A), 3-504, 9 U.L.A. at 27, 53-54. The Act provides that if a child is under six months of age, the father must pay reasonable prenatal, natal, and postnatal expenses, and support payments according to his financial means, visit the child, and manifest an ability and willingness to assume legal and physical custody of the child. See id. 3-504, 9 U.L.A. at 53-54. If the child is over six months old, the father must provide financial support according to his means for the six months prior to filing of the termination petition, communicate regularly with the child, and manifest an ability to assume custody of the child. See id. Return to text.

[241] See id. 2-401(a)(1)(iv), 9 U.L.A. at 27. Return to text.

[242] See id. 3-504(c) & cmt, 9 U.L.A. at 53-55. The UAA enumerates the various ways in which an unwed father's rights may be terminated and expressly establishes the burden of proof for termination under the specific grounds. See id. 3-504, 9 U.L.A. at 53-54. If the father fails to respond to the notice, his parental rights can be terminated by the court. If the father responds and asserts his parental rights, the court can terminate his rights if he has failed to provide financial support during the prenatal, natal, and postnatal periods. See id. 3-504(c)(1)(i), 9 U.L.A. at 53. Return to text.

[243] Id. 3-504 & cmt, 9 U.L.A. at 53-55. See also Santosky v. Kramer, 455 U.S. 745, 745 (1982) (establishing that grounds for termination of parental rights must be proven by clear and convincing evidence). Return to text.

[244] See Hollinger, supra note 112, at 359, 361. While Hollinger claims that the UAA is "front-loaded with due process protections," she misses the point that even with those protections there is no substantive due process when a judge can decide a biological parent's rights based on his subjective determination of the child's best interest. Return to text.

[245] See Lowe, supra note 89, at 400 ("[T]he grounds for the termination of parental rights under the Act are considerably broader than those available under most states' child protection laws [and] the Act seeks to redress the imbalance inherent in the parental rights doctrine."). Return to text.

[246] See UNIF. ADOPTION ACT 3-504(c)(3), 9 U.L.A. at 53. Section 3-504(d) gives several reasons for termination. Those reasons include the circumstances of the minor's conception, the parent's behavior during the pregnancy or since birth or toward another minor, detriment to the minor, the parent's efforts to assume physical and legal custody, the quality of the parent/child relationship, the suitability of the child's present custodial environment, and the effect of a custody change on the minor. See id., 9 U.L.A. at 53-54. Return to text.

[247] See id. Return to text.

[248] See id. 3-504(e)(4)(c), 9 U.L.A. at 54. The Commission relied in part on In re Adoption of Doe, 543 So. 2d 741 (Fla. 1989), to say that it is constitutional to consider the prebirth conduct of a father. See id. The commission also relied on In re Baby Girl K., 335 N.W.2d 846 (Wis. 1983), and Doe v. Attorney W., 210 So. 2d 1312 (Miss. 1982), to come to this conclusion. However, those cases are distinguishable because they involved fathers who knew about the pregnancies and births but took no action to assert their interest until well after the adoption was begun or finalized.

Likewise, the Commission did not express any intent that courts should consider the father's emotional support of the mother during the prebirth period. In fact, the UAA's provisions are so laden with requirements for the father to assume financial responsibility and maintain a relationship with the child that they may preclude consideration of emotional support. See, e.g., UNIF. ADOPTION ACT 2-401(a), 9 U.L.A. at 27 (requiring consent from a father who has financially supported the child or established a relationship with the child); id. 3-504(c)(1)(i), (ii), (iii), (iv) 9 U.L.A. at 53 (allowing termination of parental rights if the father has not provided financial support or attempted to establish a relationship with his child who is less than six months old). Return to text.

[249] See In re Adoption of Baby E.A.W., 658 So. 2d 961, 973 (Fla. 1995) (Kogan, J., concurring in part, dissenting in part) (stating that the UAA relied on In re Adoption of Doe, 543 So. 2d 741 (Fla. 1989), as authority). Justice Kogan questioned the constitutionality of the Doe decision because it cuts off the birth father's opportunity interest based on his relationship with the birth mother and not the child. See id. at 972, 975. Return to text.

[250] See Fla. SB 1762 (1997); Fla. HB 1257 (1997); Fla. SB 1876 (1996); Fla. HB 1837 (1996); Fla. SB 752 (1995); Fla. HB 349 (1995); Fla. SB 264 (1994). Return to text.

[251] See Fla. SB 1762 (1997); Fla. HB 1257 (1997). Return to text.

[252] See Fla. SB 1762 (1997); Fla. HB 1257 (1997). The 1997 bills were somewhat watered down when compared to past best interests bills. E.g., compare Fla. SB 1876 (1996) and Fla. HB 1837 (1996), with Fla. SB 752 (1995) and Fla. HB 349 (1995). Return to text.

[253] See Fla. SB 1762 (1997); Fla. HB 1257 (1997). That definition states:

"Best interest of the person to be adopted" means that the adoption will protect and promote the health, safety, physical, and psychological well-being of the prospective adoptee. This consideration shall not include a comparison between the attributes of the parents and those of any persons providing a present or potential placement for the child. For the purpose of determining the manifest best interests of the child, the court shall consider and evaluate all relevant factors.
Fla. SB 1762 (1997); Fla. HB 1257 (1997). Return to text.

[254] See Fla. SB 1762 (1997); Fla. HB 1257 (1997). Those considerations are:

(5)(a) The ability and disposition of the parent or parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under state law instead of medical care and other material needs of the child.
(b) The capacity of the parent or parents to care for the child to the extent that the child's health and well-being will not be endangered upon the child's return home. (c) The present mental and physical health needs of the child and such future needs of the child to the extent that such future needs can be ascertained based on the present condition of the child. (d) The love, affection, and other emotional ties existing between the child and the child's parent or parents, sib lings, and other relatives, and the degree of harm to the child that would arise from the termination of parental rights and duties. (e) The child's ability to form a significant relationship with a parental substitute and the likelihood that the child will enter into a more stable and permanent family relationship as a result of permanent termination of parental rights and duties. (f) The length of time that the child has lived in a stable, satisfactory envi ronment and the desirability of maintaining continuity. (g) The depth of the relationship existing between the child and the present custodian. (h) The reasonable preferences and wishes of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference. (i) The recommendations for the child provided by the child's guardian, attor ney ad litem, or legal representative. Fla. SB 1762 (1997); Fla. HB 1257 (1997). Cf. FLA. STAT. 39.4612 (1997). Return to text.

[255] See Fla. SB 1762 (1997); Fla. HB 1257 (1997). Return to text.

[256] See Fla. SB 1762 (1997); Fla. HB 1257 (1997). Currently, the diligent search requirement is 60 days. See FLA. STAT. 63.062(3) (1997). Return to text.

[257] See Fla. SB 1762 (1997); Fla. HB 1257 (1997). Relevant portions of proposed section 63.063, Florida Statutes, read:

63.063 Notice of adoption.- (1) Any person whose consent to the adoption is required by this chapter who has not consented. (2) The mother of the minor, unless her parental rights have been terminated or she has executed a voluntary consent which contains a written waiver of notice of the adoption proceedings. (3) Any man, who: (a) Is or has been married to the mother of the minor and the child was conceived or born during the marriage or born during the marriage and he is the biological father of the child or has filed a paternity action pursuant to section 742.091; (b) Adopted the minor; (c) Has been established by court proceeding to be the father of the child; or (d) Has provided the minor and the minor's mother during pregnancy with sup port in a repetitive, customary manner taking into consideration the needs of the mother. (4) Any party who is attempting to revoke consent on the ground that it was obtained by fraud or duress. (5) Any individual who claims to be or is named as the father or possible father of the adoptee or a person who the birth mother has reason to believe may be the father of the child. Id. Return to text.

[258] Fla. SB 1762 (1997); Fla. HB 1257 (1997); see also Fla. SB 1876 (1996); Fla. HB 1837 (1996); Fla. SB 752 (1995); Fla. HB 349 (1995). Previous bills have also proposed this notice section. Senate Bill 752 and House Bill 349 (companion bills) placed this statement in the legislative intent section: "It is the further intent of the Legislature that a man is on notice that a child may have been conceived when he has sexual intercourse, whether or not con traception was used." Fla. SB 752 (1995); Fla. HB 349 (1995). Under either proposal, this point of demarcation-at the time of inter course-is much too early. A man should not be on notice that he may be a father, much less that any gamete will possibly become a zygote which will become a child who will be placed for adoption, unless he has some indication that a woman is pregnant. These notice-of-adoption-at-time-of-sex proposals are unjust because, theoretically, they mean that a man must file a paternity suit or start financially and emotionally supporting the mother in a customary and repetitive manner the day after he has sex with her because he has notice that she will place his prospective child for adoption. Return to text.

[259] See Fla. SB 1762 (1997); Fla. HB 1257 (1997). Return to text.

[260] See Fla. SB 1762 (1997); Fla. HB 1257 (1997). The bills kept the current definition of "abandoned" but added to it that incarceration of a parent will not preclude a finding of abandonment. See id. Return to text.

[261] See Fla. SB 1762 (1997); Fla. HB 1257 (1997). Return to text.

[262] See Fla. SB 1762 (1997); Fla. HB 1257 (1997). Return to text.

[264] Fla. SB 3026 (1996); Fla. HB 227 (1996). The revised section 63.022(2)(l ), Florida Statutes, reads:

I n all matters coming before the court pur suant to thi Fla. SB 3026 (1996); Fla. HB 227 (1996). The revised section 63.022(2)(l), Florida Statutes, reads:

In all matters coming before the court pursuant to this act, the court shall enter such orders as it deems necessary and suitable to promote and protect the best interests of the person to be adopted.

Id. Return to text.

[265] See Fla. SB 3026 (1996); Fla. HB 227 (1996). The new section was:

63.063 Due Diligence; consent and noti fication; cooperation.-

(1) The petitioner must make good faith and diligent efforts to identify, locate, notify, and obtain written consent from the persons required to consent to adop tion within 60 days after filing the petition. These efforts shall include conducting interviews and record searches to locate those persons, including verifying information related to location of residence, employment, service in the Armed Forces, vehicle registration in this state, and corrections records.

(2) In attempting to identify and locate the father, inquiry shall be made as to whether:

(a) The woman who gave birth to the minor adoptee was married at the probable time of conception of the minor, or at a later time.

(b) The woman was cohabiting with a man at the probable time of conception of the minor.

(c) The woman has received payments or promises of support, other than from a governmental agency, with respect to the minor or because of her pregnancy.

(d) The woman has named any individual as the father on the birth certificate of the minor or in connection with applying for or receiving public assistance.

(e) Any individual has formally or informally acknowledged or claimed paterni ty of the minor in a jurisdiction in which the woman resided during or since her pregnancy, or in which the minor resided or resides, at the time of the inquiry.

Fla. SB 3026 (1996); Fla. HB 227 (1996). Return to text.

[266] See Fla. SB 3026 (1996); Fla. HB 227 (1996). The proposed new section 63.117, Florida Statutes, was:

63.117 Notice of adoption petition.-

Notice of the adoption proceeding, along with a copy of the petition, must be served by the petitioner on:

(1) Any person whose consent is required, who has not consented.

(2) The mother of the minor, unless her parental rights have been terminated.

(3) Any man who has filed an action to establish paternity.

(4) Any person who is seeking to revoke a consent.

Fla. SB 3026 (1996); Fla. HB 227 (1996). The bills also created a new section requiring no tice of the adoption hearing. See Fla. SB 3026 (1996); Fla. HB 227 (1996). Those proposed changes tracked the notice requirements in the proposed section 63.117 but added the requirement that any man who has filed an action to establish paternity must receive notice of the adoption hearing. See Fla. SB 3026 (1996); Fla. HB 227 (1996) (proposed 63.122(e)). Return to text.

[267] See Fla. SB 3026 (1996); Fla. HB 227 (1996). Return to text.

[268] See Fla. SB 3026 (1996); Fla. HB 227 (1996). Return to text.

[269] Fla. SB 3026 (1996); Fla. HB 227 (1996). Return to text.

[270] See Fla. SB 3026 (1996); Fla. HB 227 (1996). That proposal stated:

63.124 Separate proceeding for termina tion of parental rights.-

(1) Any proceeding to terminate parental rights of either birth parent must be filed pursuant to and in accordance with chapter 39, and must be filed separately from the petition for adoption. The final hearing on any such proceeding to terminate parental rights must occur prior to the final hearing on the adoption petition.

Fla. SB 3026 (1996); Fla. HB 227 (1996). Return to text.

[271] See FLA. STAT. 39.462 (1997). Chapter 39 provides further notice requirements and diligent search efforts before terminating parental rights. See id. 39.462 (requiring notice of termination proceedings); id. 39.4625 (requiring a diligent search when the parent subject to termination proceedings is unidentified and unlocated). Return to text.

[272] Assuming that the termination petition would have to state grounds for termination under section 39.464, subsection (c) would be a likely ground for termination in pursuit of adoption. See id. 39.464(1)(c). This ground for termination is:

When the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life or well-being of the child irrespective of the provision of services. Provision of services is evidenced by proof that services were pro vided through a previous plan or offered as a case plan from a child welfare agency.

Id. That subsection's use of the term "conduct" would invite analogy to interpretation of chapter 63's definition of abandoned. Such an analogy would interpret chapter 39's terminology to mean that evidence of the father's lack of prenatal financial and emotional support of the natural mother would be conduct demonstrative of the detriment to the child's well-being. Return to text.

[273] See Swayne v. L.D.S. Soc. Servs., 795 P.2d 637, 643 (Utah 1990). In Swayne, the unwed biological father did not want to marry the mother, knew she was pregnant, and made living arrangements for her. See id. at 639. When the mother told him she was considering placing the child for adoption, he told her that he wanted the child. See id. Nonetheless, before the birth of the child, the mother covertly planned to place the child for adoption, and upon the child's birth, she relinquished the child to social services. See id. Instead of telling the father about the placement, she lied to him and said that the baby had died. See id., at 639 n.2. The mother soon told the father about her deception and the next day the father filed the acknowledgment. See id. at 640. Within three months, he had also filed a paternity suit and both he and the mother had filed notices to contest the adoption. See id. The Utah Supreme Court held that its acknowledgment statute did not violate the Equal Protection or Due Process Clauses and denied the father standing to contest the adoption. See id. Return to text.

[275] See Resnik, supra note 113, at 422. Return to text.

[276] Id. Return to text.

[276] Id. Return to text.

[277] See id. at 424. Return to text.

[278] See id. Return to text.

[280] See id. at See id. at 423. Return to text.

[281] See id. Return to text.

[282] Id. at 426. Return to text.

[283] See id. Return to text.