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11/05/91

The Committee that acted for the National Conference of Commissioners on Uniform State Laws in preparing the Uniform Putative and Unknown Fathers Act was as follows:

ARTHUR H. PETERSON, P.O. Box K, State Capitol, Juneau, AK 99811,

Chairman and Drafting Liaison

GEORGE C. BERK, Suite 902, 58 Weybosset Street, Providence, RI 02903

LEWIS C. GREEN, Suite 1830, 314 N. Broadway, St. Louis, MO 63102

PETER F. LANGROCK, P.O. Drawer 351, Middlebury, VT 05753

JOSEPH P. MAZUREK, P.O. Box 1715, Helena, MT 59624

INEZ SMITH REID, Suite 1100, 1120 Connecticut Avenue, N.W., Washington,

DC 20036

MICHAEL B. UNHJEM, 4510 13th Avenue, S.W., Fargo, ND 58121

EDMUND R. WOOD, Suite 200, 4728 L.B.J. Freeway, Dallas, TX 75240

RUTH-ARLENE W. HOWE, Boston College Law School, 885 Centre Street, Newton, MA 02159, Reporter

MICHAEL P. SULLIVAN, P.O. Box 35286, Minneapolis, MN 55435,

President (Member Ex Officio)

WILLIAM J. PIERCE, University of Michigan Law School, Ann Arbor, MI 48109,

Executive Director

ROBERT H. CORNELL, Suite 3700, 525 Market Street, San Francisco, CA 94105,

Chairman, Division E (Member Ex Officio)

JOHN W. WAGSTER, 8th Floor, Third National Bank, Nashville, TN 37219, Chairman

J. MAC DAVIS, P.O. Box 7882, Madison, WI 53707

ORLAN L. PRESTEGARD, Suite 702, 30 W. Mifflin Street, Madison, WI 53703

CLARENCE BROWN, American Bar Association

Section 1. Definitions 6

Section 2. Right to Determination of Paternity 9

Section 3. Notice of Judicial Proceedings for Adoption or Termination

of Parental Rights 11

Section 4. Notice of Judicial Proceedings Regarding Custody or Visitation 17

Section 5. Factors in Determining Parental Rights of Father 19

Section 6. Court Determinations and Orders 22

Section 7. Short Title 25

Section 8. Severability 25

Section 9. Effective Date 29

Section 10. Repeals 29

In 1972, the United States Supreme Court decided Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, holding, essentially, that an unwed father was entitled to a hearing on his fitness as a parent before his children could be taken from him in a dependency proceeding instituted by the state upon the death of the children's mother. That case presented a fairly stable, although unwed, family situation, but the court did not cite that factor as the basis for its decision. The following year, the Conference promulgated the 1973 Uniform Parentage Act (UPA). Sections 24 and 25 of that Act deal with notice of adoption proceedings and proceedings to terminate parental rights, and do so in a way that satisfies the Stanley requirements.

However, in the wake of the Stanley decision, especially its "infamous Footnote 9" (405 U.S. at 657, 92 S.Ct. at 1216), which mentions publication of notice to unknown respondents, many states, either through their enactments or through their legislative inaction, have demonstrated a need for guidance on the subject of some of the rights of unwed fathers. Also, more recent court decisions, some of which are cited below, have not provided sufficiently clear guidance. Therefore, it was felt that an Act dealing specifically with certain rights of unwed fathers would be appropriate and helpful. The intent of this putative father act is to codify United States Supreme Court decisions and to provide answers to some questions left by those decisions. It goes without saying that the mobility of fathers, mothers, and children urges uniformity among the states in their laws on this subject.

The NCCUSL Drafting Committee for this Act was appointed in the Fall of 1984 and met nine times, analyzing numerous court decisions and articles, and, at the last eight meetings, reviewing and revising drafts of this Act (called the "Uniform Rights of Putative Fathers Act" through Draft No. 7). At the first meeting, May 31 - June 1, 1985, Professor Harry Krause, of the University of Illinois College of Law, provided counsel. The third draft was presented for first reading by the Conference at the August 1986 annual meeting of the Conference. Professor Ruth-Arlene Howe, of the Boston College Law School, joined the committee, as reporter, in the Summer of 1986. The sixth draft was presented in a summarized second reading by the Conference at the August 1987 Annual Meeting. The eighth draft, with some modifications, was approved by the Conference at the August 1988 Annual Meeting.

States that have enacted the 1973 Uniform Parentage Act (UPA) should consider (1) enacting this Uniform Putative and Unknown Fathers Act as a second article in the UPA's chapter, (2) repealing Section 25(b)-(e) of the UPA, and (3) making other, more minor UPA amendments to help assure consistency of terminology and approach. States that have not enacted the UPA should consider enacting both of these Acts, upon consideration of the three points just mentioned.

During the three-year development of this Act, the Drafting Committee corresponded with more than three dozen individuals and organizations nationwide. Although not agreeing with every point submitted, the Drafting Committee greatly benefited from the comments and suggestions of many people, and would especially like to thank Mark Hardin, Assistant Director of the American Bar Association's National Legal Resource Center for Child Advocacy and Protection (now called the Center for Children and the Law); Myra Sun, Staff Attorney, and Laurie Woods, Director, of the National Center on Women & Family Law, Inc.; and Nancy S. Erickson, formerly R.J. Hughes Distinguished Visiting Professor of Law, Seton Hall Law School, and Professor of Law, Ohio State University College of Law.

Review of United States Census Bureau statistics reveals a dramatic increase in out-of-wedlock births. In 1960, "illegitimate" births amounted to only 5.3 percent of all births, while in 1980 they were 18.4 percent of all births. Then, in 1985, 828,200 out-of-wedlock births represented 22 percent of the 3.7 million births for that year. Thus, every fourth or fifth child born in 1985 had a putative or unknown father.⁽¹⁾ Only one out of every four of this group of 828,200 children might eventually be adopted. (With annual reported adoptions nationwide totaling approximately 150,000, fewer than 20 percent of this group of 828,200 children might eventually be adopted.)

There is no indication that the percentages of out-of-wedlock births will not continue to increase, especially in light of the rapidly increasing population of unmarried cohabiting couples. In 1988, 2.6 million unmarried couples were reported as living together, an increase from 1.9 million in 1985. About 31 percent of these unmarried cohabitants, or 802,000, had children under 15 in their households. This was a fourfold increase over the 200,000 counted in the 1970 census.⁽²⁾ Unmarried fathers are not simply ones who can be categorized as absent or uncaring fathers. Clearly, there is an expanding population of unwed men who wish to play a role in the upbringing of their children. There also has been a renewed societal emphasis upon early establishment of paternity and vigorous enforcement of child support obligations (see the federal Child Support Enforcement Amendments of 1984 [P.L. 98-378], the Family Support Act of 1988 [P.L. 100-485], and the many subsequent state statutory enactments). Thus, this Act's attempt to clarify certain aspects of the legal status of putative and unknown fathers, a group that is expanding annually at an astounding rate, is a timely endeavor.

One of the major questions confronting the Drafting Committee was the proper scope of the proposed Act. In the context of the rights of putative fathers, the question is whether the Act should cover:

- notice only;

- notice, visitation, custody, and termination of parental rights in connection with adoption and other proceedings;

- some combination of, but less than all of, those four sets of issues;

- additional matters, such as inheritance, the father's right to legal counsel in child-related proceedings (see, Lassiter v. Dept. of Soc. Serv. of Durham County, 452 U.S. 18, 34, 68 L.Ed.2d 640, 101 S.Ct. 2153, 2163 (1981)), etc.

This Act follows the second of these alternatives. In terms of implementing Stanley and its progeny, the notice provisions in Sections 3(a) and (g) and 4(a), and the factors relevant to judicial determination of a father's rights in Section 5, are probably the most important provisions in this Act.

This Act does not apply to a divorce or marital dissolution proceeding or subsequent child custody modification proceeding. This Act is not a substitute for a parentage act and does not replace anything in a state's marriage and divorce statutes. Except for the bracketed Section 2, briefly stating the right of a putative father to seek a determination of paternity (a section to be used in states that have neither the UPA nor other, comparable law), this Act is not intended to provide separate remedies. It is primarily intended to clarify existing requirements regarding notice to putative fathers, determination of their parental rights, and certain related procedures.

Some provisions in this Act are based on provisions of the UPA. Some of them stay close to the UPA wording, while others have been substantially and significantly rewritten. Earlier drafts of this Act included sections based on provisions of the revised Uniform Adoption Act (1971), which is again being revised by a committee of the Conference. They were deleted upon the Drafting Committee's determination that this Act should focus on putative fathers and that provisions affecting other people should be kept to a minimum.

This Act addresses the issues involved in the following line of cases:

United States Supreme Court:

- Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187 (1965);

- Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208 (1972);

- Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549 (1978);

- Parham v. Hughes, 441 U.S. 347, 99 S.Ct. 1742 (1979);

- Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760 (1979);

- Lassiter v. Department of Social Services of Durham County, 452 U.S. 18, 101 S.Ct. 2153 (1981);

- Santosky v. Kramer, 455 U.S. 743, 102 S.Ct. 1388 (1982);

- Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985 (1983).

State Courts:

- Adoption of Walker, 468 Pa. 165, 360 A.2d 603 (1976);

- State ex rel. J.D.S. v. Edwards, 574 S.W.2d 405 (Mo. 1978);

- Brauch v. Shaw, 432 A.2d 1 (N.H. 1981);

- In re Baby Girl S., 628 S.W.2d 261 (Tex. App. 1982), vacated sub nom. Kirkpatrick v. Christian Homes of Abilene, Inc., 460 U.S. 1074, 103 S.Ct. 1760 (1983);

- In re Baby Girl M., 141 Cal. App.3d 432, 191 Cal. Rptr. 339 (App. 1983); In re Baby Girl M., 207 Cal. Rptr. 309, 688 P.2d 918 (Cal. 1984); and In re Baby Girl M., 191 Cal. App. 3d 786, 236 Cal. Rptr. 660 (Cal. App. 4 Dist. 1987);

- Michael U. v. Jamie B., 39 Cal.3d 789, 705 P.2d 362, 218 Cal. Rptr. 39 (1985);

- In re Adoption of Baby Boy Doe, 717 P.2d 686 (Utah 1986);

- In the Interest of McLean, 725 S.W.2d 696, 55 U.S.L.W. 2474 (Texas 1987);

- White v. Mertens, 225 Neb. 241, 404 N.W.2d 410 (1987).

It is important to note that, during its 1988-89 term, the U.S. Supreme Court's rulings in two cases demonstrated an unwillingness to accord any new rights to unwed fathers. See In re Baby Girl M., 191 Cal. App.3d 786, 236 Cal. Rptr. 660 (Cal. App. 4 Dist. 1987), cert. granted sub nom. Edward McNamara v. County of San Diego Department of Social Services (No. 87-5840, 1987 October Term, dismissed 12/6/88 for lack of jurisdiction due to want of a properly presented federal question); and Michael H. and Victoria D. v. Gerald D., 491 U.S. 110, 105 L.Ed.2d 91, 109 S.Ct. 2333 (1989), a five-opinion decision of the court, declaring, essentially, that California's statutory preclusion from establishing a legal parent relationship did not violate the substantive or procedural due process rights of a biological father of a child born to a woman married to another man; for the California court's opinion in Michael H., see 191 Cal. App.3d 995, 236 Cal. Rptr. 810 (Cal. App. 2 Dist. 1987).

The fundamental objective underlying this Act is the protection of the best interest of the child. The child's interest includes support, inheritance, and emotional relationships with both parents, whether identified or unidentified. At the same time, this Act seeks to protect (1) the efficiency and security of the adoption process, (2) the mother from harassment by the father, and (3) the legitimate interests of the father who wants to maintain or establish and develop a parental relationship with his child. This Act seeks to accommodate that objective and those protections with the various state and federal constitutional requirements.

SECTION 1. DEFINITIONS. In this [Act]:

(1) "Man" means a male individual of any age.

(2) "Putative father" means a man who claims to be, or is named as, the biological father or a possible biological father of a child, and whose paternity of the child has not been judicially determined, excluding:

(i) a man whose parental rights with respect to the child have been previously judicially terminated or declared not to exist;

(ii) a donor of semen used in artificial insemination or in vitro fertilization whose identity is not known by the mother of the resulting child or whose semen was donated under circumstances indicating that the donor did not anticipate having an interest in the resulting child;

(iii) a man who is or was married to the mother of the child, and the child is born during the marriage [or within 300 days after the marriage was terminated by death, annulment, declaration of invalidity, divorce, or marital dissolution, or after a decree of separation was entered by a court];

(iv) a man who, before the birth of the child, attempted to marry the mother of the child in apparent compliance with law, although the attempted marriage is, or could be declared, invalid, and:

(A) if the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage [, or within 300 days after its termination by death, annulment, declaration of invalidity, divorce, or marital dissolution]; or

(B) if the attempted marriage is invalid without a court order declaring its invalidity, the child is born during, or within 300 days after the termination of, cohabitation; and

(v) a man who, after the birth of the child, married or attempted to marry the mother of the child in apparent compliance with law, although the attempted marriage is, or could be declared, invalid, and:

(A) has acknowledged his paternity of the child in a writing filed with the [appropriate court or Vital Statistics Bureau];

(B) with his consent, is named as the child's biological father on the child's birth certificate; or

(C) is obligated to support the child under a written promise or by court order.

(3) "Unknown father" means a child's biological father whose identity is unascertained. However, the term does not include a donor of semen used in artificial insemination or in vitro fertilization whose identity is not known to the mother of the resulting child or whose semen was donated under circumstances indicating that the donor did not anticipate having any interest in the resulting child.

Paragraph (1) defines "man" to include all male humans. The age element is the significant definitional feature. It has been suggested that use of the word "man" throughout this Act should be changed to "male individual" since "man" might connote adulthood and the Act should cover under-age progenitors as well as adults. (The UPA also uses "man.") Rather than change the wording throughout the Act, a definition of "man" has been added. Although objection to calling a 14-year-old father a "man" was raised at the August 7, 1986 floor session of the Conference, it would seem that for purposes of procreation and thus of this Act that individual is a man.

Paragraph (2) was originally taken from an early working draft (11/5/81) of the American Bar Association Family Law Section's Model State Adoption Act (which has not yet, as of the date of promulgation of this putative fathers Act, been adopted as a product of the ABA). It has been thoroughly revised for this putative fathers Act. To be consistent with the Uniform Parentage Act, and to use a term that the Drafting Committee felt is more commonly understood while still being more flexible in anticipation of the "new biology," the term "natural father" appeared in some earlier drafts of this Act as a substitute for the ABA's "father of genetic origin." Later, "biological" was substituted for "natural." It is believed that "biological" and "genetic" are essentially synonymous in this context, but that "biological" is more commonly understood.

The "putative father" definition includes a clause to make clear that a man cannot keep the status of "putative father," and thus is not entitled to notice of subsequent proceedings involving a particular child under Sections 3 and 4, once his parental rights have been judicially terminated or declared not to exist. Also, under this definition, a prior judicial determination of his parenthood, whether resulting from some sort of paternity action or from an adoption, leaves a man outside the coverage of this Act.

The "putative father" definition includes the descriptive phrase "who claims to be or is named as." This allows for separate (and, we believe, clearer) treatment of the "unknown father," a person with whom this Act must, and does, also deal (primarily because of Footnote 9 in Stanley).

Part of paragraph (2) excludes from the definition donors of semen used in artificial insemination or in vitro fertilization whose identity is not known by the mother. This wording should provide latitude to apply the exclusion to the use of sperm from either a commercial sperm bank or a self-help network. Thus, it is left to other law, such as a "new biology" Act, to deal with the known donor of sperm used in artificial insemination. This exclusion covers donors who might be known to the attorney or doctor involved in arranging the insemination, but not known to the mother at the time of the insemination. It also covers the situation of mixing semen from more than one donor, where the mother might know who the donors are but not know whose semen produced the child. In other words, where there is an "anonymous" donation of semen without either the man or the woman anticipating that the man will have an interest in the child, this Act provides no rights to the donor nor does it impose any obligations on the court, the mother, or other interested parties with respect to the donor.

In contrast, the general pattern of 29 state statutes on artificial insemination seems to authorize such insemination for a married woman by a licensed physician upon the written consent of the woman and her husband. The resulting child is treated as the "natural and legitimate" child of the two spouses. See, for example, Alaska Statute 25.20.045. See also, UPA Section 5. Cf. Jhordan C. v. Mary K., 224 Cal. Rptr. 530 (Cal. App. 1 Dist. 1986), holding that a sperm donor was the legal father of a child born to a single woman where insemination was not by a physician and the mother selected the donor. Although the mother was given custody, the father's paternity was determined and he was allowed visitation. In accord, C.M. v. C.C., 337 A.2d 821 (N.J. 1977).

Part of UPA Section 4, on presumed fathers, has been incorporated into the definition of "putative father," as an exclusion. This is part of the effort to sharpen this Act's focus on putatives. Thus, for the purposes of this Act, a putative father is not one who has married the mother (whether or not the marriage was valid). This Act's definition does not, however, exclude all of the fathers whom the UPA's Section 4(a) describes as presumed. Still treated as "putative" are those who are described in the UPA's Section 4(a)(4) and (5). Thus Peter Stanley is a putative father under this definition, whereas, under the UPA, he is a presumed father. States that have not enacted the UPA but that have comparable law on presumed fathers should also be alert to this slight difference.

The phrases regarding a time period of 300 days are bracketed in Section 1(2)(iii) and (iv)(A) in response to comment and concern expressed from the floor during the Conference's first reading of this Act (1986) that, in states granting a divorce on grounds of living apart for six months or more, the date for triggering the running of the 300 days might need to be the date of separation as shown in the divorce papers.

In the lead-in lines of subsection (2)(iv) and (v), commas have been inserted around the phrase "or could be declared" to resolve the ambiguity of the UPA's unpunctuated version. A different meaning would be achieved by putting the commas around "or could be."

The definition of "unknown father," provides a handy reference to the biological father whose identity is not known to the petitioner or, in some instances, to the mother herself. In some cases, the petitioner who is not the mother might not know the identity of the father simply because the mother either does not know or, for whatever reason, will not tell. (See, In the Matter of Karen A.B., 513 A.2d 770 [Del. 1986], where the mother had refused to identify the unwed father and the Delaware Supreme Court held that a mere biological link did not merit Due Process protection, citing Lehr v. Robertson, 463 U.S. 248, 261, 103 S.Ct. 2985, 2993, 77 L.Ed.2d 614 [1983]. That father had not demonstrated a commitment to the responsibilities of parenthood, and, in fact, did not even know of the child's existence. The court placed great reliance on what it determined to be in the child's best interest.)

This Act does not define "parental rights." It is assumed that the term includes whatever rights existing state law accords it.

[SECTION 2. RIGHT TO DETERMINATION OF PATERNITY.

(a) A putative father may bring an action to determine whether he is the biological father of a particular child [, in accordance with [applicable state law],] at any time, unless his paternity or possible parental rights have already been determined or are in issue in pending litigation.

(b) An agreement between a putative father and the mother or between him and the child does not bar an action under this section [, unless the agreement has been judicially approved [under applicable state law]].]

This section is based on Section 6(a) and (d) of the Uniform Parentage Act. It is bracketed because states that have already enacted the UPA or comparable legislation on the judicial determination of paternity should not enact this section. They probably should substitute a provision that merely serves as a cross reference to that other law (an approach taken in earlier drafts of this Act). Research by the Drafting Committee's reporter indicates that no state absolutely bars a putative father from bringing some sort of action to establish his paternity, unless the bar is a statutory conclusive presumption of paternity in another man, as in California (see West's Ann. Cal. Evid. Code Sec. 621).

As noted above in the Prefatory Note, the U.S. Supreme Court, during its 1988-89 term, decided the California case, Michael H. and Victoria D. v. Gerald D., 491 U.S. 110, 105 L.Ed.2d 91, 109 S.Ct. 2333 (1989), issuing five separate opinions in the process. The key questions raised were whether either the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution is violated by a state's creation of a conclusive presumption of paternity based on the marital status of the mother at the time of birth. Justice Antonin Scalia, writing for a plurality of the court (only three justices signed his lead opinion), declared that California's conclusive presumption did not violate either the substantive or procedural due process (or equal protection) rights of the biological father, even though (1) there was clear and convincing scientific evidence of the putative father's paternity, (2) there was no full evidentiary hearing held on paternity or the best interest of the child, (3) the mother acknowledged the putative father's paternity, (4) the putative father had volunteered emotional and financial support of the child, and (5) the putative father had lived with the mother and child for a period of time.

While an opinion from such a divided court will be narrowly construed, nevertheless it sends a chilling message to those who may father a child of a married woman that, even if they "act like a father" and "develop a relationship with their offspring," the sanctity of the "unitary marital family" may be upheld. However, certain recent state court decisions, such as C.C. v. A.B., Mass. Sup. Jud. Ct., 406 Mass. 679 (2/19/90), 16 FLR 1328; Smith v. Cole, La. Sup. Ct. No. 89-C-1134 (12/11/89), 16 FLR 1087; and Michael K. T. v. Tina L. T., W.Va. Sup. Ct. App. No. 18989 (12/21/89), 16 FLR 1149, indicate that there may be some weakening of the conclusive presumptions based merely on the marital status of the mother at the time of birth.

It has been suggested that the right to a determination of paternity need only be referred to in the commentary because the UPA already provides for it. However, since the thrust of this Act is to clarify the rights of putative fathers, it is appropriate to state this right in the text of the Act. This statement of the right, however, does not suggest that bringing a paternity action is the only way that a putative father's rights may be protected.

This version of the UPA's Section 6, while including the UPA's timing element ("at any time"), does not include the provisions on a paternity action being brought by someone other than a father. Nor does it include that Act's provisions on declaring the nonexistence of a father and child relationship. A major difference from that Act is that, whereas in that Act these provisions apply to "presumed" fathers (a term not used in this Act), in this Act they apply to putative fathers since this Act focuses on the rights of putative fathers. This Act is not intended as another parentage Act.

The bracketed language in subsection (b) is intended to pick up reference to a state's statutory law comparable to Section 13(a)(2) of the UPA, setting out certain protections with regard to such agreements.

In some states without specific provisions on actions to establish paternity, declaratory judgment is available. For example, citing cases from 13 states decided between 1974 and 1985, the court in White v. Mertens, 225 Neb. 241, 404 N.W.2d 410 (1987), held that, although the father of a child born out of wedlock need not be treated in all respects as a father of a child born in wedlock, the relationship between an unwed father and his child is not devoid of constitutional protection. Thus, absent any other statutory remedy, such a father has recourse to the declaratory judgment statutes to determine his status and rights. A provision such as in the UPA, or the abbreviated version here, removes any doubt.

SECTION 3. NOTICE OF JUDICIAL PROCEEDINGS FOR ADOPTION OR TERMINATION OF PARENTAL RIGHTS.

(a) In an adoption or other judicial proceeding that may result in termination of any man's parental rights with respect to a child, the person seeking termination shall give notice to every putative father of the child known to that person.

(b) The notice must be given (i) at a time and place and in a manner appropriate under the [rules of civil procedure for the service of process in a civil action in this State] or (ii) at a time and place and in a manner as the court directs and which provides actual notice.

(c) A putative father may participate as a party in a proceeding described in subsection (a).

(d) If, at any time in the proceeding, it appears to the court that there is a putative father of the child who has not been given notice, the court shall require notice of the proceeding to be given to him in accordance with subsection (b).

(e) If, at any time in the proceeding, it appears to the court that an unknown father may not have been given notice, the court shall determine whether he can be identified. The determination must be based on evidence that includes inquiry of appropriate persons in an effort to identify him for the purpose of providing notice. The inquiry must include:

(1) whether the mother was married at the probable time of conception of the child or at a later time;

(2) whether the mother was cohabiting with a man at the probable time of conception of the child;

(3) whether the mother has received support payments or promises of support, other than from a governmental agency, with respect to the child or because of her pregnancy;

(4) whether the mother has named any man as the biological father in connection with applying for or receiving public assistance; and

(5) whether any man has formally or informally acknowledged or claimed paternity of the child in a jurisdiction in which the mother resided at the time of or since conception of the child or in which the child has resided or resides at the time of the inquiry.

(f) If the inquiry required by subsection (e) identifies any man as the unknown father, the court shall require notice of the proceeding to be given to him pursuant to subsection (b). If the inquiry so identifies a man, but his whereabouts are unknown, the court shall proceed in accordance with subsections (b) and (g).

(g) If, after the inquiry required by subsection (e), it appears to the court that there may be an unknown father of the child, the court shall consider whether publication or public posting of notice of the proceeding is likely to lead to actual notice to him. The court may order publication or public posting of the notice only if, on the basis of all information available, the court determines that the publication or posting is likely to lead to actual notice to him.

Section 3 is derived from Section 25 of the UPA, but deals with notice only to putative and unknown fathers. It does so only for adoption proceedings and various other child "care and protection" proceedings that could result in a dispositional order terminating parental rights (see subsection (a)). It is the intent of the Act that there be no undue intrusion into the law of marriage and divorce. This section deals neither with custody and visitation nor with presumed or judicially declared fathers. Custody and visitation are dealt with in Section 4.

Subsection (a) requires that notice be given to all putative fathers known to the person seeking termination. Subsection (b) provides for both traditional service of civil process and discretionary employment, by the court, of nontraditional methods of providing actual notice. Such nontraditional ways of providing actual notice could include a telephone call, a personal visit, an informal note, or any other way of providing actual notice. The reason for this is to allow the court to be sensitive to the various privacy interests of the persons involved which might be adversely affected by traditional means of serving civil process. For the purpose of appellate review, the record must include appropriate notation of notice having been given.

Subsection (b) is intended to maximize options available to the court and hence to protect a father's right to notice. This, in turn, protects the security of a child's future adoption. In determining whether to direct an alternative form of notice, the court may consider, and, when they conflict, balance such factors as the privacy interests of the parents, the societal interest in the permanency and stability of a final judicial disposition, and the father's procedural due process right to notice. Thus, a court's power to order publication or posting is limited to those situations described in subsection (g), when a determination is made that actual notice is likely to be effected. There will be some situations in which the father will not want to receive such a notice and will be more concerned about his own "right to privacy" than his right to notice (e.g., when he is married to another woman).

Subsection (b) also allows flexibility in the content of the notice that must be given when it is not possible to locate the identified putative father. For example, if notice is published in the newspaper, it need not name the mother. A notice such as the following should alert the putative father as to his need to assert his rights:

To (name of putative father):

You are named as a party in Case No. __________, and must act within _____ days by filing legal papers. You might need the assistance of an attorney. You can obtain further information by . . . .

Your failure to respond can result in a judgment against you.

Subsections (c) and (d) are intended to pick up situations such as that in Lehr v. Robertson where, although the biological father did not avail himself of the putative fathers registry, he filed a "visitation and paternity" petition in another local court and the judge in the adoption proceeding knew who the biological father was and where he could be located (yet did not direct that he be notified of the adoption proceeding).

In subsection (e), in order to provide some protection to putative fathers who might not know of the proceeding or of their fatherhood, especially in those situations where the mother may be reluctant to reveal information, further inquiry is required whenever it becomes apparent that a possible father has not been notified. It is contemplated that various aspects of the inquiry will be conducted by the judge, court personnel, or the agency or person initiating the proceeding, as directed by the judge.

The list of investigative approaches in subsection (e) includes a reference to information the mother might have furnished when seeking or receiving public assistance. It is assumed that whatever confidentiality statutes might protect that information would not preclude its release to the court when attempting to provide for the best interest of the child. Also, although this investigative avenue has been criticized for subjecting poor women to an approach to which more well-to-do women would not be subject, there is no reason that a child born to a poor mother should not be afforded the protection of this rather obvious possible source of information.

The "and" at the end of subsection (e)(4) is intended to convey the idea that an inquiry covering fewer than all of those avenues is not adequate unless it has turned up the father.

Subsection (f) governs the giving of notice to any possible father identified by the inquiry required by subsection (e).

Subsection (g) addresses only the circumstance of an unidentified ("unknown") father. Publication or public posting is virtually ruled out, unless the court determines that that action is likely to lead to actual notice to the appropriate man. Although subsection (g) is based on the UPA's Section 25(e), there has been a change of emphasis and a relatively minor substantive change. In addition, the UPA's brackets around that provision have been deleted.

Whereas the UPA's Section 25(e) provides that the judge shall determine whether publication is likely to lead to identification, and, if the judge determines that publication is likely to lead to identification he or she must order publication, prior drafts of this Act provided that the judge may not order publication unless he or she determines that it is likely to lead to ... . Draft No. 6 of this Act introduced another variation (still present): "... may order ... only if ... ." The substantive change is that, rather than speaking of publication "identifying" the father, as the UPA does, this subsection focuses on providing notice to the father.

Many people recognize that publishing and posting such notices to unnamed and unknown fathers are unlikely either to give actual notice or to ferret out facts relating to the father's identity, especially if the notice does not state the sort of information that would unnecessarily subject the mother and child to an invasion of privacy, embarrassment, and stigma. Given this Act's investigation requirement and the court's obligation to determine the likelihood of publication or posting accomplishing its purpose, it would seem that all reasonable efforts will have been undertaken in the protection of the biological father's right to notice. Going beyond the procedure set out here could merely subject the mother and child to that potential invasion of privacy, embarrassment, and stigma, and to the unnecessary expense and delay of performing a probably useless act. Notice by publication and posting should not be regarded as a security blanket for lawyers and their clients wanting to feel reassured that they have "done everything they could."

As indicated in the Prefatory Note, this Act seeks to protect and balance the interests of all of the parties, including the child; the scale should not be weighted in favor of an unknown or unidentified (and perhaps unidentifiable) father. Unless there is some reasonable likelihood that publication or posting will lead to actual notice, the mother's and child's interest in privacy and the public interest in an efficient and expeditious adoption process militate against publication and posting of notice. It would appear that this is all that is required by Footnote 9 in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208 (1972), and its progeny.

If the inquiry under subsection (e) turns up enough information to identify a person, with name and address, then notice must conform to subsection (b). If inquiry only establishes that an unidentified person is the father, then the court must confront the issue of whether publication or public posting can successfully provide notice to the proper person. To maximize the chances of any notice reaching the proper person, it might have to include the names of the mother and the child, as well as other information that might sorely infringe upon the mother's privacy rights and subject her to embarrassment and ridicule within her community. Under subsection (g), however, the court has discretion to fashion a particularized notice that might be posted only where it would be most likely to provide actual notice to the father.

Subsection (g) is silent as to the time or manner of publication and posting, or the required proof of notice to be filed, because the committee believes that such language would be superfluous. Each state's rules of civil procedure should cover those points.

It has been suggested that this Act be more specific as to the content of notices, especially those published or posted under subsection (g). The Conference has decided not to include such a provision.

Relevant to notice procedures, it should be observed that this Act does not include provisions on a putative fathers registry. (Basically, under such a law, notice must be given to men who register as fathers of particular children.) At least 11 states have such registries: Idaho, Michigan, Montana, Nebraska, New York, North Carolina, Oklahoma, Tennessee, Texas, Utah, and Wisconsin. Nor does the Act include language like that in UPA Section 4(a)(5), regarding filing written acknowledgements of (or, as in Draft No. 6 of this Act, statements of intent to claim) paternity. The Act does not enable a man to interfere with or delay (or possibly discourage altogether) adoptions, custody proceedings, etc., by simply filing a notice of intent to claim paternity. The mother must be given an opportunity to dispute that claim, without the burden being on her to bring an action under UPA Section 4(b) and to disprove the claim only by "clear and convincing evidence."

The Act does not include a putative fathers registry requirement for, essentially, three reasons: (1) while "ignorance of the law is no excuse," most fathers or potential fathers - even very responsible ones - are not likely to know about the registry as a means of protecting their rights, and the objective is providing some actual protection, not relying on a cliche more relevant to the criminal law; (2) individual state registries do not protect responsible fathers in interstate situations; and (3) since the registries rely on unsupported claims, their accuracy is in doubt and their potential for an invasion of privacy and for interference with matters of adoption, custody, and visitation is substantial. It has also been pointed out that such a registry could provide a means for blackmailing the mother. The registry can, however, provide a simple (albeit "hard-nosed" and potentially unjust) solution when a father fails to register, as in Lehr v. Robertson.

Paternity registration statutes were held unconstitutional as applied to two fathers in separate decisions in Nebraska and Utah. As is typical under such statutes, in both states a father's consent to the adoption of his out-of-wedlock child is dispensed with unless he files a notice of intent to claim paternity. The Nebraska statute requires filing within five days after the child's birth, but that state's supreme court (in Application of S.R.S., 408 N.W.2d 272 (Neb. 1987)) ruled the law inapplicable to a father who lived with the mother of his child before and after the child was born, and who never had occasion to formally claim his paternity until after the mother left him and placed the child for adoption. The Utah statute provides that the claim must be registered before the filing of a petition for adoption of the child. The Utah Court of Appeals (in Matter of K.B.E., 740 P.2d 292 (Utah App. 1987)) found that a father who filed his claim on the day his child was born failed to timely file under the statute where the mother and her grandfather had filed an adoption petition only hours before; however, the court said that to apply the statute in such circumstances would violate the father's constitutional rights.

SECTION 4. NOTICE OF JUDICIAL PROCEEDINGS REGARDING CUSTODY OR VISITATION.

(a) The petitioner in a judicial proceeding to change or establish legal or physical custody of or visitation rights with respect to a child shall give notice to every putative father of the child known to the petitioner, except a proceeding for annulment, declaration of invalidity, divorce, marital dissolution, legal separation, modification of child custody, or determination of paternity.

(b) The notice must be given (i) at a time and place and in a manner appropriate under the [rules of civil procedure for the service of process in a civil action in this State] or (ii) as the court determines will likely provide actual notice.

(c) If, at any time in the proceeding, it appears to the court that there is a putative father of the child who has not been given notice of the proceeding, the court shall require notice of the proceeding to be given to him pursuant to subsection (b).

(d) If, at any time in the proceeding, it appears to the court that there may be an unknown father who has not been given notice of the proceeding, the court, in the best interest of the child, may attempt to identify him pursuant to Section 3(e) and require notice of the proceeding to be given to him pursuant to Section 3(f) and (g).

(e) A putative father may participate as a party in a proceeding described in subsection (a).

This section addresses notice of custody and visitation proceedings separately from the section on adoption and termination of parental rights. From the perspective of a child, access to and continuity of contact with a male biological parent might be very important and necessary for healthy growth and development, even if that person is not able to have day-to-day responsibility for total physical care and custody.

Only known putative fathers need be given notice of a custody proceeding, because in a custody proceeding parental rights are not subject to termination. However, this section recognizes the importance, especially in the context of a state proceeding based on allegations of child mistreatment or neglect by the mother, of giving notice to a putative father who, if brought into the situation, might prove to be a positive resource and support for the child. In addition, subsections (c) and (d) provide for the court to order notice and, if necessary, inquiry like that specified in Section 3 so that the stability of a child's environment may more readily be secured. For example, the immediate effort might be to make a voluntary or involuntary temporary change in physical custody of the child, but with a recognition that, at a later point, termination of parental rights might be necessary. Early notice will, it is hoped, avoid delay and provide greater security to the child when that later point is reached.

As with Section 3, marriage-termination and subsequent child custody modification proceedings are not covered by this section.

Clark Domestic Relations, 2nd Ed., sec. 4.5, n. 16, cites a group of cases that have held that an unwed father has "a constitutional right to visitation upon the same terms as would the father of a legitimate child under Stanley v. Illinois." These include: La Grone by Bridger v. La Grone, 238 Kan. 630, 713 P.2d 474 (1986) (custody of one child to the mother, of the other to the father); Phillips v. Horlander, 535 S.W.2d 72 (Ky. 1974); R. v. F., 113 N.J.Super. 396, 273 A.2d 808 (1971); Pierce v. Yerkovich, 80 Misc.2d 613, 363 N.Y.S.3d 403 (Fam. Ct. 1974); J.M.S. v. H.A., 161 W.Va. 433, 242 S.E.2d 696 (1978).

A recent case on point is the 1987 Nebraska Supreme Court decision, White v. Mertens, discussed above under Section 2. The court, referring to dicta from the earlier Nebraska case of Carlson v. Bartels, 143 Neb. 680, 10 N.W.2d 671 (1943) stated that "paternity is a 'right,' 'status,' or 'legal relation' within the ambit of a declaratory judgment action." 404 N.W. 2d 410, 412. The court held that the relationship is not devoid of constitutional protection (id. at 413), and ordered visitation for the father.

The current supplement to 15 ALR 3d 887-892, Annot. "Right of Putative Father to Visit Illegitimate Child," lists many cases recognizing that a putative father has a right to visit his illegitimate child, unless it has been shown that visitation would be detrimental to the best interest and welfare of the child. For example: Forestiere v. Doyle, 30 Conn. Supp. 284, 310 A.2d 607 (1973) (father entitled to be heard on visitation); Griffith v. Gibson, 73 Cal. App.3d 465, 142 Cal. Rptr. 176 (1977); Maxwell v. LeBlanc, 434 So.2d 375 (La. 1983); Normand v. Barkei, 385 Mass. 851, 434 N.E.2d 631 (1982); People ex rel. Vallera v. Rivera, 39 Ill. App.3d 775, 351, N.E.2d 391 (1976) (visitation allowed only if father has acknowledged paternity, and should be conditioned on father's contributing to child's support); Pi v. Delta, 400 A.2d 709 (Conn. 1978). But see, contra, Camacho v. Camacho, 173 Cal. App.3d 214, 218 Cal. Rptr. 810 (1985) (trial court erred in conditioning visitation on father's making timely payments and on father's undergoing regular psychotherapy for indefinite period; support and visitation are independent rights accruing to benefit of child, and visitation could not be made contingent upon proper exercise of some other duty or obligation of parent).

And for cases holding that determination of a putative father's right to visitation must be governed by what is held to be in the best interest of the child, see (to list just a few): Gardner v. Rothman, 370 Mass. 79, 345 N.E.2d 370 (1976); State ex rel. Wingard v. Sill, 223 Kan. 661, 576 P.2d 620 (1978); Pearson v. Clark, 382 So.2d 482 (Miss. 1980); and Alice v. Ronald, 683 S.W.2d 307 (Mo. 1984).

SECTION 5. FACTORS IN DETERMINING PARENTAL RIGHTS OF FATHER. In determining whether to preserve or terminate the parental rights of a putative father in a proceeding governed by Section 3 or 4, the court shall consider all of the following factors that are pertinent:

(1) the age of the child;

(2) the nature and quality of any relationship between the man and the child;

(3) the reasons for any lack of a relationship between the man and the child;

(4) whether a parent and child relationship has been established between the child and another man;

(5) whether the child has been abused or neglected;

(6) whether the man has a history of substance abuse or of abuse of the mother or the child;

(7) any proposed plan for the child;

(8) whether the man seeks custody and is able to provide the child with emotional or financial support and a home, whether or not he has had opportunity to establish a parent and child relationship with the child;

(9) whether the man visits the child, has shown any interest in visitation, or, desiring visitation, has been effectively denied an opportunity to visit the child;

(10) whether the man is providing financial support for the child according to his means;

(11) whether the man provided emotional or financial support for the mother during prenatal, natal, and postnatal care;

(12) the circumstances of the child's conception, including whether the child was conceived as a result of incest or forcible rape;

(13) whether the man has formally or informally acknowledged or declared his possible paternity of the child; and

(14) other factors the court considers relevant to the standards for making an order, as stated in Section 6(d) and (g).

This section includes factors to be considered by the court. The basic thrust of the factors is to require ascertainment by the court of (1) whether there is any meaningful psychological bond between father and child; and (2) whether that bond or the potential for establishing such a bond should, in the child's best interest, be protected. See Section 6(c) and (d).

With many changes, the list of factors in this section is based on Professor Harry Krause's points-to-be-kept-in-mind outline (originally prepared as notes for oral presentation at the Drafting Committee meeting, 5/31/85). As set out here, the list covers the various categories of fathers, from the "casual progenitor" to the one who lived with the mother in a stable relationship. It also covers various descriptions of conduct, such as paying support, exercising visitation rights, and trying to "grasp the opportunity" to act as a parent. And, finally, it covers various descriptions of factual circumstances, such as the age of the child (objective) and the existence of a parent and child relationship (subjective).

In considering some of the factors listed, a court might wish to take note of a father's written acknowledgment of paternity, filed with the appropriate agency under a statute similar to UPA Section 4(a)(5), or a state's putative fathers registry. While its probative value might be slight, such a filing could be some evidence of intent to assume responsibility for the child and of an interest in having a parental relationship with the child.

To take one state as an example to compare with this section, the Official Code of Georgia Annotated, section 19-8-7(b)(1) and (2) sets out the following factors:

1. Whether the putative father has lived with the child;

2. Whether the putative father has contributed to the child's support;

3. Whether the putative father has made any attempt to legitimate the child;

4. Whether the putative father provided support for the mother (including medical care) either during her pregnancy or during her hospitalization for the birth of the child.

Under the Georgia law, if the court finds that there is evidence of any of these factors, it is to determine from the evidence whether that conduct by the putative father was sufficient to establish a familial bond between the putative father and the child.

It is thought that careful application of this Act's 14 factors will allow solid decision-making on behalf of both parents and their children. For example, consideration of factor 4 might reveal a significant relationship with another man, either defacto or by court order, and that to disrupt it would be detrimental to the child.

For another example, under factor 12, a court might find, as did the Appellate Division of the New York Supreme Court in In the Matter of Craig "V" v. Mia "W", 500 N.Y.S.2d 568 (4/3/86), that although a father committed the felony of rape in the third degree by fathering a child with a 17-year-old mother, he did not forfeit his right to establish paternity and gain custody, since he was not seeking merely to benefit from his wrongdoing, but, more importantly, to assume duties and responsibilities of supporting the child. Yet, in other cases, such as when rape was in the first degree, involving force, or when conception was the product of incest, the court might determine that it would be detrimental to the child to accord any parental rights to such a father. See the discussion in the dissenting opinion in S.J. v. L.T., 727 P.2d 789 (Alaska 1986), dealing with a rather bizarre set of facts.

This Act does not speak specifically about what weight the court should give to each factor in each type of proceeding or about which factors are of primary significance in the various types of proceedings. The court is specifically granted discretion to consider other, unlisted factors.

SECTION 6. COURT DETERMINATIONS AND ORDERS.

(a) If a man appears in a proceeding described in Section 3, other than as a petitioner or prospective adoptive parent, the court may:

(1) [in accordance with [applicable state law],] determine whether the man is the biological father of the child and, if the court determines that he is, enter an order in accordance with subsection (d); or

(2) without determining paternity, and consistent with the standards in subsection (d), enter an order, after considering the factors in Section 5, terminating any parental rights he may have, or declaring that he has no parental rights, with respect to the child.

(b) If the court makes an order under subsection (a), the court may also make an order (i) terminating the parental rights of any other man given notice who does not appear, or (ii) declaring that no man has any parental rights with respect to the child.

(c) If a man who appears in a proceeding described in Section 3 is determined by the court to be the father, the court, after considering evidence of the factors in Section 5, shall determine (i) whether a familial bond between the father and the child has been established; or (ii) whether the failure to establish a familial bond is justified, and the father has the desire and potential to establish the bond.

(d) If the court makes an affirmative determination under subsection (c), the court may terminate the parental rights of the father [, in accordance with [applicable state law],] only if failure to do so would be detrimental to the child. If the court does not make an affirmative determination, it may terminate the parental rights of the father if doing so is in the best interest of the child.

(e) If no man appears in a proceeding described in Section 3, the court may enter an order:

(1) terminating with respect to the child the parental rights of any man given notice; or

(2) declaring that no putative father or unknown father has any parental rights with respect to the child.

(f) If the court does not require notice under Section 3, it shall enter an order declaring that no putative father or unknown father has any parental rights with respect to the child.

(g) If a man appears in a proceeding described in Section 4 and requests custody or visitation based on a claim of paternity, the court shall either determine [, in accordance with [applicable state law],] whether he is the biological father of the child or, after considering the factors in Section 5, deny him the custody of or visitation with the child. If the court determines that he is the biological father, the court shall determine, after considering evidence of the factors listed in Section 5, whether or not to grant him custody or visitation and shall make such other orders as are appropriate. All orders issued under this subsection must be in the child's best interest.

(h) A court order under subsection (a)(2), (b), (d), or (e) terminating the parental rights of a man, or declaring that no man has parental rights, with respect to the child, is not a determination that the man is or is not the biological father of the child.

(i) [Six months] after the date of issuance of an order under this section terminating parental rights or declaring that no man has parental rights, no person may directly or collaterally challenge the order upon any ground, including fraud, misrepresentation, failure to give a required notice, or lack of jurisdiction over the parties or of the subject matter. The running of this period of limitation may not be extended for any reason.

Subsections (a) through (g) provide for a variety of court orders, depending upon the appearance or nonappearance of the father in the proceeding. If a man appears in the proceeding, subsection (a) authorizes but does not require the court to determine paternity. It also expressly provides for an order that no man has any parental rights with respect to the child. Under subsections (b)(i) and (e)(1), nonappearance after notice could result in a termination of parental rights. If there is no identified biological father, the court should terminate the unidentified biological father's parental rights so that crucial and timely planning for the child can proceed. The court has discretion to terminate the rights of a man who "does not appear." The court could decide not to enter either of the two kinds of order mentioned. This addresses the situation of an identified man who is unable to appear; an excusable nonappearance ought not require a termination.

Subsection (a) does not include references to claiming "custodial" rights. Under UPA Section 25(d), a father not only had to appear but had to claim custody of the child in order to avoid termination of his parental rights. The current opinion is that that should not be required.

In subsections (a)(1), (d), and (g), the phrase "in accordance with applicable state law" is in brackets to indicate that it is optional. States with law on the point should use the phrase (or a more specific citation); those without law on the point should not. See, Katz, Howe, and McGrath, Child Neglect Laws in America, Table X, on termination.

Subsections (c) and (d) attempt to take into account and distinguish between the two basic functions served by consideration of Section 5's factors: the determination of the existence of a familial bond, and the determination of the extent to which a father's parental rights should be judicially preserved.

The final version of this Act modifies earlier drafts' provision that no order may be "detrimental" to the child's best interest. That provision picked up a standard similar to the one in California Civil Code, Section 4600(c). That "not detrimental" standard, requiring a determination of whether an award of custody to the putative father would be detrimental to the child, is more protective of the father's rights than the mere "best interest of the child" standard, and is given only a very limited application in this Act. See In re Baby Girl M., 191 Cal. App. 3d 786, 236 Cal. Rptr. 660 (Cal. App. 4 Dist. 1987); In re Baby Girl M., 207 Cal. Rptr. 309, 688 P.2d 918 (Cal. 1984); and In re Baby Girl M., 141 Cal. App.3d 432, 191 Cal. Rptr. 339 (App. 1983). But see also Michael U. v. Jamie B., 39 Cal.3d 789, 705 P.2d 363, 218 Cal. Rptr. 39 (1985). The final language, in Section 6(d), applies the "not detrimental" standard only in termination proceedings and only to situations in which there is a familial bond between the father and child, or in which its nonexistence is justified and there is the potential for establishing one. This is viewed as serving the child, not just the father. The "best interest" standard applies to all other situations.

Subsection (g), applicable to Section 4 proceedings, closely parallels the approach taken for Section 3 proceedings. Under this subsection, if a man seeks custody or visitation, based on a claim of paternity, the court may either first determine paternity and then apply the Section 5 factors to decide whether it would be in the child's best interest to grant custody or visitation, or the court may simply apply the factors and determine that no custody or visitation would be appropriate. In the last sentence of subsection (g), the Drafting Committee had in mind UPA Section 15(e), which provides for orders "concerning the duty of support, the custody and guardianship of the child, the furnishing of bond or other security for the payment of the judgment, or any other matter in the best interest of the child."

Subsection (i) provides a statute of limitations for challenging a termination order, based on part of the UPA's Section 25(d). "Six months" is in brackets to allow enacting states a choice. Of the 16 states that have enacted the UPA in whole or in part, it appears that the majority have no provision comparable to Section 25(d), relying instead upon other state law. Montana uses the UPA's six-month provision, Hawaii and North Dakota set the limit at 30 days, and Colorado at three months.

Judicial decision makers should be sensitive to social workers' concerns about avoiding delays in securing a stable situation for a child, something considered vital to a child's healthy development. However, the statutory cutoff date should not be so close to the finality of the termination order itself as to raise due process issues. Under this Act's wording, the time begins running from the date of issuance of the order (rather than from the date it becomes final) because any rehearing, reconsideration, or appeal deadline will fall within the six-month deadline. To assure that whatever time period is selected will not be extended, an express prohibition on tolling the running of the limitation period is included. This reflects the overwhelming public policy favoring a stable environment for the child's development - a policy benefiting the individual child, the child's family, and the society as a whole.

SECTION 7. SHORT TITLE. This [Act] may be cited as the Uniform Putative and Unknown Fathers Act.

The Drafting Committee's assignment, and thus the primary concern, was to deal with issues pertaining to putative fathers. This Act attempts to focus on those issues. It tries to minimize the extent to which it must deal with other people: mothers, judicially determined fathers, and presumed fathers. But it also must deal with "unknown" fathers. Thus, a definition of "unknown father" has been included and the title refers to that category of father.

SECTION 8. SEVERABILITY. If any provision of this [Act] or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this [Act] which can be given effect without the invalid provision or application, and to this end the provisions of this [Act] are severable.

[SECTION 9. EFFECTIVE DATE. This [Act] takes effect ......................... .]

[SECTION 10. REPEALS. The following acts and parts of acts are repealed:

(1) .........................

(2) .........................

(3) .........................]

Section 10 is a boilerplate section intended to provide the legislature with a reminder to consider including repeal or amendment of those acts and parts of acts that are not in conformity with the provisions of this Act.

Such repealers might include sections relating to the general topics of adoption, child custody/support, and domestic relations. For example, the notice provisions of the UPA (or comparable law) should be amended. (Specifically, Section 25(b)-(e) of the UPA should be repealed.) Additionally, the legislature may need to examine the consistency of provisions concerning the status of parties with the procedures specified in this Act, such as provisions addressing the legitimation of children or the determination of legal or presumed parenthood. Finally, provisions affecting the types of court proceedings that relate directly to the provisions of this Act, such as those covering termination of parental rights, paternity, child care and protection, and adoption might need to be repealed or amended in light of the provisions of this Act.

1. Table No. 87. Births to Unmarried Women, By Race and Age of Mother: 1960 to 1965. 1988 Statistical Abstract of the United States (108th Edition, U.S. Dep't of Commerce).

2. Bureau of the Census. U.S. Dep't of Commerce. Current Population Reports Series P-20, No. 432. Table 5. Unmarried-Couple Households by Presence of Children: 1970 to 1988 in "Households, Family, Marital Status and Living Arrangements: March 1988" (Advance Report; issued September 1988).