In Re the Adoption of a Minor ( 1948 )

The majority states:

"The evidence is clear that the husband in the case at bar did not have access to his wife for a period of more than six hundred days prior to birth of the child, which is in excess of any possible period of gestation, hence the child is illegitimate."

The illegitimacy of the child having been clearly established, we must now look to the adoption statutes for our guidance. Rem. Supp. 1943, § 1699-4, provides:

"Written consent to such adoption must be filed prior to a hearing on such petition, as follows: . . .

"(b) If the person to be adopted be of legitimate birth or legitimized thereafter, and a minor, then by each of his living parents, except as hereinafter provided;

"(c) If the person to be adopted be illegitimate and a minor, then by his mother, if living, except as hereinafter provided; .. ."

Rem. Supp. 1943, § 1699-9, provides:

"The Court shall direct notice of any hearing hereunder to be given to any nonconsenting parent or guardian, if any, or any person or association having the care, custody or control of said child. . . . And provided further, That if the Court is satisfied of the illegitimacy of the child to be adopted, and so finds, then no notice to the father of such child shall be required. . . ." (Italics mine.)

There is no provision in the adoption statutes for notice to the husband of the mother of an illegitimate child. If there is any question as to the illegitimacy of the child of a married woman, then the court could, and should, require notice to be given to the husband. This would not be for the protection of the husband, but for the protection of the child, to save him from the stigma of being declared illegitimate. Here there was no necessity for such an act of caution on the part of the trial court. The presumption of legitimacy during coverture was entirely overcome. There is no doubt whatsoever but that the husband is not the father of the child.

The reason which influenced the trial court's action is clearly shown by his remarks at the close of the testimony.

"Now, certainly, isn't that man entitled to notice, when he is overseas, soldier in the armies of the United States? Isn't he entitled to know that his wife is guilty — has been guilty of infidelity, adultery, if you please, that the mother of this child has done that to him. Now, he's entitled to institute divorce proceedings and, indeed, even take his own child away from her. No, I don't believe it is the policy of the law that lawyers or judges or anybody else should compound felonies."

The majority was drawn into the same error when, after holding that the child was illegitimate, it concluded:

"Why should the wife's infidelity be hidden from the husband and he caused to remain tied to an unfaithful wife (whom he could never again trust) until the sordid facts are, as they will be in the future, brought to his attention? A pure public policy may not be preserved by temporary or permanent concealment of felony of the wife and her paramour."

I agree that, as a matter of pure public policy, a husband is entitled to know of his wife's unfaithfulness, but not in orthrough an adoption proceeding. This proceeding is solely and entirely for the benefit of the child, in order that he may be adopted by proper foster parents and be given an opportunity to start life on an equal footing with other more fortunate children. At no place in the adoption statute can be found any provision for notice of any kind to the husband of the mother of an illegitimate child.

In re Hickman, 170 S.W.2d (Mo.) 695, was an action for the adoption of an illegitimate child, consent for such adoption having been given by the mother. The Missouri statutes covering adoption are similar to ours. The trial judge denied the petition on the ground that the husband of the child's mother had not been notified. In reversing that ruling, the court said:

"Section 9609 requires the consent of the parents or surviving parent and guardian, if any, of the child. In substance it requires the consent of the legal custodian of the child. Section 9611 requires that notice must be given to the party or parties whose consent is required. Since in this case the evidence shows that the child, though born in lawful wedlock, is illegitimate, it follows that notice to the husband is not required. [Citing cases.]

"Under the facts before us here, it is apparent that the welfare of the child, which is a matter of chief concern in a case such as this, will be best subserved by permitting her adoption by the petitioners."

The order should be reversed.