405 U.S. 645 (1972), 70-5014, Stanley v. Illinois

Docket Nº:No. 70-5014
Citation:405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551
Party Name:Stanley v. Illinois
Case Date:April 03, 1972
Court:United States Supreme Court

Page 645

405 U.S. 645 (1972)

92 S.Ct. 1208, 31 L.Ed.2d 551




No. 70-5014

United States Supreme Court

April 3, 1972

Argued October 19, 1971



Petitioner, an unwed father whose children, on the mother's death, were declared state wards and placed in guardianship, attacked the Illinois statutory scheme as violative of equal protection. Under that scheme, the children of unmarried fathers, upon the death of the mother, are declared dependents without any hearing on parental fitness and without proof of neglect, though such hearing and proof are required before the State assumes custody of children of married or divorced parents and unmarried mothers. The Illinois Supreme Court, holding that petitioner could properly be separated from his children upon mere proof that he and the dead mother had not been married and that petitioner's fitness as a father was irrelevant, rejected petitioner's claim.


1. Under the Due Process Clause of the Fourteenth Amendment petitioner was entitled to a hearing on his fitness as a parent before his children were taken from him. Pp. 647-658.

(a) The fact that petitioner can apply for adoption or for custody and control of his children does not bar his attack on the dependency proceeding. Pp. 647-649.

(b) The State cannot, consistently with due process requirements, merely presume that unmarried fathers in general, and petitioner, in particular, are unsuitable and neglectful parents. Parental unfitness must be established on the basis of individualized proof. See Bell v. Burson, 402 U.S. 535. Pp. 649-658.

2. The denial to unwed fathers of the hearing on fitness accorded to all other parents whose custody of their children is challenged by the State constitutes a denial of equal protection of the laws. P. 658.

45 Ill.2d 132, 256 N.E.2d 814, reversed and remanded.

WHITE, J., delivered the opinion of the Court, in which BRENNAN, STEWART, and MARSHALL, JJ., joined, and in Parts I and II of which DOUGLAS, J., joined. BURGER, C.J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 659. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.

Page 646

WHITE, J., lead opinion

MR. JUSTICE WHITE delivered the opinion of the Court.

Joan Stanley lived with Peter Stanley intermittently for 18 years, during which time they had three children.1 When Joan Stanley died, Peter Stanley lost not only her but also his children. Under Illinois law, the children of unwed fathers become wards of the State upon the death of the mother. Accordingly, upon Joan Stanley's death, in a dependency proceeding instituted by the State of Illinois, Stanley's children2 were declared wards of the State and placed with court-appointed guardians. Stanley appealed, claiming that he had never been shown to be an unfit parent and that, since married fathers and unwed mothers could not be deprived of their children without such a showing, he had been deprived of the equal protection of the laws guaranteed him by the Fourteenth Amendment. The Illinois Supreme Court accepted the fact that Stanley's own unfitness had not been established, but rejected the equal protection claim, holding that Stanley could properly be separated from his children upon proof of the single fact that he and the dead mother

Page 647

had not been married. Stanley's actual fitness as a father was irrelevant. In re Stanley, 45 Ill.2d 132, 256 N.E.2d 814 (1970).

Stanley presses his equal protection claim here. The State continues to respond that unwed fathers are presumed unfit to raise their children, and that it is unnecessary to hold individualized hearings to determine whether particular fathers are, in fact, unfit parents before they are separated from their children. We granted certiorari, 400 U.S. 1020 (1971), to determine whether this method of procedure by presumption could be allowed to stand in light of the fact that Illinois allows married fathers -- whether divorced, widowed, or separated -- and mothers -- even if unwed -- the benefit of the presumption that they are fit to raise their children.


At the outset, we reject any suggestion that we need not consider the propriety of the dependency proceeding that separated the Stanleys because Stanley might be able to regain custody of his children as a guardian or through adoption proceedings. The suggestion is that, if Stanley has been treated differently from other parents, the difference is immaterial and not legally cognizable for the purposes of the Fourteenth Amendment. This Court has not, however, embraced the general proposition that a wrong may be done if it [92 S.Ct. 1211] can be undone. Cf. Sniadach v. Family Finance Corp., 395 U.S. 337 (1969). Surely, in the case before us, if there is delay between the doing and the undoing, petitioner suffers from the deprivation of his children, and the children suffer from uncertainty and dislocation.

It is clear, moreover, that Stanley does not have the means at hand promptly to erase the adverse consequences of the proceeding in the course of which his children were declared wards of the State. It is first

Page 648

urged that Stanley could act to adopt his children. But under Illinois law, Stanley is treated not as a parent, but as a stranger to his children, and the dependency proceeding has gone forward on the presumption that he is unfit to exercise parental rights. Insofar as we are informed, Illinois law affords him no priority in adoption proceedings. It would be his burden to establish not only that he would be a suitable parent, but also that he would be the most suitable of all who might want custody of the children. Neither can we ignore that in the proceedings from which this action developed, the "probation officer," see App. 17, the assistant state's attorney, see id. at 29-30, and the judge charged with the case, see id. at 16-18, 23, made it apparent that Stanley, unmarried and impecunious as he is, could not now expect to profit from adoption proceedings.3 The Illinois Supreme Court apparently recognized some or all of these considerations, because it did not suggest that Stanley's case was undercut by his failure to petition for adoption. Before us, the State focuses on Stanley's failure to petition for "custody and control" -- the second route by which, it is urged, he might regain authority for his children. Passing the obvious issue whether it would be futile or burdensome for an unmarried father -- without funds and already once presumed unfit -- to petition for custody, this suggestion overlooks the fact that legal custody is not parenthood or adoption. A person appointed guardian in an action for custody and control is subject to removal at any time without such

Page 649

cause as must be shown in a neglect proceeding against a parent. Ill.Rev.Stat., c. 37, § 705. He may not take the children out of the jurisdiction without the court's approval. He may be required to report to the court as to his disposition of the children's affairs. Ill.Rev.Stat., c. 37, § 705. Obviously then, even if Stanley were a mere step away from "custody and control," to give an unwed father only "custody and control" would still be to leave him seriously prejudiced by reason of his status.

We must therefore examine the question that Illinois would have us avoid: is a presumption that distinguishes and burdens all unwed fathers constitutionally repugnant? We conclude that, as a matter of due process of law, Stanley was entitled to a hearing on his fitness as a parent before his children were taken from him, and that, by denying him a hearing and extending it to all other parents whose custody of their children is challenged, the State denied Stanley the equal protection of the laws guaranteed by the Fourteenth Amendment.


Illinois has two principal methods of removing nondelinquent children from the homes of their parents. In a dependency proceeding, it may demonstrate [92 S.Ct. 1212] that the children are wards of the State because they have no surviving parent or guardian. Ill.Rev.Stat., c. 37, §§ 702-1, 702-5. In a neglect proceeding, it may show that children should be wards of the State because the present parent(s) or guardian does not provide suitable care. Ill.Rev.Stat., c. 37, §§ 702-1, 702.

The State's right -- indeed, duty -- to protect minor children through a judicial determination of their interests in a neglect proceeding is not challenged here. Rather, we are faced with a dependency statute that empowers state officials to circumvent neglect proceedings

Page 650

on the theory that an unwed father is not a "parent" whose existing relationship with his children must be considered.4 "Parents," says the State,

means the father and mother of a legitimate child, or the survivor of them, or the natural mother of an illegitimate child, and includes any adoptive parent,

Ill.Rev.Stat., c. 37, § 701-14, but the term does not include unwed fathers.

Under Illinois law, therefore, while the children of all parents can be taken from them in neglect proceedings, that is only after notice, hearing, and proof of such unfitness as a parent as amounts to neglect, an unwed father is uniquely subject to the more simplistic dependency proceeding. By use of this proceeding, the State, on showing that the father was not married to the mother, need not prove unfitness in fact, because it is presumed at law. Thus, the unwed father's claim of parental qualification is avoided as "irrelevant."

In considering this procedure under the Due Process Clause, we recognize, as we have in other cases, that due process of law does not require a hearing "in every conceivable case of government impairment of private interest." Cafeteria Workers v. McElroy, 367 U.S. 886, 894 (1961). That case explained that "[t]he very nature of due process negates any concept of...

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