Barlow, Matter of, Docket No. 60532

CourtSupreme Court of Michigan
Citation273 N.W.2d 35,404 Mich. 216
Docket NumberDocket No. 60532,No. 6,6
PartiesIn the Matter of Baby Boy BARLOW. Kevin Lee ROBARDS, Plaintiff-Appellant, v. Kilty Jean BARLOW, Defendant-Appellee. Calendar
Decision Date28 December 1978

Page 35

273 N.W.2d 35
404 Mich. 216
In the Matter of Baby Boy BARLOW.
Kevin Lee ROBARDS, Plaintiff-Appellant,
Kilty Jean BARLOW, Defendant-Appellee.
Docket No. 60532
Calendar No. 6.
Supreme Court of Michigan.
Argued June 7, 1978.
Decided Dec. 28, 1978.

Page 37

[404 Mich. 222] James K. Jesse, Buchanan, for plaintiff-appellant.

John F. Rohm, Berrien County Legal Services, St. Joseph, for defendant-appellee.

Seymour, Seymour, Conybeare & Straub by James M. Straub, St. Joseph, for amicus curiae Child and Family Services of Michigan, Inc.

RYAN, Justice.

In bringing this appeal, the plaintiff-appellant raises important questions of first impression arising under the Michigan Adoption Code, M.C.L.A. § 710.21 Et seq.; M.S.A. § 27.3178 (555.21) Et seq., effective January 1, 1975. Appellant asks us to reverse the Court of Appeals' affirmance of an order of the probate court terminating his parental rights, pursuant to the Adoption Code, to a child fathered by him and born out of wedlock on [404 Mich. 223] July 28, 1975. We conclude the probate court erred in finding that the best interests of the child mandated terminating appellant's rights.


On July 29, 1975, one day after the birth of the child we will call Baby Boy Barlow, his mother, the appellee in this case, voluntarily placed him with an agency, Child and Family Services, Inc., with the ultimate goal of seeing him placed in a home for purposes of adoption. Temporary care of the child has been provided pending the outcome of these proceedings.

On September 4, 1975, a statutory petition for hearing to identify the child's father and to determine or terminate his rights 1 was filed in the Berrien County Probate Court and a copy was served on appellant.

On September 23, 1975, prior to the scheduled September 30 hearing on the petition, the appellant filed a petition admitting paternity and praying for custody of the child.

At the September 30 hearing, it was determined that the parties had no objection to the court determining that appellant was the father of the child. It was also agreed that appellant would begin making regular child support payments for the care and welfare of the infant. A further hearing was then scheduled for October 27, 1975 to take up the matter of custody.

At the October 27, 1975 hearing, appellant testified that he was 19 years of age and had known the child's mother for approximately two years. He said that shortly after he learned that the appellee was expecting their child, he asked her to [404 Mich. 224] marry him. The parties eventually agreed to be married; a wedding was planned and finally cancelled.

During this period and until shortly before the child's birth, the parties discussed and received counseling concerning custody of the boy or his being placed for adoption. Appellant desired custody of the child; the child's mother preferred adoption. No resolution was reached.

Appellant admitted that he did not contribute to appellee's medical expenses associated with the child's birth or to the child's support until after receiving the petition for hearing.

Appellant testified that he had graduated from high school in June of 1975, had been employed since June of 1974 and was a foreman on the second shift at a factory in the area, and for much of the same time had also been holding a second, part-time job. He had saved some money and had made tentative plans with his mother and sisters to care for the child during his working hours.

A number of witnesses then gave favorable testimony concerning appellant's fitness to care for a child. Appellant then rested his case.

The appellee testified that she believed that the child's best interests would be served by placing him for adoption. Her opinion was concurred in by others, including placement workers associated with Child and Family Services.

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At the request of counsel, the matter was adjourned and during the succeeding months the parties attempted, without success, to amicably resolve the matter of custody.

At an additional hearing on June 8, 1976, appellant testified that he had, in the interim, purchased a home, that his earnings had increased, that he had been paying for the child's care and [404 Mich. 225] that he had visited with the child as often as possible.

Child and Family Services, Inc. reported that the child had been transferred to a second foster home about four months after his birth.

On July 27, 1976, the court rendered its decision and terminated appellant's parental rights. 2

An appeal as of right was taken to the Court of Appeals 3 which remanded the case to the probate court for more specific findings of fact.

That probate court's supplemental statement of findings recited that the father was not unfit to care for the child in the sense that term is used in cases involving abused, dependent or neglected children.

However, the court reaffirmed its conclusion that it would not be in the best interests of the child to award custody to his father based on a finding that appellant could not properly care for the child, that no emotional ties had developed [404 Mich. 226] between the child and his father, that appellant was not inclined to raise the child in his religion and that it would be better for the boy to be adopted by his "foster parents".

An order was entered terminating appellant's parental rights. The probate court's decision was affirmed by the Court of Appeals. In Matter of Baby Boy Barlow, 78 Mich.App. 707, 260 N.W.2d 896 (1977). We granted leave to appeal. 402 Mich. 856 (1978).


The time has long since passed when children born out of wedlock had no rights derived from their relationship to their natural parents and the parents had no rights with respect to their illegitimate children.

Justice (then Judge) Levin, writing for a panel of the Court of Appeals in In re T., 8 Mich.App. 122, 154 N.W.2d 27 (1967), reviewed the early history of the common law concerning custody of illegitimates.

"Originally, in English law, the illegitimate child was the ward of the parish because, in one of the less charming fictions of our early common law, he did not exist.

" 'The common law of England did not contemplate illegitimacy and, shutting its eyes to the facts of life, described an illegitimate child as Filius nullius.' Galloway v. Galloway (1955, HL), (1956) AC 299, 310, 311 (3 All.Eng.Rep. 429, 431)." 8 Mich.App. 122, 136, 154 N.W.2d 27, 33.

Consistent with the early common law rule that the mother of a Legitimate child had no custody [404 Mich. 227] rights, 4 the illegitimate,

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considered incapable of having a father known to the law, 5 was said to be a Filius nullius, the child of nobody, and a ward of the parish. Over time, the law developed to recognize custody rights to an illegitimate child, first of all in the mother only. 6

The general rule stated in the cases is that, as in the case of legitimate children, 7 the mother is the natural guardian of her child and has a primary right to his or her custody, subject always to the child's best interest. In re T., supra; Anno.: Right of mother to custody of illegitimate child, 98 A.L.R.2d 417. See also In re Mathers, 371 Mich. 516, 124 N.W.2d 878, 126 N.W.2d 722 (1963).

A number of courts have stated that, subject to the best interests of the child, after the mother the putative father of an illegitimate child has custody rights paramount to those of any other person. Caruso v. Pima County Superior Court, 100 Ariz. 167, 412 P.2d 463 (1966); In re Baby Boy Shady, 264 Minn. 222, 118 N.W.2d 449 (1962); Commonwealth ex rel. Human v. Hyman, 164 Pa.Super. 64, [404 Mich. 228] 63 A.2d 447 (1949); In Matter of Estate of Moore, 68 Wash.2d 792, 415 P.2d 653 (1966). See also Anno.: Right of putative father to custody of illegitimate child, 45 A.L.R.3d 216. Recognition of a superior right to custody in the father has been justified as derivative of statutory obligations to support the child, see E. g., In re State in Interest of Baby Girl M., 25 Utah 2d 101, 476 P.2d 1013 (1970); In Matter of Guardianship of C., 98 N.J.Super. 474, 237 A.2d 652 (1967); and as resulting from the court's deference to natural family relationships, In Matter of Fierro v. Ljubicich, 5 Misc.2d 202, 165 N.Y.S.2d 290 (Supreme Ct., 1957).

Concerning illegitimate children, the courts have disagreed, as they have in disputes concerning legitimate children, over whether the best interests of the illegitimate child are served by granting custody to a natural parent rather than a third party unless the parent is shown to be unfit or whether the welfare of the child, irrespective of any showing of unfitness, should be the central matter for concern. In re Weldon, 397 Mich. 225, 244 N.W.2d 827 (1976); Note Alternatives to "Parental Right" in Child Custody Disputes Involving Third Parties, 73 Yale L.J. 151 (1963).


The precise issue before us is termination of parental rights. We must look to the Michigan Adoption Code, Supra, for guidance in the resolution of this matter.

In enacting the Adoption Code, the Legislature sought, Inter alia, to establish procedures to provide for speedy resolution of disputes concerning a [404 Mich. 229] putative father's rights where placement of an illegitimate child for adoption is sought. 8 A putative father's parental rights are subject to termination only after the father is afforded notice and an opportunity to be heard. M.C.L.A. § 710.36; M.S.A. § 27.3178(555.36).

The Adoption Code also provides substantive standards for deciding when a putative father's rights may appropriately

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be terminated. Section 39 of the code creates two categories of putative fathers and provides different standards for termination of the rights of each. Putative fathers who have established no custodial relationship with the child, and who have provided no support for the mother or child prior to the notice of hearing, may have their parental rights terminated if the...

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