Roque v. Frederick

Decision Date04 May 1981
Docket NumberNo. 80-130,80-130
Citation614 S.W.2d 667,272 Ark. 392
PartiesAndrew A. ROQUE, Appellant, v. Deborah Ann FREDERICK, Appellee.
CourtArkansas Supreme Court

Jones & Reynolds by Ray A. Reynolds, Fayetteville, for appellant.

Esther M. White and Putman, Gallman & Dickson by W. B. Putman, Fayetteville, for appellee.

HICKMAN, Justice.

This is a case concerning an illegitimate child and the legal rights that surround such a child. The specific question before us is whether the putative father of an illegitimate child has the right to a hearing in county court on his petition to have reasonable visitation rights with that child. We hold that he does have the right to such a hearing. Our decision is rendered in this case without regard to the effect of Acts 664 and 665 of 1981 which will, no doubt, be a determinative factor in any cases arising after their effective dates. 1

There is no dispute over actual paternity in this case since the parties agree that the appellant Andrew A. Roque, is the father of the child. Roque and the mother Deborah Ann Frederick, lived together intermittently in California before and after the child was born in 1977. They were never married. After the child was about five months old the parents separated and have remained so since. After separation Roque began paying support to Frederick for the child. First he paid $150.00 a month for about seven months; then $200.00 a month for about eight months. During this time Roque regularly visited the child. There has never been a legal determination of paternity.

Frederick moved to Arkansas with the child and they have remained here. Roque, a California resident and a practicing physician, filed a petition in the County Court of Washington County seeking a legal declaration that he is the father of the child and asking for reasonable visitation privileges. He offered to pay support for the child. Frederick resisted Roque's right to file such a petition or have visitation privileges. When Frederick admitted in a deposition that Roque was the father and had supported the child, Roque filed a motion for summary judgment. Frederick countered with a motion to dismiss Roque's petition, claiming that Roque lacked standing. The county court ruled that Roque's petition must be dismissed because Arkansas law does not permit a father to file such a petition, that right being granted only to a mother. On appeal to the circuit court the case was considered de novo and the same conclusion was reached.

Roque's argument on appeal to us is based on the Equal Protection and Due Process Clauses of the United States Constitution. He argues that the Arkansas statutes granting mothers the right to file a petition against a man to have him declared the father but not granting a father the right to file a suit establishing his own paternity violates the Equal Protection Clause. The argument is based on cases which have struck down other unjustifiable gender-based statutes. See Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979); Hatcher v. Hatcher, Ark., 580 S.W.2d 475 (1979). Roque also argues that if Arkansas law prohibits him from even a hearing on the question of paternity and visitation, it violates the Due Process Clause of the United States Constitution.

Frederick's argument is based on the common law and the Arkansas statutes. She sites two principles as controlling: the mother, not the putative father, of an illegitimate child is bound to maintain it, Davis v. Herrington, 53 Ark. 5, 13 S.W. 215 (1890); there is no common law duty for the father of an illegitimate child to support it and since there is no duty there are no common law rights in the father. Ehorn v. Podraza, 51 Ill.App.3d 816, 9 Ill.Dec. 866, 367 N.W.2d 300 (1977). Frederick also relies on the specific language in Ark. Stat.Ann. § 34-702 (Repl.1962). This statute beings: "On complaint made to the county court by any woman resident of the county..." (Emphasis added). That statute and others provide that the county court can determine paternity and require a father to support the child. Ark.Stat.Ann. § 34-706 (Repl.1962). The only reference in the statutes to visitation is made in Act 621 of 1979. It provides that when paternity is determined and the father is ordered to make periodic support payments the county court may grant reasonable visitation rights to the father. Frederick argues that Roque has no right to file a petition to determine paternity and therefore no right of visitation exists.

Nowhere in these statutes, or any others relating to bastardy proceedings, is there any mention of the right of a man to file a petition in county court to have paternity declared in his favor. There is no mention of any right of a father to visit his child except as provided for in Ark. Stat.Ann. § 34-715 (Repl.1962). (See Footnote 1.)

The law concerning illegitimate children and the rights of the natural parents of such children has changed in recent years. For centuries the laws have been harsh. For example, in the Old Testament there is a law that for ten generations "No bastard shall enter the Assembly of the Lord." Deuteronomy 23:2. The law has been harsh for perhaps two reasons: to punish those who go against society and to foster the state of marriage. Even so the result has been that the child usually bears the brunt of social and legal discrimination, not the parents who committed the moral and legal wrong.

The law has changed because it must. Whatever wrongs the parents did are no fault of the child, and whatever wrong the parents did should not forever deny them the privileges that other parents enjoy. People should be allowed to acknowledge their mistakes and try to rectify them. So the law has changed from discrimination against illegitimate children and unwed parents to a more tolerant view.

Within the last few years the United States Supreme Court has struck down state laws which prohibit an illegitimate child from inheriting property from his father, while permitting inheritance from the mother. Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971); Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). Arkansas had a similar law and we followed the Trimble decision in declaring the Arkansas law unconstitutional in Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979); Frakes v. Hunt, 266 Ark. 13, 583 S.W.2d 497; and Lewis v. Petty, 272 Ark. 250, 613 S.W.2d 585 (1981).

Fathers of illegitimate children do have certain rights. In Lipsey v. Battle, 80 Ark. 287, 97 S.W. 49 (1906), we found that the father of an illegitimate child had rights superior to that of a stranger in custody disputes over the child. In Lee v. Grubbs, 269 Ark. 205, 599 S.W.2d 715 (1980), we upheld a probate court order that granted care and control over a child to the putative father. The mother resisted the claim.

Other states have recognized certain basic rights in fathers of illegitimate children, either as a matter of equal protection or due process of law. State v. Edwards, 574 S.W.2d 405 (Mo.1978). The Missouri Supreme Court found that a Missouri law which denied putative fathers any opportunity for a hearing on their rights in a custody case violated the due process and equal protection guarantees of the Fourteenth Amendment to the United States Constitution. In the case of In Re R., 13 Cal.3d 636, 119 Cal.Rptr. 475, 532 P.2d 123 (1975), cert. denied 421 U.S. 1014, 95 S.Ct. 2421, 44 L.Ed.2d 682 (1975), the Supreme Court of California recognized that the interest of an unwed father in his children "is not only cognizable but also of such sufficient substance to warrant deference except when the deprivation comports with equal protection and due process requirements." The California Court struck down a statutory presumption which denied an unwed father the right to offer evidence that he was the father of the child and, therefore, entitled to consideration regarding custody.

In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the United States Supreme Court examined an Illinois law which effectively prohibited a putative father from consideration in a custody hearing regarding a child. The Court recognized that such a father had "cognizable and substantial" interests in the "companionship, care, custody, and management of his children." In recognizing those rights the Court dealt at length with the state's special interest in promoting marriage and in assuring the preservation of the family. The Stanley Court said:

The court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed "essential," Meyer v. Nebraska, 262 U.S. 390 (43 S.Ct. 625, 67 L.Ed. 1042) (1923), "basic civil rights of man," Skinner v. Oklahoma, 316 U.S. 535, 541 (62 S.Ct. 1110, 1113, 86 L.Ed. 1655) (1942), and "(r)ights far more precious ... then property rights," May v. Anderson, 345 U.S. 528, 533 (73 S.Ct. 840, 843, 97 L.Ed. 1221) (1943). "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." Prince v. Massachusetts, 321 U.S. 158, 166 (64 S.Ct. 438, 442, 88 L.Ed. 645) (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment ... (citation), the Equal Protection Clause of the Fourteenth Amendment, ... (citation), and the Ninth Amendment, ... (citation).

Nor has the law refused to recognize those family relationships unlegitimized by a marriage ceremony. The Court had declared unconstitutional a state statute denying natural, but...

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6 cases
  • Escobedo v. Nickita
    • United States
    • Arkansas Supreme Court
    • March 9, 2006
    ...father of an illegitimate child has "rights superior to that of a stranger in custody disputes over the child" Roque v. Frederick, 272 Ark. 392, 396, 614 S.W.2d 667, 669 (1981) (citing Lipsey v. Battle, 80 Ark. 287, 97 S.W. 49 (1906)). Consistently in Lee v. Grubbs, 269 Ark. 205, 599 S.W.2d......
  • X.T. v. M.M.
    • United States
    • Arkansas Court of Appeals
    • September 1, 2010
    ...was filed. We find no error. In common law, the putative father of an illegitimate child had no parental rights. See Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981). This rule was relaxed during the course of the twentieth century; in Lipsey v. Battle, 80 Ark. 287, 97 S.W. 49 (1906)......
  • Scoggins v. Medlock
    • United States
    • Arkansas Supreme Court
    • May 5, 2011
    ...was not established before death. A putative father may not be a beneficiary under the wrongful-death statute. In Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981), this court recognized that putative fathers enjoy some due-process and equal-protection rights, but there is no consider......
  • Jones v. Jones
    • United States
    • Arkansas Court of Appeals
    • December 11, 2019
    ...best interest of the child. In child-custody cases, the best interest of the children are of paramount importance. Roque v. Frederick , 272 Ark. 392, 614 S.W.2d 667 (1981). We have long held that the primary consideration in child-custody cases is the welfare and best interest of the child ......
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