Quilloin v. Walcott – Oral Argument – November 09, 1977

Media for Quilloin v. Walcott

Audio Transcription for Opinion Announcement – January 10, 1978 in Quilloin v. Walcott

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Warren E. Burger:

We will hear arguments next 76-6372 Quilloin against Walcott.

Mr. Skinner I think you may proceed whenever you are ready.

William L. Skinner:

Mr. Chief Justice and may it please the Court.

This case involves the statutory scheme of the adoption laws of the State of Georgia.

The statutory scheme of adoption laws of the State of Georgia, that presently exist, and of course it should be noted that this is going to change, effective January 01, 1978 provide that, an adoption may be had of a man or child with only the consent of the mother where the child is illegitimate.

This is contrary to the first paragraph of statute concerning consent, which says that an adoption can only be had with the consent of all living parents.

Warren E. Burger:

You are referring now to the new statute?

William L. Skinner:

I am referring to the old statute which has a —

Warren E. Burger:

So tell us so that we have it thoroughly entirely before us, unless what the old statute is again and that what the new statute is?

William L. Skinner:

The old statute does start off with a provision that no adoption can be had of man or children without the concern of living parents, it goes on then to state exceptions.

One of the exceptions is, the challenged statute here which is that the consent of a mother alone will suffice if the child is illegitimate.

This of course has been interpreted by the Georgia Supreme Court in Smith v. Smith to mean that the father must petition to legitimate the child, prior to the filing of any adoption action or he loses the right to legitimate the child, that was applied in this case.

It was clearly applied because in this case Mr. Quilloin had not filed a petition to legitimate the child prior to the filing of the adoption.

Warren E. Burger:

But he did file one afterwards did he not?

William L. Skinner:

Yes, sir.

He filed it as what I would consider defensive measures to the adoption proceedings.

Warren E. Burger:

Did not the Fulton County Superior Court Judge find that it was in the best interest of the minor child to grant the legitimation after the long lapse of time?

William L. Skinner:

I do not think that that was a specific holding of the trial court.

Warren E. Burger:

Is that not one of his findings in the appendix?

William L. Skinner:

That is, but I think that that was based upon the conclusions of law that Mr. Quilloin had no standing based upon the challenged statutes which only give standings to object to adoption to the legal father, that is the father who has married the mother or has legitimated the child prior to the filing of the adoption action.

I would like to point out in that regard that in this case, the Appellees married each other in 1967, Darrell then that come to live with the Appellees until 1969.

The adoption action was not filed until 1976, I see no real distinction in saying that the legitimation action is late when the adoption action is not.

The adoption action in my opinion was filed purely and simply to eliminate Mr. Quilloin’s rights under the adoption statute of the State of Georgia because I believe that the record is quite clear that apparently Ms. Walcott had contacted counsel and had been advised at that point in time that Mr. Quilloin had no rights.

Warren E. Burger:

But for 11 years, he could have legitimated?

William L. Skinner:

I think, I addressed that issue in my brief as mush as I could.

That is true the Georgia statute is concerning birth certificates provide that the father of illegitimate child should not appear on the birth certificate nor or shall, the child had his name, unless he consents to this.

It is apparent from the record that Darrell Webster Quilloin has always been Darrell Webster Quilloin and not Darrell Webster Williams which is the maiden name of Ms. Walcott, so he had in fact signed the birth certificate.

Where was Darrel for that interval between the marriage of the Walcotts and the time he entered their home?

William L. Skinner:

I think that he was — that it is somewhat disputed in the record as Justice Blackmun would note.

He was with the maternal grandparents part of time, the paternal grand parents part of the time and with the appellate Mr. Quilloin part of the time.

He was not under state custody, was he?

William L. Skinner:

No, sir.

And let me point this out too in that regard Darrell has never been a deprived child.

This is not a case involving what the some people would stereotype type an illegitimate child. Darrell has been loved and cared for by maternal and paternal grand parents, by the mother, by the father and even though it may be somewhat contrary to our position, apparently, the step-father cares for Darrell, but the step-father did not file a petition to adopt Darrell until he had been married to the mother for nine years.

He could have filed immediately.

Mr. Skinner on this question of timing, is it not correct that before the trial judge entered his order allowing the adoption and denying the petition to legitimate that he would, if he had concluded that there would have been in the best interest of the child to go with the natural father.

He could then have legitimated the child?

William L. Skinner:

Under Smith v. Smith, I think that he could not fail to deny the legitimation because it was filed prior to the adoption.

You think that is a matter of law?

William L. Skinner:

It is applied to state law yes.

As a matter — well, then why did he not deny at the outset of the proceeding I wonder?

William L. Skinner:

I do not know.

Other than the fact that he interpreted Stanley to mean that he had to give Mr. Quilloin a hearing, of course, at the conclusion of the hearing, he held that he had no standing which to me was quite puzzling.

What would have been the consequences of legitimation?

I thought it does do more than in title 1 to inherit?

William L. Skinner:

That is true and it changes the name.

well, then does it do more or not?

William L. Skinner:

No.

So it does not entitle a person to veto an adoption?

William L. Skinner:

I think that it could be interpreted as that way.

I do not think there is specific reason to it.

That is not what the statute says, is it?

William L. Skinner:

No, the statute only provides that in the event that the child is legitimated under that statute, he can inherit from the father not bring to father.

Has there ever been a holding in a Kentucky Courts that legitimation entitles the natural father to veto an adoption?

William L. Skinner:

No, none that I know of.

I mean whatever Court where we are talking about?

William L. Skinner:

Georgia, Georgia Supreme.

Georgia Supreme.

William L. Skinner:

yes.

No, I know of no case where that has been held.

William L. Skinner:

It has factually been held against me where I present —

That was not an issue in this case that why was a trial judge asked to legitimate, if it did not bear on the adoption?

William L. Skinner:

Because I was using that as in my opinion a defensive tactic also to course the new adoption statutes which is effective January 01, provides that this must be filed, that you must file a legitimation to protect yourself.

Mr. Skinner, as a practical proposition, this is mid-November almost, January 01, as it is down the line, we look at it — supposed this Court does not get around deciding this case before January 01 which would probably not then what law attains on this case?

William L. Skinner:

Your Honor, at page 24 of the appellee’s brief I think the appellee admits that this would amount to the right of a grant in substance, I grant to Mr. Quilloin, the right to be taken it out.

The new adoption statute gives it like, so —

And he complains bitterly about it?

William L. Skinner:

Sir, —

And he complains bitterly about it?

William L. Skinner:

Yes, because of the time sequence, yes and of course I tried to point out in my brief that the State of Georgia was in the process of passing the new adoption statute, while this case was in actual litigation, actual trial and I feel that is clearly now or will be on January 01, 1978.

The public policy of the State of Georgia to give fathers of a illegitimate children, the right to legitimate the children after the filing of the adoption and therefore have standing to object to the adoption.

What would be necessarily followed from that they would give custody?

William L. Skinner:

No.

It means that he might have visitation?

William L. Skinner:

Right, and of course that is all that we are requesting in this case.

We are not requesting custody.

The —

Well, it really sounds as though, you are requesting, a father being divorced request?

William L. Skinner:

Very much so.

We consider Mr. Quilloin or I consider him as a defective divorced father.

He was never married to the biological mother of course, but he has acted as if he had been married to her and divorced.

He is seeing the child as at the child visit with him.

He has paid money for the child.

He has directly indirectly, he has provided gifts for the child.

He has done everything as far as a nurturing instinct is concerned that a normal divorced father would, and I feel like that he should probably be treated like that.

I do not think, any court would say that merely because a divorce has been granted,the father of the child should be eliminated from the picture, unless he is unfit and that could be done —

Warren E. Burger:

Well, under Georgia law, he would not be, would he?

William L. Skinner:

No, sir.

Warren E. Burger:

No.

William L. Skinner:

No, sir.

Warren E. Burger:

Calling him a defective divorced man does not really change the legal issues in this case?

Are you taking the position that he has supported Darrell all through these years?

William L. Skinner:

Yes.

Fully?

William L. Skinner:

Not fully.

In the sense that part of the support came from the mother, part of the support came from the maternal and paternal grand parents.

But he has certainly scanned in a testimony, there get a different attitude from the different people about what actually happened?

William L. Skinner:

That is true.

I realized he bought a 10 speed bike but I wonder what else he did?

William L. Skinner:

Well, I think he testified that he had sent the child —

What is testified what are the facts?

William L. Skinner:

I think that is the fact as to what he said.

Warren E. Burger:

The Superior Court’s finding number 3 on page 71 of the appendix is that the father has provided support for the child irregularly in the form of medical attention, food, clothing, gifts and toys from time to time.

It seems to me you are putting a little bit of a favorable gloss on that finding in your answer which I suppose that the attorney is entitled?

William L. Skinner:

Let me try to support that with the law if I may , in Georgia there is a presumption that a parent is fit and that there is in fact a presumption that parent has not abandoned the child and therefore the party that has to burden of proof must proceed and I feel that if there was enough evidence to constitute abandonment, we would not be here today that the trial court could simply help that he had abandoned the child, all that he was unfit and the trial court would not then have had to reach the constitutional issue.

What about total lack of support?

Suppose, he has visited the child and never purported to support the child at all, had been asked to and either said he would not or he could not?

William L. Skinner:

Then I think that he would be in a position to have his rights severed by adoption or by a juvenile court proceeding to terminate his rights.

So you do not —

William L. Skinner:

But that is not the case here.

You do not contest that?

William L. Skinner:

No, sir.

I think the total act support with the matter of abandonment.

Suppose it is perfectly clear that he cannot support the child totally.

That he can say give $20 a month?

William L. Skinner:

Yes.

But that that is not any wise near sufficient.

William L. Skinner:

He would not be deprived of the custody then because he would be doing the best he could and I think that the no court would ever requires somebody to do more than they would be able to do.

In that situation —

But a child is still very needy and the step-father wants to adopt him and provide for it?

William L. Skinner:

Well, the fact is of course in this case, is step-father and the biological mother, is providing for Darrell in some degree.

Well, can Darrell inherit from the step-father?

William L. Skinner:

No, sir.

Unless he is adopted.

William L. Skinner:

No, sir.

There is a way of course, Justice White.

Of course the step-father can make a Will leaving his entire estate if he so desires and of course —

If that person give the child that potentiality does not give the child any right in terms of Justice White was addressing, does it?

William L. Skinner:

No, sir.

It would not.

Warren E. Burger:

Anyone can make a Will leaving money to the child.

William L. Skinner:

That is true, so could Mr. Quilloin, but in this case of course under Trimble v. Gordon, it matters not to Darrell.

In this particular situation now.

The way you make claim, is it dependent on the tax return?

William L. Skinner:

I think the person that provides 50% to support could.

Either of them, it he had reached to provide 50% to both of them?

William L. Skinner:

Of course that would be a split proposition.

I do not how IRS would rule on that, but if one provided 51%, if Mr. Quilloin provided 51% of Darrell’s support he could claim not, yes.

Thurgood Marshall:

It is clear he does not give 51%?

William L. Skinner:

No, sir.

The record is of course somewhat ambiguous about the manner of support that was involved.

Warren E. Burger:

No, I do not think the finding is very ambiguous.

The finding of following the one that Mr. Justice Rehnquist read to you is the principle or primary source of support on a regular basis has been the mother or maternal grand parents, nothing ambiguous about that, is there?

William L. Skinner:

Well, that was the finding of the trial court.

Yeah, will we not accept that here?

William L. Skinner:

To some extent, I think you can, but I think that the record should be looked at as a whole.

There was no finding of abandonment as I was pointing out, of course Georgia has held that the failure of one parent to support a child where support is neither requested or needed is not an abandonment, so there was no abandonment on Mr. Quilloin, that is pretty clear rule, a rule involved of law in Georgia that came out of a case involving the custody of an illegitimate child where the mother had lost custody.

Thurgood Marshall:

And Mr. Skinner is there any finding of non abandonment?

William L. Skinner:

No, but I contend that that is not necessary.

Thurgood Marshall:

Well, the finding is that he did not give the child support.

William L. Skinner:

No.

Thurgood Marshall:

Except irregularly.

William L. Skinner:

Right irregularly so.

Thurgood Marshall:

And he was said we are bound by that finding?

William L. Skinner:

I would say that this does not —

Thurgood Marshall:

Then give me a case that says will not?

William L. Skinner:

I have not briefed that issue other than I can now quote —

Well, there is a finding that the child has never been in an abandoned or deprived conditions —

William L. Skinner:

Right.

With or without the –?

William L. Skinner:

Right.

I think it is Patterfield versus Mont (ph) it is a Georgia Supreme Court case that held that for parent to lose his right to custody of a child that child must be abandoned.

I said, what case do you have that says we are not bound by the findings of the fact of the Georgia Court?

William L. Skinner:

I think that you are bound by the findings of fact to some extent yes.

Mr. Skinner, while you are interrupted, you mentioned earlier that as the matter of Georgia law the filing of the petition to legitimate came too late because it came after the adoption petition had been filed.

Could you tell me where are you covered that in your brief for the Georgia cases that so hold that?

William L. Skinner:

It is Smith v. Smith.

Smith v. Smith?

William L. Skinner:

Which is 224 Georgia 442.

Thank you.

Citation to that?

William L. Skinner:

Yes sir.

162 South Eastern, second 379, thank you.

Mr. Skinner, do you agree with appellee’s brief that if you prevail in this case, your client will have almost an absolute veto right of an adoption of a child by anyway?

William L. Skinner:

Yes, I do.

Our client and he does have that right.

Your client does not wish to assume custody of a child himself?

William L. Skinner:

To do that, he would have to take as it above.

Has he assumed that right yet?

William L. Skinner:

Sir —

Has he claimed custody himself up to this point?

William L. Skinner:

Only in the form of visitation rights.

Right, that is not custody?

William L. Skinner:

In Georgia it is as a part of custody that is a status by writ of habeas corpus says if a change of custody.

I understand your client was a nightclub operator and a single man, is that correct?

William L. Skinner:

That is true.

Do you think any court would give him custody?

William L. Skinner:

If the mother was found unfit, but we do not contend that the mother was unfit.

Right, but when he was visiting his biological father, he stayed in a nightclub, did he not?

William L. Skinner:

On occasions yes.

Where did he stay on other occasions?

William L. Skinner:

With the paternal grand parents, Ms Dalson(ph).

But then he was not visiting his biological father?

William L. Skinner:

No, but I think that that directly showed the parties Mr. Quilloin and his mother were living together at that time.

Right, what I am really driving at is, what if you got to again really so far as a child is concerned, by prevailing in this case?

What is your ultimate objective?

William L. Skinner:

My ultimate objective is for him to have some visitation rights with the child which he had up until very recently before this —

That he has no visitation rights now?

William L. Skinner:

Sir —

But he has no visitation rights now?

William L. Skinner:

Absolutely not.

Absolutely not because he has not seen the child of course since filing of this adoption action, and the records are quite clear that the purpose of filing of this adoption action was not the purpose stated, purpose of filing of this adoption action was to get rid of Mr. Quilloin out of the life of this family, of course, they did not file this adoption because Mr. Quilloin had abandoned the child.

They file this adoption because they were concerned of the overbalance of things that was being received by Darrell from Mr. Quilloin as opposed to their seven year old biological child of the Appellees.

Warren E. Burger:

Now, when you characterize the adoption as being for the purpose you have just mentioned, is it not reasonable to say that the purpose of the adoption was to give by the foster father to give the child something the biological father never gave him namely – a home, right to inherit.

He has none of those things from his biological father, does he?

William L. Skinner:

He was not requested or needed at that point in time.

As far as the home was concerned, as far as, right in here that this Court held in Trimble v. Gordon that he had that anyway there was no question of paternity of the man or child, the question in this case.

Thurgood Marshall:

Mr. Skinner you said he did not abandonment of child?

William L. Skinner:

I do not think he did.

Thurgood Marshall:

How can he abandon some he never had?

Thurgood Marshall:

He never had custody, did he?

William L. Skinner:

No, he has never had custody.

Thurgood Marshall:

Then how could he abandon something he never had?

William L. Skinner:

well, I contend Your Honor, quite may be to the contrary my own self that yes, he could abandon the child because a divorced father, in my opinion could abandon a child.

And I think that he should be treated as divorced father, I think he is father.

Do you contend that if he had been married and divorced and had treated the child exactly as he treated this child as a divorced father, do you think your court would have come out differently?

William L. Skinner:

We would not be here now.

I think that —

Well, I know that you would not agree, but I want to know what the Georgia courts have treated him differently, the divorced father?

William L. Skinner:

Oh, yes.

Why?

William L. Skinner:

I think he would have the standing to object to the adoption.

Well, I know, but the standing — but would not the Georgia Court have said, well you have not paid a whole lot of attention to your child, you have given only him partial support and we say that you do not have the right to object to the adoption?

William L. Skinner:

I think they would have to make a finding of total abandonment that he just left the child without necessities.

Well, that is what I want to do?

What would be the standard if your client had been a divorced father in attempting to object to an adoption by the husband of his ex-wife?

Warren E. Burger:

You can ponder on that answer now until 1 o’clock counsel?

As in Subsection 2.

Warren E. Burger:

Counsel you may resume your argument you have nine minutes remaining.

William L. Skinner:

Mr. Chief Justice and may it please the Court.

I would like to begin by trying to answer Justice White’s question which I understood to be, what would be the result if —

Can you give me some constructive basis to that argument?

William L. Skinner:

No, sir.

I am not trying to give you Georgia case.

What would be the result if Mr. Quilloin had married the mother and then divorced?

Was that I think that I understood Your Honor’s question to be that.

He would have an absolute right to veto the adoption had that been the case because the Georgia adoption statute as exists now, provides that the failure of a divorced father to support by period of 12 months, if he was ordered to do so by a Superior Court order would do away with the necessity of his consent.

There is not showing of that in this case.

Warren E. Burger:

But the major interest that he has shown in this child the major interest not the only interest is to blacklist adoption?

William L. Skinner:

I think not.

William L. Skinner:

I think that he took the child to the doctor, to the hospital, paid the bill, sent the child to kindergarten.

I think that he has shown various substantial interests.

Never trying to make the child his heir as he could by legitimatizing it?

William L. Skinner:

Yeah, of course under Trimble v. Gordon, is it not necessary.

He had recognized the child as his.

I am talking about his attitude.

I am not sure he knew about these cases?

William L. Skinner:

I am sure that he did.

He certainly did know about Trimble v. Gordon before last spring, did he not?

William L. Skinner:

I am sure he did.

Suppose a father simply leaves home, there is no divorce.

He does not support the child very much, sees him time to time, no divorce, no court order and then the child is put up for adoption by the mother.

The mother wants to relinquish her rights over the child and somebody else wants to adopt, it has a parent then, the father got an absolute veto?

William L. Skinner:

Well, the mother had failed to provide the necessities for the child, yes.

Well, the mother has been taking care of child, but she is just willing to relinquish to the state?

William L. Skinner:

I think that they could show an abandonment in fact that yes.

That the father would have lost his rights under those facts, but that is a “total payment failure to pay support” cannot be an abandonment, but let me point out a particular case in Georgia which I did not point out in my brief and that is Patterford versus Mont (ph) 230 Georgia at 692 and particularly at 694 which held.

This Court has many times held under facts similar to those in the instant case that the mere failure of a parent to provide support for a man or child when in the possession or custody of the other parent.

A grant parent or other person when no support is requested or needed is not such a failure to reward necessaries or such an abandonment as will amount to a relinquishment of the right to parental custody and control and I think that perhaps this would answer Justice Marshall’s concerning abandonment of two in this issue.

I still do not understand that this man has a child 15 years, he did not legitimate the child.

He came to set for abandonment?

William L. Skinner:

I think not under this ruling, but that is not the case in this case.

This man had.

But what would that be?

Disown him?

William L. Skinner:

Under Georgia law it would not be an abandonment considered in Patterford versus Mont (ph).

Thurgood Marshall:

The parent of the child who gives nothing for a period years and long period of years can suddenly appear and take over the child, is that the Georgia law?

William L. Skinner:

I do not think that the enforcement of the law would be there.

No, I think that having not shown an interest it would be discretionary in the trial court.

Thurgood Marshall:

But only thing this man has done is what the Court found, that regularly he bought toys and paid for medical, not one word in there, about food, not one word about shelter and that gives him some kind of rights of what?

William L. Skinner:

He sent the child to kindergarten when he was five years old actually took him himself.

Thurgood Marshall:

Had he kept the child?

William L. Skinner:

Kept the child himself and paid —

Thurgood Marshall:

Everyday —

William L. Skinner:

There is a question about whether it was him or someone in his employ.

Thurgood Marshall:

Yeah, he may –?

William L. Skinner:

But let me point this out too.

Under the present Georgia adoption scheme, it would not have mattered whether he had given the child a million dollars a day, if he had not legitimated the child he would have no stands.

Thurgood Marshall:

All he wants to do it, to decide who will pay the money?

William L. Skinner:

He is willing to pay.

Thurgood Marshall:

He does not pay the money, but he wanted to see to decide who will pay?

William L. Skinner:

To the contrary the record is quite clear that —

Thurgood Marshall:

And he wants a veto who, the guardian shall be?

William L. Skinner:

Yes, he wants to veto.

Thurgood Marshall:

And would not the guardian be the one to pay the money?

William L. Skinner:

He would be one of the ones, and mother would had a responsibility.

Thurgood Marshall:

So he wants the right, he does not pay the money, so he wants the right to decide who will pay the money?

William L. Skinner:

No, Your Honor.

The record is clear.

He told the Court I am ready, but am unable to pay the money I will pay the money, all he got to do is tell me how much to pay?

Where to pay?

And when to pay?

Now, well, of course he has voluntarily done things.

Of course that is not really the issue in this case anyway because no support was ever requested and there was no finding of abandonment in this case.

Thurgood Marshall:

Does not a father have to be requested to pay for his children?

William L. Skinner:

He never was requested in this case, but —

Thurgood Marshall:

Yeah, but does he not normally have a feeling that he wants to support his own child?

William L. Skinner:

Yes, yes.

I think Mr. Quilloin has that feeling.

Thurgood Marshall:

Yeah.

William L. Skinner:

And he has expressed —

Thurgood Marshall:

And how much efforts did he put in.

William L. Skinner:

I think it is substantially considering all the fathers.

Thurgood Marshall:

How much?

William L. Skinner:

The record is not clear on that.

Thurgood Marshall:

That is really with that?

I thought so.

William L. Skinner:

Sir.

Thurgood Marshall:

Finding of a court is that he irregularly did look?

William L. Skinner:

But the court did not find abandonment.

We are concerned here, are we not counsel only with the constitutional validity of Georgia Court annotated Section 74-403 (3)?

William L. Skinner:

That is true.

Is that correct?

William L. Skinner:

That is true and —

So that these concerns are irrelevant to that statutory provision?

William L. Skinner:

I think that they are.

Well, counsel let me ask you a question where we are concerned with that statute if at least as I would state and as it was applied by the Georgia courts in this case, we cannot take cognizance of some peculiarity in the statute that did not affect the outcome of this case that we might find objection on some other circumstances?

William L. Skinner:

But it was applied in this case.

Okay that is all I want to make sure.

William L. Skinner:

It was applied in this case.

I would like to reserve whatever time I may have for rebuttal.

Warren E. Burger:

Mr. Jones.

Thomas F. Jones:

Mr. Chief Justice and may it please the Court.

Appellant is here because he contends that the adoption of his child without his consent, violates his due process rights.

We contend that this position is untenable in view of the existence of Georgia Code Section 74-103, which provides that the father of an illegitimate child can legitimate that child at any time.

Once this child is legitimated he is legitimate for all purposes including inheritance, including the objection to adoption and perhaps most important —

Now you and your colleague then do to differ on the consequences of legitimation, you think that if a child is legitimated the father who does the legitimating has a right to veto an adoption?

Thomas F. Jones:

Yes, this is our position Your Honor.

Since appellant did not take this step and did not legitimate the child he should not be heard to argue that he has been denied due process.

He had an opportunity for this due process for 11 years and did not choose to do it.

Thomas F. Jones:

As I stated previously when the child is illegitimate the father’s consent is not required and Georgia Code Section 74-403 states that if the child is illegitimate, only the mother’s consent is necessary.

Appellant has also contended that there is an equal protection violation here, because he says as Georgia law burdens all (Inaudible) fathers.

Our position is that this is not the case.

There are two classes involved here – fathers of legitimate children and fathers of illegitimate children.

Appellant is in the second class because of his own choice.

He could have investigated the situation, gotten an attorney and found out exactly what his rights were and what he needed to do to protect them.

Now, there is a distinction made between these two classes, but we would submit that this distinction is made based only a valid state interest, that state interest is Georgia’s interest in the welfare of its children and Georgia’s interest in the protection, and stability of the family unit.

In that connection Your Honor, I would like to request that the Court considered the effect of a decision in appellant’s favor and how it would effect adoptions all over the country.

If fathers of illegitimate children, if their consent was required many adoptions which should take place, would not take place.

There would be problems of locating the father, there would be problems of the father just not consenting and there would also be the potential problem of profit seeking in order to obtain an adoption.

We submit that the most important factor here is the best interest of a child.

Warren E. Burger:

Is it relevant at all to purposes of the statute, assuming purposes then become important.

That it is relatively easy to identify the mother of any illegitimate child not always easy to identify the father?

Thomas F. Jones:

I believe that this is —

Warren E. Burger:

That does not underly the legitimacy statutes?

Thomas F. Jones:

I agree totally Mr. Chief Justice and this relates to the problems I was speaking of a little bit ago, if states had the burden of number 1 – determining who these fathers are and then locating them so that their consent could be obtained before any adoption of an illegitimate child could take place.

Many deserving children will not get the home environment that they deserve.

Thurgood Marshall:

But that is not true in this case?

Thomas F. Jones:

No, that is not true in this case.

In this case, the Georgia has a policy which I believe reflect this Court’s decision in Stanley v. Illinois.

The Georgia Department of Family and Children Services makes every effort to locate fathers of illegitimate children in these circumstances.

Thurgood Marshall:

In this case I thought he admitted it?

Thomas F. Jones:

He did admit it.

Thurgood Marshall:

On the record, so it is not in this case at all?

Thomas F. Jones:

No, no it is not in this case.

The Georgia Family and Children Service Department that you have just preferred brought in most or all of the adoption cases in Georgia?

Thomas F. Jones:

Yes, they are Your Honor.

A report is submitted from this department to the superior court judge on all petitions for adoptions in Georgia.

This report contains the department’s recommendations concerning the best interest of the child.

As I have stated previously, the courts of Georgia and the legislature of Georgia have stated that this adoption is in the best interest of the child, the father has not provided any significant support for this child for 12 years.

Are you defending a rule, a automatic rule that a father of an illegitimate child is automatically not given standing to object to an adoption simply because he has not legitimated the child?

Thomas F. Jones:

Well, I would answer in this way Your Honor.

That may be somewhere of a father who deserves consideration.

Well, suppose that there are no finding in this case and no basis for a finding that he had failed to support at all, that he had regularly seen the children and he had regularly supported them fully and completely.

The only thing the mother remarried and that they wanted an adoption?

Thomas F. Jones:

Your Honor I would think the only father who is deserving of consideration is one who has done all he can to legitimate or to acknowledge that child.

So you say yes, you do defend the automatic rule even though he has completely supported the child?

Thomas F. Jones:

I would say this Your Honor, I believe that the interests of the child are more important and in effect to a situation such as this.

I would defend that broader part.

And that is what the Court held in it?

Thomas F. Jones:

Yes, it is.

I would also like to refer the Court to page 67 of the appendix in this case which —

Mr. Jones in that connection that is with your last answer, is that reconcilable with your statement in the brief as I read it that if this case gets caught under the name of statutes, it is lost?

Thomas F. Jones:

Your Honor, that is or that may be I should say that was my initial reading of that statute.

In that connection I would like to refer the Court to page 23 of appellees’ brief in which the relevant enforcement of a new section is stated.

This is the new section 74-405 which will become effective on January 01, of the next year.

This section states that the surrender or termination of parental rights by consent or otherwise, shall not be required as a pre-requisite in the case of a parent who has failed significantly without justifiable cause for a period of one year or longer, immediately prior to the filing of the petition for adoption number 1 – to communicate or to make a bona fide attempt to communicate with the child and number 2 – to provide for the care and support of the child as it required by a law or judicial decree.

It is uncontested in this case that appellant has never supported the child.

He is required to do so by section 74-202 of Georgia Code, which requires that the father of an illegitimate child is required to support that child therefore I see a potential question of fact here, and Georgia Court might have to decide where he has failed significantly without a justifiable cause.

These words of qualifications as I say may raise a question of fact, but I would still hold to my initial impression that there is a very good chance that this adoption will not take place if it is decided under the new law, which becomes effective January 01.

That will not take place you feel?

Thomas F. Jones:

This is my initial impression as I say a question of fact may arise under the section I just stated.

Well, the question of fact was that you say that he has not failed that you say there is a finding that he has failed to support the child?

Thomas F. Jones:

But that was a qualification Your Honor, whether he has significantly and without justiciable cause.

The courts of Georgia might take the position although I think it would be untenable they might take the position that where someone else was carrying for the child that was not necessary for them to support.

What would be the place of legitimation under the new statute itself just because it legitimated the child would not automatically give him a right to object to the adoption if he had failed to support?

Thomas F. Jones:

I would have to agree with that Your Honor, but we contend that this case should be decided under the present statute for two reasons, number 1- the present statute adequately protects the rights of appellant of his Due Process and Equal Protection rights.

Secondly it would be a manifesting justice in the strongest sense of the word to apply an adoption statute to a case, to a new adoption statute which becomes effective for the 21 months after the original filing of the petition for adoption.

I think that is adequate authority in the cases of this Court to allow you to decide under the present statute.

I suppose you can support this judgment without defending the automatic rule?

Thomas F. Jones:

Yes.

As I was saying before —

Except, that the judgment was based upon the simple fact that the child was illegitimate and this was the illegitimate father that is what the trial judge very explicitly relied upon?

Thomas F. Jones:

that is correct Your Honor, but —

Page 7, its first conclusion of law that child in question being illegitimate the consent of the mother alone and to the adoption is sufficient.

Citing the statute.

Thomas F. Jones:

That was correct Your Honor.

And he never, he thought since a statute so provided that he could not even give a illegitimate father any opportunity to show anything further and that is what the statute provide?

Thomas F. Jones:

That is correct Your Honor, but he —

But he did get back the trial judge did have a hearing on the legitimation petition at the same time as the adoption petition?

Thomas F. Jones:

He did that is correct Your Honor and then —

Did not in ruling on the legitimation petition, did the trial court not say that the best interest of the child would not be served by legitimation?

Thomas F. Jones:

This is correct.

Findings of fact number 15 and 16.

Number 15 says the proposed adoption of the child by appellee is in the best interest of the child and the proposed legitimation in habeas corpus is not in the best interest of a child, so even though he decided based on the statutory scheme which we have been discussing, he has we might say left the door open and found in accordance with the facts and circumstances of this case.

Thurgood Marshall:

That is not your fault, but would it not be “to the best interest of the child” not to have the public litigation all over the life?

Thomas F. Jones:

Your Honor, that is a very interesting question and one that has troubled me as a matter of fact there is other litigation based on news reports of this, but I would like to refer the Court to as I say the most important thing here is the best interest of the child.

Darrell himself has stated that he wants to be adopted as a matter of fact when I put that question to him he says I want my name changed.

This is perhaps the most important thing to the child.

Only he can understand the stigma of having to go through, like his last name different from —

May I ask Mr. Jones.

Assume we are right and assume that we have been reviewed that this judgment could be supported on those findings as the best interest of the child?

Thomas F. Jones:

Yes sir.

Where does leave us as to Georgia statute?

Thomas F. Jones:

Your Honor, I would have to be frank and say that I would hope, a decision would be based on the present statute.

This is solely on the statute that Appellees relied on 21 months ago.

Well, the difficulty is that at least you suggest as I read your brief as my brother Blackmun said earlier, if we do not decide this case by January 01, then a new statute becomes effective, your brief seems to have suggested then this case would be controlled by the new statute?

Thomas F. Jones:

Your Honor, that position is taken in the brief after further analysis since submission of the brief, I have concluded that there might possibly be that question of law which I referred to earlier based on —

Warren E. Burger:

First I suppose from your point of view if we decided in your favor and decide within the 30 or 60 days that solve the problems?

Thomas F. Jones:

Yes, it does Your Honor.

Thomas F. Jones:

It really does, but as I say Darrell himself is the one who has to bear the stigma of having the different last name from his other family members.

We would submit that the child should not have to go through like bearing this burden to protect the rights of a person who has shown his lack of concern for the child.

He has not supported the child.

He is attempting to block the adoption of the child when I think it is obvious then this adoption is in the best interest of the child.

Well, as the adoption has been stayed?

Thomas F. Jones:

Your Honor this is another —

Would the statute purport to apply to an adoption that has been ordered by the state courts and the state courts for all intents and purposes are through with it?

Thomas F. Jones:

Your Honor, appellant has made the argument that his notice of appeal to this Court acted as a supercedious and there is no final judgment in this case.

Well, it may or may not be that the entire proceeding may be over but to what proceedings does a new statute say, to what it applies, does it apply to adoption proceedings that are then begun before them?

Thomas F. Jones:

The statute is effective as of January 01, 1978.

The only possibility of this case being decided under the new statute would be this Court’s general policy of deciding cases under the law as it exists at the time of decision.

Well, fairly that is matter of federal law is it not that the Georgia courts might or might not follow the cases like Bradley v. The Richmond School Board.

It has been the rule in the federal court since John Marshall’s decision in the case I do not remember that we apply the law that is in effect at the time we decide the case.

I presume that Georgia courts might be free to adopt that policy or not as they chose?

Thomas F. Jones:

I would assume so Your Honor.

I would frankly love to see the Court follow what I think to be adequate authority in the Bradley case and in the Green versus MacEvoy case which states that where a “manifest in justice” would result from applying a new statute and that statute should not be applied.

I think this is a classic example of a manifesting justice where a petition —

Well, Mr. Jones, actually an adoption order has been granted in this case has it not?

Thomas F. Jones:

Your Honor the order which is listed which is given in the appendix has been entered.

Well, I am working at the opinion of your Supreme Court.

The adoption was granted and legitimation petition of visitation rights was denied, but the natural father appeals, so he appeals from the granting of the adoption?

Thomas F. Jones:

This is correct Your Honor.

And I suppose if you are right that it may be sustained on the best interests of the child’s approach with that reference to that Section on veto?

Thomas F. Jones:

That is correct Your Honor.

Then how would the new statute become affective anyway and applicable at all?

Thomas F. Jones:

Well, Your Honor I have sort of put a Section in my brief in anticipation of a possible ruling by this Court.

I am very much afraid that this Court may be tempted to remand this case to Georgia, but I would prefer and I think that that —

Well, I must say I do not see how we can say whether the new statute applies or does not apply?

But I take it, would be something for the Georgia courts in the first instance.

I do not see that we can say whether it does not.

It is a matter of Georgia law, it is not?

Thomas F. Jones:

Well, I think that is correct, but I think this Court has controlled over its own decision and would have the authority to uphold this adoption even if the decision is made after January 01, based on the Bradley and Green line of cases.

Appellant in this case wants the best of both words, he wants the immortality of you can call that that of having a son with his name, but at the same time he does not want to satisfy the obligations that are attended with this relationship.

He wants to have his cake and eat it too.

Mr. Jones I have been struggling through what I think is a copy of the new statute appended to the state’s brief, in a preliminary brief at the time of jurisdiction state law has filed here?

Am I correct in assuming there is nothing in the statute in so many orders that excludes his application to pending adoption proceedings, it merely says that it will take effect to January 01, 1978?

Thomas F. Jones:

That is the only statement that I have been able to find.

So it is the problem of Georgia law as to whether it affects pending proceedings?

Thomas F. Jones:

Well, I would have to agree with the Court but I would still state that this Court has adequate authority to uphold this adoption as a stand even if the Court reaches its decision after January 01.

The adoption has taken place, has it not?

Thomas F. Jones:

The adoption order has been entered.

And there has been no stay?

Thomas F. Jones:

As I say my opponent has made the argument that there has been a stay.

Well, there has —

Well, that is by force of the notice of appeal?

Thomas F. Jones:

This is correct.

What is that rule in Georgia law, while it was on appeal with the Georgia Supreme Court?

Under Georgia law, does taking the appeal operated as supercedious?

Thomas F. Jones:

Taking of an appeal does act as a supercedious.

In the Georgia system?

Thomas F. Jones:

This is correct.

The child himself has been called by the name of Walcott, the adopted name ever since the decision of this case.

Living with the Walcott?

Thomas F. Jones:

He is still living with the Walcotts as he has for the last seven years.

The child began using that name after the order of adoption was entered, but before my opponent filed his appeal.

Mr. Jones, I understood the question of counsel for appellant that his real objective is to obtain visitation rights.

Did the Georgia Court have that power under Georgia law to accord visitation rights under the present statute.

I assume that it did since in view of the order and are denying those rights?

Thomas F. Jones:

I would agree I believe that the Court would have had the authority to allow visitation rights, but the Court found that these rights would not be in the best interest of the child.

Right, but would not a Georgia Court have that same authority under the new statute?

Thomas F. Jones:

Your Honor under the new statute I believe the primary emphasis is on the adoption as a whole.

But even so take the case of an absolute divorce in, say in state of Virginia the Court would have full authority to allow visitation rights to the father after he no longer had any custody, it will depend on the best interest of the child as you have said, what I am driving at is so far as visitation rights are concerned, under Georgia law, does it make any difference which statute is applied?

Thomas F. Jones:

Our position would be that no it does not matter.

Well, excuse me.

On Georgia law, even no visitation rights were feasible, if there has been an adoption?

No, that was not an adoption.

Is that true under Georgia law?

Thomas F. Jones:

Excuse me sir.

Is that true under Georgia law?

That in adoption there are no visitation rights, that is my second question?

Thomas F. Jones:

Your Honor my analysis of the statute does not reveal any statement regarding visitation rights if an adoption is granted either under the old or the new statute.

Since all domestic relations actions involved the equity jurisdiction of the Court.

My initial reaction would be that the Court certainly would have the jurisdiction and do anything if thought appropriate.

Even after an adoption, but after giving parental rights to the adoptive father they would still have to allow visitation rights?

Thomas F. Jones:

No, no I do not think that would have to allow visitation rights.

Or that they even could?

Thomas F. Jones:

I am not sure that they could.

I have found in my analysis that their statute does not.

Warren E. Burger:

But turning to the judge’s order on page 72, the Fulton County Superior Court order, he first makes the finding in 14 that the proposed adopted father is a proper person to adopt the child and then finding 15 that proposed adoption of the child is in the best interest of the said child and finding 16 for proposed legitimation of the child is not in the best interest, nor is the granting of the habeas corpus relief seeking visitation rights in the best interest of the child.

Does that not sound as he at least thought that you might have an adoption and still grant visitation rights?

Thomas F. Jones:

My reaction to that would be that the judge in view of the lack of definiteness in this whole situation wanted to keep himself covered and rule on all of the facts.

He has stated his conclusion that he thinks that any visitation rights are not in the best interest of the child.

Thurgood Marshall:

Mr. Quilloin has visitation rights to Mr. Walcott?

Child belongs to somebody else is it not?

Thomas F. Jones:

This is correct Your Honor.

This is correct.

Thurgood Marshall:

Where did somebody get visitation rights to my child and that I do not understand?

Thomas F. Jones:

This is not done.

I may have misunderstood Mr. Justice Powell’s question in certain statements that I made.

These were alternative, these were various proceedings that were consolidated.

Thomas F. Jones:

That is correct.

This is the alternatives one was to have an adoption and the other was to grant this habeas corpus petition or something else which would have carried with visitation rights?

Thomas F. Jones:

This is correct.

But there are alternatives.

Once the child is adopted he becomes the son or daughter of father of the adoptive parents and all visitation rights by anybody else disappear?

Thomas F. Jones:

I would agree completely Your Honor in this particular case.

Mr. Jones do you know I have just asked the same question in a little different form.

Is there any precedent in Georgia that which you are aware or there is a divorce and then a remarriage by the mother who has custody of the child and then an adoption by the second husband of the mother and then after that the natural father seeking visitation rights?

Thomas F. Jones:

Your Honor, the divorce situation is very different from the situation that we have here above.

In a divorce situation the child is legitimate.

He starts as that —

I understand that, but is there precedent in Georgia in the sequence I described for allowing the natural father to retain visitation rights notwithstanding the adoption by the second husband of the mother?

Thomas F. Jones:

Well, Your Honor my reaction to that would be that if the natural father contested the adoption then it would never take place in the first place, so the second —

May be he consented to the adoption, somebody consented to the adoption?

Thomas F. Jones:

I am not aware of any authority on that proposition.

I would request an opportunity to look for some for the Court.

Well, that is perhaps too far.

Thomas F. Jones:

Your Honor as I have stated this appellant wants the best of both words.

He does not want to assume the responsibility.

He does not contest that the child is in a loving family environment, he only wants to keep the child from losing his name and I would just like to conclude by saying that he should not have that right in derogation of the rights of the child which is the most important thing involved in this case.

Thank you.

Warren E. Burger:

You have one minute left Mr. Skinner.

William L. Skinner:

Mr. Chief Justice and may it please the Court.

The record is quite clear.

Darrell said, he wanted to continue visiting with Mr. Quilloin.

That is terribly important in this case and it is quite clear in the appendix that he said that also if Mr. —

That the child was really very diplomatic he did not want to hurt anybody’s feeling?

William L. Skinner:

That is absolutely true.

These are good people.

They are all good people.

William L. Skinner:

I have very difficult time saying that the Walcotts are not good people.

They do not have that much trouble saying that Mr. Quilloin is not good.

I think that Mr. Quilloin has performed admirably in this case and he will continue to perform.

He actually told the Court that he wants to support the child.

He is willing to accept whatever Court ordered.

Support of the child.

He is willing to tender it voluntarily and for this reason I do not think that he should be treated any differently from the divorced father.

In answer to the court’s question to Mr. Jones, there is no question if the adoption the big rock question in this case is – can the adoption be completed?

Once the adoption was completed all the other matters became immaterial because he had no issue.

He had no rights.

Warren E. Burger:

Thank you gentleman.

The case is submitted.