TOM JAMES: The Rights of Unwed Fathers.

In 1972, the United States Supreme Court issued its landmark decision in Stanley v. Illinois. In that case, the Court held, for the first time, that fathers of children born out of wedlock, like mothers of children born out of wedlock, have parental rights; that the parental right of custody is a fundamental natural right protected by the Fourteenth Amendment even when the parent in question is male; and that statutory schemes that unreasonably discriminate against unwed fathers with respect to the custody of children are unconstitutional.

Following the decision in Stanley v. Illinois, most states amended their statutes to provide some protections for the rights of putative fathers. They did not completely eliminate the maternal preference, however. Most states left intact the rule that mothers possess the exclusive right to sole legal and physical custody of children born to them out of wedlock until there is a formal judicial declaration of paternity, at which time the father may have an opportunity to petition a court for an “award” of parental rights.