JEFFERSON (Bernard), J. I dissent.
I disagree with the majority’s holding that a natural father of a non-marital child has no power to veto the adoption of his child if such father is not a “presumed natural father” as that term is defined in Civil Code section 7004. In so holding, the majority determines that the trial judge’s order—giving the unmarried natural father custody of his nonmarital child to enable him to become a “presumed natural father” with power to veto the adoption of his child—was beyond the jurisdiction of the trial judge.
The history of the proceedings in the case at bench is of more than slight importance. The child involved, Baby Boy G., was born on August 23, 1978. Three days later, the mother, Ms. G., placed the baby with Mr. and Mrs. J., who filed an adoption proceeding on August 31, 1978, which is only eight days after the birth of Baby Boy G. The father of Baby Boy G., F.L., not married to the mother, has objected to the adoption and has sought custody of his child as a part of the proceedings involved herein.
I consider that this case presents two issues: First, the question of the proper interpretation of various provisions of the Uniform Parentage Act (Civ. Code, § 7000 et seq). Second, the question of whether Civil Code section 7017, subdivision (d), and Civil Code section 224, constitute a violation of the equal protection rights of an unmarried father in dispensing with his consent to the adoption of his child while requiring the unmarried mother’s consent to such an adoption.
I
Does Civil Code Section 7017, Subdivision (d), Preclude the Trial Court From Granting Custodial Rights to an Unmarried Father Prior to Ruling on an Adoption Petition in Order to Enable Such Unmarried Father to Become a Presumed Natural Father Within the Meaning of Civil Code Section 7004?
[317]It is the view of the majority that the focus of the Uniform Parentage Act that was enacted in 1975 was to make the best interests of a child always the paramount consideration and to make the parental interest a subordinate one. For this view the majority quotes from Egginton & Hibbs, Termination of Parental Rights in Adoption Cases: Focusing on the Child (1975) 14 J. Fam. L., 547, 549-550 and from Bodenheimer, New Trends and Requirements in Adoption Law and Proposals for Legislative Change (1975) 49 So.Cal.L.Rev. 10. I find the views of these authors to be neither persuasive nor convincing. I believe that the major public policy that undergirds the Uniform Parentage Act is that of favoring a “parent and child relationship,” even though that relationship is one of an unmarried parent and child. This emphasis replaces the former public policy that emphasized the promotion of “legitimacy.” Consequently, the provisions of the Uniform Parentage Act should be interpreted to promote the parent and child relationship between an unmarried father and his child as well as to promote the relationship between an unmarried mother and that same child.
The public policy to promote an all-embracive parent and child relationship that undergirds the Uniform Parentage Act has been described by the decisional law as follows: “Under the Uniform Parentage Act (Civ. Code, § 7000 et seq., enacted Stats. 1975, ch. 1244) the ‘child and parent relationships’ extend equally to every child and to every parent regardless of the marital status of the parent. All statutory references to ‘legitimacy’ and ‘illegitimacy’ are eliminated. The major premise of the act is to provide for substantive equality of children regardless of the marital status of the parents. The right-duty relationship existing between the parent and child are equalized without reference to the marital status of the parents, without regard to sex.” (Griffith v. Gibson (1977) 73 Cal.App.3d 465, 470 [142 Cal.Rptr. 176]; fn. omitted.)
In addition to the Uniform Parentage Act, other fairly recent legislation has declared that the policy in favor of a “parent and child relationship” is the primary fact of importance in family relationship, rather than former statutory provisions that emphasized “legitimacy.” (See Stats. 1975, ch. 1244, §§ 15-20, pp. 3202-3203.)
Civil Code section 7017, which deals with the subject of “adoption,” provides for proceedings to identify the natural father of a child and to determine the rights of the father. Subdivision (d) of section 7017 provides: “If, after the inquiry, the natural father is identified to the satisfaction of the court, or if more than one man is identified as a pos[318]sible father, each shall be given notice of the proceeding in accordance with subdivision (f).... If any of them fails to appear or, if appearing, fails to claim custodial rights, his parental rights with reference to the child shall be terminated.. If the natural father or a man representing himself to be the natural father, claims custodial rights, the court shall proceed to determine parentage and custodial rights in whatever order the court deems proper. If the court finds that the man representing himself to be the natural father is a presumed father under subdivision (a) of Section 7004, then the court shall issue an order providing that the father’s consent shall be required for an adoption of the child. In all other cases, the court shall issue an order providing that only the mother’s consent shall be required for the adoption of the child.” Subdivision (f) of Civil Code section 7017, referred to in subdivision (d), provides: “Notice of the proceeding shall be given to every person identified as the natural father or a possible natural father in accordance with the provisions of the Code of Civil Procedure for the service of process in a civil action in this state, provided that publication or posting of the notice of the proceeding shall not be required. Proof of giving the notice stall be filed with the court before the petition is heard. However, if a person identified as the natural father or possible natural father cannot be located or his whereabouts are unknown or cannot be ascertained, the court may issue an order dispensing with notice to such person.”
A key provision of Civil Code section 7017, subdivision (d), is the provision that if a natural father or one who claims he is a natural father, seeks custody of his child, “the court shall proceed to determine parentage and custodial rights in whatever order the court deems proper.” In view of the supremacy of the objective of promoting a “parent and child relationship” under the Uniform Parentage Act, subdivision (d) of Civil Code section 7017 ought to be interpreted to require a trial court to grant custody of his child to an unmarried father who seeks such custody and thus enable him to become a “presumed natural father.” The father’s consent to the adoption of his child would then be required in order for such an adoption to be effectuated. Under such an interpretation of Civil Code section 7017, subdivision (d), the trial court in the case at bench acted properly in making its order granting custody of the child, Baby Boy G., to his father, F.L.
The presumed-natural-father requirement that would be satisfied by the granting of custody to an unmarried natural father is set forth in Civil Code section 7004. Under subdivision (a)(4) of this section, a man [319]will be presumed to be the natural father of a child if “[h]e receives the child into his home and openly holds out the child as his natural child.”
An interpretation of Civil Code section 7017, subdivision (d), somewhat similar to the one I suggest, was made in In re Trida M. (1977) 74 Cal.App.3d 125 [141 Cal.Rptr. 554]. The Trida M. court was concerned especially with the problem of an unmarried father who was precluded by the purposeful actions of the mother from becoming a “presumed natural father” through receiving his child into his home and openly holding out the child as his natural child. It was in this context that the Trida M. court stated: “Where the mother has frustrated the natural father’s efforts to hold the child out as his, the court may, in a proper case, first grant him custody, allow him to complete the conduct necessary under section 7004, subdivision (a)(4) to establish himself as a presumed father, and then make the appropriate order.” (Trida M., supra, 74 Cal.App.3d 125, 134.) “The appropriate order” referred to by the Trida M. court in this situation would involve a finding and order that a man who is in fact the unmarried natural father of the child is a “presumed natural father” under Civil Code section 7004, subdivision (a)(4), by virtue of obtaining custody of his child with the consequence that he has received the child into his home and has openly held out the child to be his natural child. The court would then make an order, pursuant to Civil Code section 7017, subdivision (d), that the father’s consent shall be required for an adoption of the child.
The majority makes reference to the case of Adoption of Marie R. (1978) 79 Cal.App.3d 624 [145 Cal.Rptr. 122], which was before this court. The facts in the Marie R. case are substantially similar to the facts presented in the case at bench. In Marie R., the mother of the unmarried father’s child, immediately after the birth of the child, turned the child over to a couple who desired to adopt the child. Before this transfer was made, however, the father offered to take the child into his home and provide for its support, but the mother refused the father’s offer. The father objected to the consummation of the adoption proceeding and contended that he should have been considered the “presumed natural father” for purposes of his consent being required for the adoption.
In spite of the fact that the mother had frustrated his efforts to receive the child into his home and openly hold out the child as his natural child, the majority in the Marie R. case held that it was immaterial that the mother had frustrated the unmarried father’s efforts to [320]become a “presumed natural father” within the meaning of Civil Code section 7004, subdivision (a)(4), and that, under Civil Code section 7017, subdivision (d), only the mother’s consent was required for the adoption. I dissented in the Marie R. case on the ground that the evidence presented there was sufficient for a finding that there had been a “constructive” taking of the child into the father’s home to support the trial court’s order that the unmarried natural father had become a “presumed natural father” entitled to the custody of his child and to block the child’s adoption by refusing to give his consent thereto.
I consider the majority’s decision in Marie R. to have been erroneous, and I consider that the majority’s holding in the case at bench is equally erroneous, indefensible and untenable.
The majority takes the view that the Trida M. court and the trial court in the case at bench erred in making an assumption that the statutory scheme of the Uniform Parentage Act deprived the court of discretion to consider the child’s best interests as between the natural father’s demand for custody and the natural mother’s wish to place the child for adoption. It is my view that it is the majority in the case at bench that commits egregious error and not the Trida M. court or the trial court in the case at bench. I can see no rational basis for the majority’s view that the unmarried mother’s wishes should prevail over those of the unmarried father. In the case before us, the unmarried mother who does not desire custody of her child and does not desire a parent and child relationship with her child, ought not to be placed in the superior position of being able to consent to the adoption of her child and to preclude the unmarried father of her child from obtaining custody and thus being in a position to veto his child’s adoption. The majority sanctions this indefensible and unjustifiable view of the law that places such an unmarried mother in a position to prevent the father from exercising a veto power over the adoption by the simple device of not permitting the father to take the child into the father’s home to qualify as a “presumed natural father.”
The majority relies in part upon In re B. G. (1974) 11 Cal. 3d 679 [114 Cal.Rptr. 444, 523 P.2d 244], for its view that, under the Uniform Parentage Act, once the unmarried natural mother gives her consent, the trial court may decide that it is for the best interests of the child that such child be adopted without giving the unmarried natural father a right to veto such adoption. But the In re B. G. case does not stand for the proposition that, as between the desire of an unmarried natural [321]father for the custody of his child and the desires of a nonparent to adopt the child and the mother to consent to such adoption, the right of the nonparent to adopt the child takes precedence over the desire of such father for custody of his child, based solely on the trial judge’s determination of what constitutes the best interests of the child.
The In re B. G. court dealt with making an interpretation of section 4600 of the Civil Code (a part of the Family Law Act). As between parents desiring custody, section 4600 expressed a policy of a preference in accordance with the best interests of the child. But in a dispute between a parent and nonparent over a child’s custody, section 4600 requires a greater showing than simply the best interests of the child in order for custody to be awarded to a nonparent as against the claim of a parent.
Thus, the In re B. G. court observed: “As enacted, section 4600 expressly recognizes that custody should be awarded to parents in preference to nonparents. As between parents, it permits the court to award custody ‘according to the best interests of the child,’ but in a dispute between a parent and a nonparent, the section imposes the additional stipulation that an award to the nonparent requires a finding that ‘an award of custody to a parent would be detrimental to the child.’ Pursuant to the language of this section, the legislative history previously discussed, and the policy of the Juvenile Court Law as set out in section 502, we conclude that section 4600 permits the juvenile court to award custody to a nonparent against the claim of a parent only upon a clear showing that such award is essential to avert harm to the child. A finding that such an award will promote the ‘best interests’ or the ‘welfare’ of the child will not suffice.” (In re B. G., supra, 11 Cal.3d 679, 698-699; fns. omitted.)
The majority finds support from In re B. G. by noting a distinction between the family relationships presented in In re B. G. and the family relationships presented in the case at bench. Thus, the majority points out that the In re B. G. custody contest between a nonparent and a parent involved a custody contest over marital children in which, as between a mother who had never abandoned her children and a court-selected foster home, the mother was entitled to prevail unless there was a showing greater than the best interests of the children in order for a nonparent to be given preference. The majority points out that, in the case at bench, as contrasted with the In re B. G. situation, we are concerned with nonparents who seek adoption as against the rights of an [322]unmarried natural father who has not had a parental relationship with his child whose custody is involved. But what the majority overlooks in this analysis is the fact that the natural father, although not married to the mother, has been deprived of any opportunity to develop a parent and child relationship with his child solely because of the conduct of the mother in not desiring herself to have a parent and child relationship with her child, and, also, in seeking to deprive the father of their child from obtaining a “parent and child relationship” with their child to enable the father to veto the adoption.
I can find no logic in the majority’s position that the provisions of Civil Code section 7017, subdivision (d), reflect a legislative intent to give greater weight to the child’s best interests than to the preference of the unmarried (not married to the mother) father for custody of his child. I consider, as did the Trida M. court, that the legislative intent, as manifested by the provisions of the Uniform Parentage Act in general and especially by the provisions of section 7017, subdivision (d), is clearly that of fostering a parent and child relationship between all parents and all children so that the trial court is compelled to recognize the right of an unmarried father who seeks custody of his nonmarital child to be given that custody by court order so that he is then entitled to preclude a disruption of the parent and child relationship so instituted and formed, by refusing to give his consent to the adoption of his child by a nonparent.
The public policy principle set forth in Civil Code section 4600 of favoring custody to a parent when the contest is between a marital parent and a nonparent, as enunciated in the In re B. G. case, supports the interpretation of Civil Code section 7017, subdivision (d), as set forth in In re Trida M. and supported by me, that would favor custody to a parent as against the nonparent, even though the parent involved is an unmarried natural father of the child in question.
II
Civil Code Sections 7017, Subdivision (d), and 224, in Requiring That an Unmarried Mother Must Consent to Her Child’s Adoption, but Not Requiring That an Unmarried Father Must Consent to His Child’s Adoption, Violate the Equal Protection Clauses of Both the Federal Constitution and the California Constitution
[323]The majority rejects the equal protection of the laws contention made by F.L., the unmarried father of Baby Boy G., in the case before us. The majority reasons that the California statute (the Uniform Parentage Act) avoids the fault of discriminating between all unmarried mothers and all unmarried fathers by a statutory classification which sets apart those natural fathers who have neither married the mother nor attempted marriage with the mother nor lived with the child as a parent. The classification referred to is set forth in Civil Code section 7004, subdivision (a), which creates the concept of a “presumed natural father” as either (1) a father who was married to the child’s mother; (2) a father who has attempted marriage with the child’s mother; or (3) a man who receives the child into his home and openly holds out the child as his natural child. Under the provisions of Civil Code section 7017, subdivision (d), the presumed natural father’s consent is required for an adoption, along with the mother’s consent. Civil Code section 224, in part pertinent to the issue before us, provides that “[a] child having a presumed father under subdivision (a) of Section 7004 cannot be adopted without the consent of its parents if living.” (Italics added.) If a natural father does not meet the test of one of these three categories of a “presumed natural father,” his consent is not required for an adoption of his child, and his child may be adopted upon the consent of the mother only.
As I view this statutory classification which requires, for a child’s adoption, the consent of all unmarried natural mothers but does not require the consent of all unmarried natural fathers, it does not constitute a reasonable classification to avoid a denial of equal protection of the laws to an unmarried natural father such as F.L. in the case before us who did not fall within the category of a “presumed natural father.” The provisions of Civil Code section 7017, subdivision (d), and Civil Code section 224, in providing a veto power over a child’s adoption for all unmarried mothers but not permitting a veto power by an unmarried natural father who is not within the category of a “presumed natural father,” constitute an invidious discrimination between unmarried natural fathers in the situation that F.L. finds himself and unmarried mothers which is interdicted by the constitutional guarantee of equal protection of the laws.
The rationale of the majority escapes me in its view that the Legislature had a right to conclude that all unmarried mothers are able to make an intelligent and rational decision as to what is in the best interests of their children insofar as an adoption is concerned, but that an [324]unmarried natural father under the circumstances presented in the case at bench is unable to make such an intelligent and rational decision. The fact that a mother gave birth to her child and, thus, by necessity, has had a connection with the child at least at the moment of birth, constitutes an insufficient basis for a classification between such mother and an unmarried natural father who does not have that opportunity for a fleeting connection with the child upon its birth.
The majority finds constitutional merit in a rule of law that would provide that an unmarried mother’s fleeting connection with her child at birth—fleeting because she immediately delivers the child to nonparent persons for adoption—is entitled to a right to either consent to an adoption of her child or to veto such an adoption while the unmarried natural father of such child is given no opportunity to obtain even the fleeting connection with his child so as to become a “presumed natural father” with the same alternative right of the mother to either consent to the adoption or to veto the adoption.
The invidious nature of the classification upheld by the majority in the instant case is that the unmarried mother—who does not want the custody of her child and the responsibility which goes with such custody—is given the right to consent to an adoption of the child by non-parents and also the right to effectively preclude the unmarried father from obtaining custody and vetoing an adoption by simply frustrating all efforts of the father to obtain custody and thus put himself into a position where his consent to an adoption is required as a “presumed natural father” under the provisions of Civil Code section 7004, subdivision (a)(4). I conclude that a statutory classification—which places the unmarried mother in such a superior position to that of the unmarried natural father of their child—constitutes a compelling case of an invidious discrimination against the unmarried natural father. I am unable to find any conceivable state interest—substantial or otherwise—to justify this classification and distinction between the unmarried natural mother and the unmarried natural father that we have in the case at bench. Certainly “the best interests of the child” cannot rationally dictate such a result that is countenanced by the majority in the case before us.
The majority cites several cases of the United States Supreme Court as either supporting its holding or being distinguishable so as not to preclude its holding. One such case is that of Quilloin v. Walcott (1978) 434 U.S. 246 [54 L.Ed.2d 511, 98 S.Ct. 549]. In Quilloin, a Georgia [325]statute permitted an adoption of a child with the mother’s consent and without requiring a consent by the unmarried father of the child. In Quilloin, the child involved was 12 years of age and had been with the mother since birth. The majority in the instant case advances the notion that the Georgia statute, which was held by the Quilloin court not to violate any equal protection rights of the natural father, represents a good illustration of the principle that a state may treat a father whose relationship to his child is only biological differently than it treats a father who has established a family relationship with the mother and child.
But this is an erroneous concept of the holding of Quilloin. The Georgia statute also provided that an unmarried father could legitimate his child by simply petitioning the trial court and asking for the legitimation of such child. By issuing an order of legitimation, such father’s consent would then be required for any subsequent adoption of the child. The Quilloin court emphasizes that the unmarried father before the court at no time during the 11 years between the child’s birth and the filing of the nonparent adoption petition, filed a petition to legitimate his child. Under the Georgia statute, had the natural father filed a petition for legitimation of his child, the mother could not have prevented such legitimation and thus could not have frustrated the desire of the father to put himself in a position to veto an adoption consented to by the mother but not consented to by him. Furthermore, the Quilloin court made the point that, in opposing adoption of his child 11 years later and seeking an order of legitimation, the natural father “does not even now seek custody of his child.” (Quilloin, supra, 434 U.S. 246, 256 [54 L.Ed.2d 511, 520].) (Italics added.) The Quilloin court concluded that the Georgia statute, “as applied in this case, did not deprive appellant of his asserted rights under the Due Process and Equal Protection Clauses.” (Id. at p. 256 [54 L.Ed.2d at p. 520].) (Italics added.)
It is manifest that Quilloin does not sustain the majority’s position that Civil Code section 7017, subdivision (d), and Civil Code section 224 are not violative of the equal protection rights of F.L., the natural father in the case before us. The Georgia statute provided a method for the unmarried father to acquire the right to veto the adoption of his child by the simple process of obtaining legitimation of his child through a petition for the same. In Quilloin, it is significant that the adoption petition was not filed until 11 years after the child’s birth. In the case at bench, the adoption proceeding was commenced within a [326]few days of the birth of F.L.’s child. The Georgia statute offered no opportunity for the mother to frustrate the ability of the natural father to be placed in a position where his consent to adoption of his child would be required. But under the majority’s interpretation of Civil Code section 7017, subdivision (d), the unmarried father, F.L., is given no opportunity at all to obtain custody of his child similar to the Georgia statute’s opportunity for a natural father to legitimate his child and thus acquire equal status with the unmarried mother to withhold a consent to adoption.
As I read Quilloin, with its holding that the Georgia statute was constitutional as applied to the specific factual situation presented in the case before the court, I have no doubt as to what the result would have been had the adoption there been sought within a few days after the child’s birth and without any opportunity being given to the natural father to first seek and obtain legitimation of his child in order to be given the veto power over the adoption.
If the holding and views of Quilloin were to be applied to the provisions of the California Uniform Parentage Act and the factual situation before us, I have no doubt that such provisions could not stand constitutional scrutiny. The Quilloin court made this cogent and significant observation: “We have little doubt that the Due Process Clause would be offended ‘[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.’ [Citation.] But this is not a 'case in which the unwed father at any time had, or sought, actual or legal custody of his child.” (Quilloin, supra, 434 U.S. 246, at p. 255 [54 L.Ed.2d 511, at p. 520].) (Italics added.)
The case of Parham v. Hughes (1979) 441 U.S. 347 [60 L.Ed.2d 269, 99 S.Ct. 1742], relied upon by the majority, is simply inapposite to the case presented before us. A statute denying to fathers of illegitimate children the right to recover damages for the wrongful death of a child while permitting recovery by unmarried mothers provides no analogy for interpreting a California statute to provide that an adoption requires the consent of an unmarried mother of the child involved but not the consent of the unmarried father, and upholding the validity of the statute against a claim that it violates the unmarried father’s right to equal protection of the laws.
[327]It is to be noted that Parham was decided by a five-to-four divided court. Four members of the Parham majority reasoned that the statutory classification was rationally related to a permissible state objective of avoiding fraudulent claims of paternity after a child’s death because of the inherent problem of establishing paternity. The fifth member of the majority agreed that the gender-based distinction made by the Georgia statute did not violate equal protection, but arrived at his conclusion of legality of the statute by relying on the fact that the easy method of legitimation of a child by the unmarried father, provided by the Georgia statute, enabled an unmarried father to prove his paternity and obtain the legitimation of his child during the life of the child when evidence would be more readily available. Consequently, a father who failed to legitimate his child during the child’s lifetime cannot validly complain of his inability to sue for the wrongful death of that child.
The minority of the court in the Parham case took the view that the Georgia statute involved constituted an unconstitutional discrimination against the fathers of illegitimate children. The Parham minority made the cogent observation that “[t]he plain facts of the matter are that the statute conferring the right to recovery for the wrongful death of a child discriminates between unmarried mothers and unmarried fathers, and that this discrimination is but one degree greater than the statutory discrimination between married mothers and married fathers. In order to withstand scrutiny under the Equal Protection Clause, gender-based discrimination ‘“must serve important governmental objectives and must be substantially related to achievement of those objectives.’” [Citation.] Because none of the interests urged by the State warrant the sex discrimination in this case, I would reverse the judgment below.” (Parham, supra, 441 U.S. 347, 362 [60 L.Ed.2d 269, 281-282] (dis. opn. of White, J.).)1 I find the analysis and reasoning of the dissenting opinion in Parham to be far more compelling and persuasive than the analysis and reasoning set forth in the majority opinions.
The main reliance by F.L., the natural father in the case before us, is upon the case of Caban v. Mohammed (1979) 441 U.S. 380 [60 [328]L.Ed.2d 297, 99 S.Ct. 1760]. The majority seeks to distinguish Caban from the case at bench. The distinction is not a valid one. In my view, Caban is dispositive of the issue before us and mandates that the trial court’s order should be upheld. In Caban, the New York statute which the nation’s high court held could not withstand constitutional challenge on equal protection grounds, was very similar to the California statutory provisions involved in the case before us. The Caban court described the New York statute by stating that it provided that “an unwed mother has the authority under New York law to block the adoption of her child simply by withholding consent. The unwed father has no similar control over the fate of his child, even when his parental relationship is substantial—as in this case. He may prevent the termination of his parental rights only by showing that the best interests of the child would not permit the child’s adoption by the petitioning couple.” (Caban, supra, 441 U.S. 380, 386-387 [60 L.Ed.2d 297, 303-304].)
To determine the constitutionality of the classification made by the New York statute, the Caban court analyzed the classification involved by invoking the standard that “[g]ender-based distinctions ‘must serve governmental objectives and must be substantially related to achievement of those objectives’ in order to withstand judicial scrutiny under the Equal Protection Clause. [Citations.] The question before us, therefore, is whether the distinction in § 111 between unmarried mothers and unmarried fathers bears a substantial relation to some important state interest. Appellees assert that the distinction is justified by a fundamental difference between maternal and paternal relations—that ‘a natural mother, absent special circumstances, bears a closer relationship with her child. . .than a father does.’” (Caban, supra, 441 U.S. 380, 388 [60 L.Ed.2d 297, 304-305].)
The Caban court rejected all arguments that were advanced to support the distinction made by the New York statute between unmarried mothers and unmarried fathers with respect to “consent” for an adoption of their children. The arguments rejected had set forth a number of factors thought to sustain the distinction as bearing a substantial relation to some important state interest. In holding that the New York statute could not withstand constitutional scrutiny, the Caban court, stated: “In sum, we believe that § 111 [the New York statute] is another example of ‘overbroad generalizations’ in gender-based classifications. [Citations.] The effect of New York’s classification is to discriminate against unwed fathers even when their identity is known and they have manifested a significant paternal interest in the child. [329]The facts of this case illustrate the harshness of classifying unwed fathers as being invariably less qualified and entitled than mothers to exercise a concerned judgment as to the fate of their children. Section 111 both excludes some loving fathers from full participation in the decision whether their children will be adopted and, at the same time, enables some alienated mothers arbitrarily to cut off the paternal rights of fathers.” (Caban, supra, 441 U.S. 380, 394 [60 L.Ed.2d 297, 308].)
The majority in the case at bench seeks to explain the Caban holding by asserting that it must be read in light of the factual situation that the unmarried natural father had lived with the mother and the children and had actual custody of the children for a period of time before the commencement of the adoption proceedings. The majority concludes, therefore, that had the factual situation in Caban been the factual situation in the case at bench, F.L., the unmarried father before us, would have become a presumed natural father with the right to refuse his consent to the adoption of his child sought by Mr. and Mrs. J. But the majority neglects to point out that the Caban court did not place its holding on the ground of the special circumstances presented in that case. The Caban court did not hold that the New York statute was a violation of the equal protection clause only as applied to the unmarried natural father in Caban. The holding in Caban, therefore, was totally unlike the holding in Quilloin, in which the court concluded that the Georgia statute, as applied in the particular case, did not deprive the natural father of any asserted rights under the constitutional principles of due process and equal protection of the laws.
The majority makes reference to some dicta in a footnote to the Caban opinion in which the court points to the fact that there were some alternatives to the gender-based distinction of section 111 of the New York law. But in the same footnote and just prior to the sentence quoted by the majority, the Caban court made this observation: “In reviewing the constitutionality of statutory classifications, ‘it is not the function of a court “to hypothesize independently on the desirability or feasibility of any possible alternative^]” to the statutory scheme formulated by [the State].’” (Caban, supra, 441 U.S. 380, 393, fn. 13 [60 L.Ed.2d 297, 307].)
The statutory classification set forth in Civil Code section 7017, subdivision (d), and in the related Civil Code section 224, cannot be saved from constituting a violation of the equal protection rights of F.L., the unmarried natural father, on any theory that it is appropriate to [330]give all unmarried mothers the right to consent or not to consent to an adoption of their children and giving that same right to unmarried fathers who have attempted to marry the mothers or who have had the good fortune to have had custody of their children for some period of time, while denying to all other unmarried fathers any such alternative of a right to consent or not to consent to the adoption of their children. The majority would hypothesize that the California statute fully protects the unmarried father by providing him with a means of becoming a presumed natural father with the power of veto over the adoption of his child. This opportunity to gain a veto power is through the process set forth in Civil Code section 7004, subdivision (a)(4), for a natural father who “receives the child into his home and openly holds out the child as his natural child.”
But this hypothesizing of opportunity, engaged in by the majority, constitutes pure fiction as applied to F.L., the natural father in the case before us. The majority does not tell us in what way F.L. was given an opportunity to obtain custody and thus take the child into his home and become a presumed natural father. On the contrary, F.L. had no opportunity to meet the requirement of Civil Code section 7004, subdivision (a)(4). By turning over her child to Mr. and Mrs. J. for adoption within a few days after the child’s birth, F.L. was effectively precluded-—whether by legal means or other means—from gaining a position which would give him the same veto power over adoption of their child which the statutory provisions vest in Ms. G., the mother. Necessarily, the natural father before us is placed in a subservient position as contrasted with the right of the mother to either consent to adoption or to veto the adoption of their child.
In the return to the alternative writ, filed by F.L., the natural father of Baby Boy G. and the real party in interest before us, the evidence before the trial court is summarized as follows: F.L. testified that he and Ms. G., the mother of their child, had agreed that she would bear his child; that he would support her during pregnancy and for a period of time after birth and would support the child; that he did contribute toward the expenses of the mother’s pregnancy. F.L. also testified that he and his wife, M.L., who was unable to bear children, had reconciled their differences and that she wanted his son and would love his son. M.L. also testified below that she and F.L. had reconciled their differences and that she would love Baby Boy G. notwithstanding the fact concerning his conception.
[331]This summary of the evidence is set forth—not for any purpose of discussing the legality or illegality of the agreement between mother and father—but to indicate that F.L. sought custody of his child at the earliest opportunity presented, namely, in the adoption proceeding brought by Mr. and Mrs. J.
In Quilloin, it is to be noted that the natural father sought to legitimate his child in the adoption proceedings. But, in Quilloin, as contrasted with the instant case, the effort of the father to gain a status which would give him a power of veto of the adoption the same as the mother had, was not made until 11 years after the birth of the child and then was made without any attempt on the part of the father to secure custody of his child.
It is manifest that, under the circumstances of the case at bench, the distinction made between the unmarried mother and the unmarried father constitutes an “inflexible” gender-based distinction that is equally impermissible as that declared to be invalid in the Caban case.
In order for Civil Code section 7017, subdivision (d) and Civil Code section 224, to avoid the inflexible gender-based distinction proscribed by Caban, they must be interpreted to permit an unmarried father to have an opportunity to gain the status of a “presumed natural father” by securing custody of his child. If the first opportunity for him to gain such custody comes as a part of an adoption proceeding, filed within a few days after the birth of his child, that opportunity cannot be precluded by a trial court’s determination that the best interests of the child require that he be excluded from acquiring such an opportunity, even though such a determination may be predicated in part on the fact that it is the mother’s desire that neither she nor the father have any right to custody.
If Civil Code section 7017, subdivision (d), and Civil Code section 224 are not interpreted as I have suggested herein in order to validate the trial court’s order granting custody of Baby Boy G. to F.L., the natural father, then Civil Code section 7017, subdivision (d), and Civil Code section 224 must meet the fate of section 111 of the New York statute as determined by Caban and declared to be a violation of equal protection of the laws.
There is one other alternative to save the constitutionality of Civil Code sections 7017, subdivision (d), and 224, with their inflexible [332]gender-based distinction between unmarried mothers and unmarried fathers. This alternative is to interpret Civil Code section 7004, subdivision (a)(4) to permit F.L., the natural father of Baby Boy G. to be considered a “presumed natural father” under the circumstances here presented. I would therefore interpret Civil Code section 7004, subdivision (a)(4), as if it read expressly: “He receives the child into his home and openly holds the child out as his natural child or seeks to do so and is prevented from doing so by the acts of the mother of said child.” To save the constitutionality of a statute, this kind of interpretation, which adds or changes words of a statute, has been sanctioned by our high court. (See In re Edgar M. (1975) 14 Cal.3d 727 [122 Cal.Rptr. 574, 537 P.2d 406].)
Contrary to the holding of the majority, it is my view that, in making an order awarding custody of the child, Baby Boy G., to the natural father, F.L., the trial court did not err in its understanding of the law. Under a proper interpretation of Civil Code section 7017, subdivision (d), the trial court, under the circumstances presented in the instant case, was required to grant custody of the child to the father in order to permit him to become a “presumed natural father.” I conclude that to interpret these code sections in accordance with the holding of the majority renders them constitutionally invalid in violation of F.L.’s equal protection rights under both the United States Constitution and the California Constitution.
I would deny the petition for a writ of mandate.
The petition of real party in interest for a hearing by the Supreme Court was denied March 27, 1980. Mosk, J., and Newman, J., were of the opinion that the petition should be granted.
In footnote 4, Mr. Justice White stated: “The opinion of Mr. Justice Stewart shunts aside the readily apparent classification on the basis of sex in Georgia’s wrongful death scheme by stressing that appellant’s child was never made legitimate, but it is only the fortuitous event of the mother’s death in this case that makes legitimacy even relevant. In the case of parents of legitimate children, only the mother may sue if she is alive; the father is allowed to sue only ‘[i]f [there is] no mother.’ Ga. Code § 105-1307 (1978). See also infra, at 368 [60 L.Ed.2d 281].”