Rosendall v. Ahmed

[812]

Opinion

CHRISTIAN, J.

Tahir Ahmed appeals from a decree by which appellant’s two natural sons were adopted by Paul Alan Rosendall, the boys’ stepfather. The decree was granted despite appellant’s opposition, the court having determined that appellant’s consent was not required by reason of his failure to contribute to his sons’ support for more than one year.

Appellant was divorced from the mother of the children in 1965, by a decree which awarded custody to the mother and directed appellant to pay a total of $150 per month child support. Appellant visited the boys from time to time as he was entitled to do under the decree, but these contacts were tense and infrequent and further visitation was finálly refused by the boys.

On April 22, 1971, appellant wrote to the boys’ mother stating, “I will not bother you with my visitation any more. If my boys ever grew up and wants to see me, I will visit them or they can come and visit me.” With that letter appellant sent $30. In fact, he did thereafter visit sporadically until the boys refused further contact. Between July 31, 1971, and the filing of the petition for adoption on November 10, 1972, appellant made no contributions toward the support of the boys except one payment of $5 and two payments of $15. During the last year only $15 was paid.

Appellant testified that he had many financial obligations and that during the last year before the filing of the petition his earnings were about $550 per month except for certain periods of unemployment, when he drew benefits of $62 per week.

Appellant contends, citing

Sail’er Inn, Inc.

v.

Kirby

(1971) 5 Cal.3d 1 [95 Cal.Rptr. 329, 485 P.2d 529, 46 A.L.R.3d 35], that Civil Code section 224 sets up an unconstitutional discrimination between parents in providing different standards for loss of parental rights by a father than by a mother. Under the statute, “after the custody of any child has, by any judicial decree, been given to the father, and the mother for a period of one year fails-to communicate with such child when able to do so, or been given to the mother, and the father for a period of one year shall willfully fail to pay for the care, support and education of such child when able to do so, then the parent to whom custody has been given alone may consent to such adoption, . . . [F]ailure of [the] father to pay for the care, support and education of such child for . . . one year or