Richard L. Gardner vs. Adele P. Rothman

Massachusetts Supreme Judicial Court1976-04-06

370 Mass. 79

Summary · law.co

Holding. The Probate Court's order denying the mother's motion to dismiss was affirmed, and the case was remanded for further proceedings. An unmarried father may seek and potentially obtain visitation rights with his illegitimate child through equity jurisdiction, with the determination guided by the child's best interests rather than the mother's unfettered discretion.

An unmarried father sought visitation rights with his illegitimate child, whom he had acknowledged as his own and helped support. The mother, with whom the child had lived since the parents separated, moved to dismiss the case, arguing the court lacked jurisdiction and that the father had no enforceable right to visit the child. The Probate Court denied the mother's motion to dismiss.

The court held that Probate Courts possess general equity jurisdiction over matters affecting infants, regardless of legitimacy status, and may therefore consider visitation disputes involving unmarried fathers. The court rejected the mother's claim that she had sole discretion to deny the father visitation. Instead, following the weight of authority in other states, the court recognized that fathers of illegitimate children may be granted visitation rights when such rights serve the best interests of the child. The father's sworn acknowledgment of paternity and his history of financial support and active parenting strengthened his position.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether Probate Courts have jurisdiction to hear visitation disputes involving unmarried fathers and illegitimate children
Whether declaratory relief regarding visitation rights constitutes a justiciable controversy
Whether an unmarried father has enforceable visitation rights or whether the mother has sole discretion

Procedural posture

The Probate Court denied the mother's motion to dismiss the father's complaint seeking visitation rights, the judge reported the matter to the Appeals Court, and the Supreme Judicial Court granted direct appellate review.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Braucher, J.

The acknowledged father of an illegitimate child complains that the mother, with whom the child lives, has refused him visitation rights. The mother’s motion to dismiss the complaint was denied in the Probate Court, and the judge reported the matter to the Appeals Court. We allowed the father’s application for direct appellate review, and we affirm the judge’s order.

The complaint alleges the following facts. The father and mother had an “uninterrupted relationship” from December, 1971, to August, 1973. On April 13,1972, the father executed a sworn “acknowledgement of paternity.” The child was bom on June 6, 1972, resided with the father and mother until August, 1973, and has since resided with the mother. The father has contributed and continues to contribute to the financial support of the child, and actively participated in the child’s care while she lived with both parents. Since January, 1974, however, the mother has refused the father visitation rights. He seeks rights of visitation in the best interests of and consistent with the welfare of the child.

The mother moved to dismiss the complaint on the grounds that (1) the court lacked jurisdiction of the subject matter, (2) the judgment would not terminate the controversy, and (3) the complaint fails to state a claim on which relief can be granted.

1. Jurisdiction. The jurisdiction of the Probate Courts under G. L. c. 209, § 37, to make judgments relative to the care and custody of a minor child whose parents live apart from each other does not extend to the present case, since that section “contemplates the existence of the marital relation between parents.” Heard v. Heard, 323 Mass. 357, 370 (1948). Proceedings under G. L. c. 273, §§ 11-19, are begun by complaint or indictment in the Superior Court or a District Court,- and are not initiated by the putative father. See Commonwealth v. MacKenzie, 368 Mass. 613, 619 n.5 (1975). See also G. L. c. 119, § 23, cl. C (order of Probate Court for responsibility of Department of Public Welfare); G. L. c. 201, § 1 (guardianship). Jurisdiction in the present case rests instead on G. L. c. 215, § 6, first paragraph, conferring general equity jurisdiction on the Probate Courts. See Wood v. Wood, 369 Mass. 665, 668-669 (1976). That jurisdiction extends to the persons and estates of infants, and is not restricted to legitimate children. Baker v. Baker, 81 N.J. Eq. 135, 136-138 (1913). Anonymous v. Anonymous, 56 Misc. 2d 711, 712 (N.Y. Family Ct. 1968). See Bagwell v. Powell, 267 Ala. 19, 20 (1957); Slawek v. Stroh, 62 Wis. 2d 295, 318 (1974); 4 S. Symons, Pomeroy’s Equity Jurisprudence §§ 1304, 1307 (5th ed. 1941).

2. Declaratory relief. The complaint seeks declaratory relief, and the mother asserts that such relief should be denied because it would not terminate the controversy. G. L. c. 231A, §§ 3, 9. We think the judgment will settle the question whether, as the mother contends, visitation by the father rests entirely in her discretion. It is not fatal that circumstances may change and may require subsequent revision of the judgment. Slawek v. Stroh, 62 Wis. 2d 295, 306 (1974). See G. L. c. 231A, § 5. Cf. Green v. Green, 351 Mass. 466, 471-472 (1966); Price v. Price, 341 Mass. 390, 393-394 (1960).

3. Visitation rights. For the proposition that she has unfettered discretion on the issue of parental visits, the mother relies on Wright v. Wright, 2 Mass. 109 (1806). That reliance is misplaced. The court there dealt only with the mother’s right to custody, and Justice Sewall said, “The rights of the putative father are not brought into question by this process.” Id. at 110. The present case seems to be one of first impression in this court.

By the great weight of authority in other States there is judicial power to grant visitation rights to the father of an illegitimate child. Bagwell v. Powell, 267 Ala. 19, 22 (1957). Strong v. Owens, 91 Cal. App. 2d 336, 341 (1949). Forestiere v. Doyle, 310 A.2d 607, 609 (Conn. Supp. 1973). In re One Minor Child, 295 A.2d 727, 728 (Del. 1972). Mixon v. Mize, 198 So. 2d 373, 375 (Fla. App.), cert. denied, 204 So. 2d 211 (Fla. 1967). Taylor v. Taylor, 295 So. 2d 494, 496 (La. App.), cert. denied, 299 So. 2d 799 (La. 1974). Baker v. Baker, 81 N.J. Eq. 135, 136-138 (1913). People ex rel. “Francois” v. “Ivanova,” 14 App. Div. 2d 317, 318 (N.Y. 1961). Ex parte Hendrix, 186 Okla. 712, 713 (1940). Gwiszcz Appeal, 206 Pa. Super. 397 (1965). In re Guardianship of Harp, 6 Wash. App. 701, 706, appeal denied, 80 Wash. 2d 1010 (1972). Slawek v. Stroh, 62 Wis. 2d 295, 304 (1974). See Annot., 15 A.L.R.3d 887 (1967). Contra, DePhillips v. DePhillips, 35 Ill. 2d 154, 157 (1966) (statute). Cf. Stanley v. Illinois, 405 U.S. 645, 648 (1972). The guiding principle is what is in the best interests of the child. Cf. Sloane v. Sloane, 349 Mass. 318, 320 (1965); Welker v. Welker, 325 Mass. 738, 745 (1950); McMahon v. McMahon, 1 Mass. App. Ct. 647, 648-649 (1973). Acknowledgment or adjudication of paternity is not essential, at least when paternity is conceded, as it is here. French v. Catholic Community League, 69 Ohio App. 442, 444 (1942). R. v. F., 113 N.J. Super., 396, 408 (Juv. & Dom. Rel. Ct. 1971). See Taylor v. Taylor, 295 So. 2d 494, 496 (La. App.), cert. denied, 299 So. 2d 799 (La. 1974). Cf. Hammack v. Wise, W.Va. , (1975) .

4. Disposition. The order denying the defendant’s motion to dismiss the complaint is affirmed. The case is remanded to the Probate Court for further proceedings consistent with this opinion.

So ordered.

211 S.E. 2d 118, 120 (1975).