Bolden vs. Does: Eviscerating the parental rights of unwed fathers


The U.S. Supreme Court’s denial of certiorari this year in the case of Bolden v. Does (In re Adoption of J.S.)1 is disappointing. This case presented the Court with a perfect opportunity to reconsider its questionable ruling in Quilloin v. Walcott.2 Instead of availing itself of that opportunity, the Court opted to let stand a Utah Supreme Court ruling that conditioning an unwed father’s retention of parental rights on proof of ability to raise and support a child, while not also imposing the same condition on unwed mothers, does not violate the Equal Protection rights of unwed fathers.

The facts

The pertinent facts were not in dispute. The parents were not married to each other. Father promptly (two weeks before the baby was born) filed a paternity petition in court seeking both an adjudication of paternity and custody rights. He offered to pay the mother’s birthing expenses, and he timely filed a sworn, notarized notice in the putative fathers registry.

The Utah statute, however, also required him to file a separate affidavit asserting his willingness to assume custody and disclosing his childcare plans. Apparently his attorney neglected to advise him of this additional requirement.

While the Father’s paternity/custody petition was pending, Mother placed the child with a couple that wished to adopt, and the couple commenced an adoption proceeding. After receiving notice that the couple intended to adopt his child without his consent, Father moved to intervene. At the same time, he filed the affidavit of childcare plans required by the statute. The lower court, however, held that it was too late, and proceeded to terminate his parental rights so that the adoption could go forward. Father appealed the decision, asserting that the affidavit requirement violated the Fourteenth Amendment He argued, among other things, that since an unwed mother is not required to file such an affidavit in order to preserve her right to oppose an adoption, requiring unwed fathers to do so violates the Equal Protection clause.

The law

In 1972, the U.S. Supreme Court ruled, in Stanley v. Illinois,3 that unwed fathers have constitutionally protected parental rights that are every bit as fundamental as those of unwed mothers. Six years later, however, in Quilloin v. Walcott, supra, the Court narrowed that ruling by limiting its application to only those fathers who demonstrate that they have assumed significant responsibility for the care of their children.

Time for a change

 Quilloin was decided in 1978, at a time when sex role stereotypes permeated every aspect of the American psyche and culture, including jurisprudence. Although some progress toward gender neutralization of custody law was being made, the maternal preference was still an explicit part of the statute and/or case law of every jurisdiction. Most people, including judges, believed that women are simply born with an instinctive desire and ability to raise children, while men are not. To the Quilloin Court, therefore, it made sense to place the burden of proof of willingness and ability to parent on fathers while at the same time giving mothers the benefit of a presumption of willingness and ability to parent.

Judicial rulings are supposed to be based on evidence, not unsupported assumptions. If a state were to require only female candidates to pass physical and psychological tests in order to become police officers, on the basis of an assumption that men – and only men — are born with a protective instinct and naturally superior physical strength, it would clearly be denying women the Equal Protection of the laws. It should be just as clear that state laws requiring only male parents to demonstrate ability to parent in order to retain parental rights violate the Equal Protection clause.

It is truly baffling that judges still cannot, or will not, see that. It’s 2015, folks.

Dissenting opinion

Associate Chief Justice Nehring filed an excellent dissenting opinion in this case. Here are a few excerpts that bear repeating:

“I dissent because even the most minimally ‘searching’ inquiry reveals the impermissible stereotyping at the root of Utah Code section 78B-6-121(3)(b)…. The affidavit requirement reflects a negative stereotype that is commonly wielded against unwed fathers: that they are uninterested in their offspring and ill-suited or incompetent caregivers.”

“Indeed, this stereotype is precisely the flip side of the same generalization that has long been applied to women—i.e., that they are naturally well-suited for the responsibilities of childcare and the home.”

“[T]here is no rational reason to assume that a father’s ability to fulfill the parental role is any less reliable than a mother’s.”


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  1. 2014 Utah 51,  ___ P.3d. ___(2014)
  2. 434 U.S. 246 (1978)
  3. 405 U.S. 645 (1972)