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Abstract

This case note examines the family court's decision in In re Kenneth M., 87 Misc. 2d 295, 383 N.Y.S.2d 1005 (Family Ct. 1976) where the unwed father received neither notice of the pending adoption proceeding nor an opportunity to be heard concerning his child's best interest. The case note discusses the changes in the law as to unwed fathers, through the United States Supreme Court's decision in Stanley v. Illinois, 405 U.S. 645 (1972), holding that all parents were entitled to a hearing on their fitness before their children are removed from their custody and calling for an individualized approach. The case note further analyzes the three issues the decision does not answer, such as whether the relationship of unwed fathers to their children involved a fundamental right. The case note then discusses the New York Court of Appeals' decision in In re Malpica-Orsini, which ignored the individualized approach mandated by the Supreme Court in Stanely and focused on the overriding public concern. The case note concludes by suggesting that the court in Kenneth M. neglected to pay attention to Stanley's emphasis on the individualized approach and finds that Kenneth M. presumably makes cohabitation a prerequisite for an unwed father to be required noticed and a hearing. The case note calls for the individualized approach mandated in Stanley to balance the interests of unwed fathers and children born out-of-wedlock.

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