Duhaime's Law Dictionary


Kelsey S. Father Definition:

(USA) When an unwed father promptly demonstrates a full commitment to his parental responsibilities, he is entitled to recognition of his real parental relationship absent a showing of unfitness.

In 2008, in Re JL, Madam Justice Sandra Margulies of the Court of Appeal of California summarized the so-called Kelsey S. father right, and the case from which it was derived, in these words:

"Kelsey S. was a challenge to the adoption of a newborn child of an unwed mother, which was filed by the child's biological father within two days after the baby's birth. In analyzing the biological father's rights, the Supreme Court began by observing that the (California family law statute) precludes an unwed biological father from achieving presumed father status unless he is able to satisfy (the statute) by taking the child into his home and holding it out as his own. As a result of this statutory structure, the mother of such a child can deny presumed father status to the biological father by giving the baby up for adoption, thereby preventing the father from satisfying (the statutory requirement).

"After extensive discussion, the court concluded that this feature of the Act was irrational for two reasons. First, a good potential father could be denied parental rights by the unilateral decision of the mother, while an unfit mother could have her rights terminated only by statutory procedures. Second, the mother could deny a model biological father presumed father status while permitting another man of dubious ability and intent to achieve presumed father status merely by allowing him to live with the child in her home for a brief period.

"Accordingly, the court held that, notwithstanding (the statute), if an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise—his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent."

"The court emphasized that its decision applied only in narrow circumstances, when an unwed father has sufficiently and timely demonstrated a full commitment to his parental responsibilities.

"In deciding whether a particular biological father qualifies, the court instructed juvenile courts to consider all factors relevant to that determination. The father's conduct both before and after the child's birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate a willingness himself to assume full custody of the child—not merely to block adoption by others. A court should also consider the father's public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child. Although (the statute) makes no provision for a Kelsey S. father in its list of presumptions, a father asserting valid Kelsey S. rights may effectively qualify for presumed father status as the result of his constitutional right to parent, which overrides any contrary statutory direction."

Most family law statutes, circa 2011, now recognize fully the rights of a father whether a child is born within or outside of wedlock; thus increasingly relegating the usefulness of reliance upon the Kelsey S.  principle to the dustbins of the law.

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