Justices to Rule on Unwed Fathers : High Court Will Hear California Case on Child Custody

The Supreme Court, displaying further interest in the rights of unwed fathers, said Monday that it will decide whether an unmarried father had a right to gain custody of a child who had been placed in an adoptive family.

The case, to be heard in the fall, calls on the justices to balance the interests of the child against the rights of parents to have custody of their offspring.

In December, 1981, a San Diego court concluded that it would be in the best interest of a 5-month-old girl whose unwed mother had turned her over to an county adoption agency to be reared by a family that had adopted her.

Passage of Time Cited

The judge stripped the natural father, Edward McNamara, who now lives in La Habra, Calif., of his parental rights. The courts that have heard McNamara’s appeals, including the California Supreme Court, have concluded that although the original court may have been mistaken, the passage of time made it unwise to change custody of the girl.

But McNamara contends that a court cannot take away the child and end his parental rights “solely” because it believes this to be in the child’s interest.

The case is the second that calls upon the Supreme Court to test portions of California law governing families. Last month the justices said they will decide whether a Santa Monica man who claimed to be the father of the child of a married couple had a legal right to have the issue settled in a paternity hearing.

Indiana, Utah Cases

These cases arise at a time when lower courts in Indiana and Utah, apparently clashing with past Supreme Court rulings that say a father may not interfere with a woman’s right to an abortion, have concluded that unwed fathers have a legal right to halt an abortion.

Last week, a state judge in Indiana issued an injunction to prevent an unmarried 18-year-old woman from having an abortion because a 24-year-old man said he was the father and wanted the child. But the woman had an abortion anyway.

In March, a court in Utah also sought unsuccessfully to prevent an abortion based on a legal plea from an unmarried father.

Hasn’t Seen Daughter

McNamara, the unwed father in the California case that the Supreme Court agreed Monday to hear, has not seen his daughter, Katie, since she was an infant. She will be 7 in July.

McNamara, now 41, learned in August, 1981, that a girl had recently been born to a woman he had dated nine months earlier. Although the San Diego woman had put the baby up for adoption, McNamara said he wanted custody.

The judge who ruled against him in December concluded that the baby had “bonded” with the adopting family and that it would be a “detriment” to the child to remove her. However, the judge also found that McNamara could have been a good father to the girl.

Continues Efforts

Through six more years and five more battles in California courts, McNamara has continued to argue that he should have custody.

“I can tell you the wheels of justice move very slowly,” he said Monday. “And time has worked against me in this case.”

But Arlene Prater, a lawyer for San Diego County, said California law properly gave greatest weight to the welfare of the child.

“You don’t have to prove that he is an unfit father,” she said. “The courts here have simply concluded that it would be a detriment to the child to award him custody now.”

A ruling in the case (McNamara vs. County of San Diego, 87-5840) can be expected early next year.

Other Actions

In other actions, the high court:

--Agreed to decide whether payments to the Church of Scientology for services known as “auditing” may be deducted from federal income taxes as charitable contributions. (Hernandez vs. CIR, 87-963.)

--Agreed to decide whether criminal “rap sheets” compiled by the FBI must be released upon request to news reporters under the Freedom of Information Act. (U.S. Department of Justice vs. Reporters Committee, 87-1379.)

--Heard a plea from the U.S. Catholic Conference to dismiss a suit arguing that its support for anti-abortion causes should result in revocation of its tax exemption. The conference, citing First Amendment protections, has refused to turn over internal documents, and faces a $100,000-a-day fine imposed by a District Court judge in New York. In response, lawyers for a pro-abortion group charged that the government had acted illegally by subsidizing the anti-abortion cause through the church’s tax exemption. (U.S. Catholic Conference vs. Abortion Rights Mobilization, 87-416.)

--Rejected an appeal from federal Judge Alcee Hastings of Florida, who is seeking to stop impeachment proceedings against him in the House. The court, without comment, let stand a federal appeals court ruling in Washington that upheld a 1980 judicial reform law under which Hastings has been investigated for misconduct. (Hastings vs. Judicial Conference of the United States, 87-1187.)