John J. v. Garrett S.

The issue presented by this appeal is whether an unwed father who could have been, but was not, charged with misdemeanor unlawful sexual intercourse, can for this reason alone be denied the right to withhold his consent to his child’s adoption. Based on its interpretation of a footnote in Adoption of Kelsey S. (1992) 1 Cal.4th 816 [ 4 Cal.Rptr.2d 615 , 823 P.2d 1216 ], the trial court concluded that the father, who was 18 when he impregnated the then 16-year-old mother, should not profit by the commission of this uncharged crime. Accordingly, the court determined that the *541 father was not entitled to either a custodial preference or equal protection of the law. However, the trial court misconstrued the authority it relied on.

The Adoption of Kelsey S. footnote does not disqualify this unwed father from demonstrating a constitutional right to preserve his opportunity to develop a parental relationship with his child. Rather, the tone of . the Kelsey S. footnote indicates that the court’s unwillingness to afford constitutional protection to a father whose child is conceived as a result of nonconsensual sexual intercourse refers to forcible rape, not voluntary unlawful…