dissenting:
I respectfully dissent from the decision of the majority and would give retroactive effect to the decisions in Stanley v. Illinois (1972), 405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct. 1208, and People ex rel. Slawek v. Covenant Childrens Home (1972), 52 Ill.2d 20, 284 N.E.2d 291. (See generally State ex rel. Lewis v. Lutheran Social Services (1973), 59 Wis.2d 1, 207 N.W.2d 826, where the Wisconsin Supreme Court refused to give Stanley prospective effect only.)
While I share the concern of my colleagues in the majority that applying Stanley and Slawek retroactively would enshroud in uncertainty those adoption decrees entered in conformity with existing law prior to Stanley and Slawek, I do not foresee any great hardship in giving retroactive effect to those decisions. As to those decrees of adoption entered prior to Stanley and Slawek and in conformity with the law as it existed prior to those decisions, only the unwed father who was not given notice could attack the validity of the adoption decree. Furthermore, the adoption decree would be set aside only insofar as it affects the unwed father or persons claiming under him. As provided in section 20 of the Adoption Act (Ill. Rev. Stat. 1973, ch. 4, par. 9.1—20):
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“As to persons over whom the court had jurisdiction or persons claiming under them, it shall be no basis for attack as to the validity of an adoption decree that the court lacked jurisdiction over some other person or persons over whom it should have had jurisdiction. If, upon attack by a person or persons over whom the court lacked jurisdiction, or persons claiming under them, an adoption decree is set aside, it shall be set aside only insofar as it affects such person or persons.”
See also Sullivan v. People ex rel. Heeney (1906), 224 Ill. 468, 79 N.E. 695; In the Estate of Bohn (1923), 308 Ill. 214, 139 N.E. 64.
I agree with the majority that in the instant case the interests of the child are paramount (People ex rel. Edwards v. Livingston (1969), 42 Ill.2d 201, 247 N.E.2d 417) and that the policy of preserving and protecting an established family unit underlies both Stanley and Slawek. For these reasons I would vacate the judgment and remand the cause * * for further consideration in light of Stanley v. Illinois, 405 U.S. 645 (1972), and with due consideration for the completion of the adoption proceedings and the fact that the child has apparently lived with the adoptive family for the intervening period of time.’ ” (People ex rel. Slawek v. Covenant Children's Home (1972), 52 Ill.2d 20, 22, 284 N.E.2d 291, 292; Rothstein v. Lutheran Social Services (1972), 405 U.S. 1051, 92 S.Ct. 1488, 31 L.Ed.2d 786.) In determining custody, the best interests of the child are paramount and the right of a natural parent to the custody of his or her child must yield to the best interests of that child. (Giacopelli v. Florence Crittenton Home (1959), 16 Ill.2d 556, 158 N.E.2d 613.) Furthermore, there is no necessity that the natural parent be found unfit before custody can be awarded to the adoptive parents. (People ex rel. Pace v. Wood (1964), 50 Ill.App.2d 63, 200 N.E.2d 125.) Thus, it is my belief that in the vast majority of cases of this type the best interests of the child would require that the child remain in the custody of the adoptive parents. However, the unwed father should be entitled to an evidentiary hearing. I can foresee the rare case of the unwed father who has been a good and loving father to his child, who for some reason, without knowledge on his part, has been unjustly deprived of the custody of his child. Depending on the facts of each case, there could exist the rare case where it would be in the best interests of the child that custody of the child could be restored to the unwed father. At the very least the unwed father is entitled to an evidentiary hearing.
For the above reasons I would vacate the judgment of the trial court and remand the cause for a hearing.