The statute's provisions expressly apply to parents, whether "divorced," "separated" or "living separate." See E. v. T., 124 N.J.Super. 535, 543, 308 A.2d 41 (Ch.Div. 1973) (citing Stanley v. Illinois, 405 U.S. 645, 92 S.Ct 1208, 31 L.Ed.2d 551 (1972)) (noting that "[d]istinctions affecting the substantial rights of . . . natural parents based upon the illegitimate status of the child have been held to be violative of the due process clause of the Fourteenth Amendment and a denial of equal protection of the law under the Constitution of the United States."). In E. v. T., supra, the defendant-mother surreptitiously removed her two children from New Jersey to Las Vegas.

The New Jersey Superior Court recognizes that "[d]istinctions affecting the substantial rights of either a child or its natural parents based upon the illegitimate status of the child have been held to be violative of the [Constitution]." E v. T, 124 N.J. Super. 535, 543, 308 A.2d 41, 45 (Ch.Div. 1973); see also Matter of Adoption of B, 152 N.J. Super. 546, 549, 378 A.2d 90, 91 (Union Cty.Ct. 1977). The New Jersey statute which allowed an illegitimate child to inherit from its mother but not its father, N.J.Stat.Ann. 3A:4-7 (West 1953), was repealed in 1977 after the New Jersey Superior Court held that where paternity is shown all illegitimate children have the same right to intestate inheritance from their parents as legitimate children.

Since our decision in that case, other jurisdictions have held similarly, considering the natural father of such children to have rights of custody as would a father of legitimate children upon a dissolution of a marriage. ( Brown v. Bray (Fla. 1974), 300 So.2d 668; Marshall v. Stefanides (1973), 17 Md. App. 364, 302 A.2d 693; Orezza v. Ramirez (1973), 19 Ariz. App. 405, 507 P.2d 1017; Sparks v. Phelps (Ore.App. 1975), 540 P.2d 397; Slawek v. Stroh (1974), 62 Wis.2d 295, 215 N.W.2d 9; E. v. T. (1973), 124 N.J. Super. 535, 308 A.2d 41; Cf. In the Matter of Brenda H. (C.P. Cuyahaga County 1973), 66 Ohio Op.2d 178, 305 N.E.2d 815; Turner v. Saka, 90 Nev. 54, 518 P.2d 608.) This is in recognition of the principle that a determination concerning custody should be premised upon a consideration of what would be in the best interests of the children.

The court ruled that "Stanley's interest in retaining custody of his children is cognizable and substantial," and the presumption that an unwed father is an unfit person denied him equal protection. See, also, Rothstein v. Lutheran Social Services (1972), 405 U.S. 1051; E v. T (1973), 124 N. J. Sup. 535, 308 A.2d 41; Forestiere v. Doyle (1973), 30 Conn. Sup. 284, 310 A.2d 607 (distinguishes putative from natural admitted father); Slawek v. Convenant Children's Home (1972), 52 Ill.2d 20, 284 N.E.2d 291; In re Guardianship of Harp (1972), 6 Wn. App. 701, 495 P.2d 1059; Doe v. Dept. of Social Services (1972), 71 Misc.2d 666, 337 N. Y. Supp. 2d 102; Gomez v. Perez (1973), 409 U.S. 535, 93 S. Ct. 872; Ross v. Ross (1973), 126 N. J. Sup. 394, 314 A.2d 623; and In re Brenda H. (C. P. 1973), 305 N.E.2d 815. The Brenda H. case arose out of this very Juvenile Court. Therein, an admitted father who had paid support to his illegitimate daughter gained physical custody after the mother contracted an interracial marriage.

The doctrine of parens patriae relates to the jurisdiction of the chancery courts over private disputes relating to the welfare of children and incompetents. Thus, of the cases cited by the dissent, Fantony v. Fantony, 21 N.J. 525 (1956) and E. v. T., 124 N.J. Super. 535 (Ch.Div. 1973) involved child custody disputes between parents, and In re Hannah Barry, 61 N.J. Eq. 135 (Ch. 1900) and Seaboard By-Products Co. v. Luszcs, 100 N.J.L. 54 (Sup.Ct. 1924), rev'd on other grounds, 101 N.J.L. 170 (E. A. 1925), involved claims on behalf of children to support from private funds. However, none of the cases cited by the dissent, or any other authority we have been able to locate, suggests that the parens patriae doctrine encompasses any affirmative governmental obligation, independent of statute, to furnish support at public expense for any class of its citizens.

The issue pertaining to the retention of the expert is resolved in favor of the cross complainant. Since the report has already been submitted, the removal of the expert at this point in time would be totally non-productive and only further hinder the resolution of the custody matter and is therefore not in the best interest of the child: See Brotman v. Brotman, 137 N.J. Eq. 514 (E. A. 1946); D. v. D., 108 N.J. Super. 149 (Ch.Div. 1969); E. v. T., 124 N.J. Super. 535 (Ch.Div. 1973); S. v. H.M., 111 N.J. Super. 553 (App.Div. 1970); DiBiano v. DiBiano, 105 N.J. Super. 415 (App.Div. 1969); Mayer v. Mayer, 150 N.J. Super. 556 (Ch.Div. 1977). To preserve and protect the child's welfare is the highest calling of the court, E. v. T., supra, 124 N.J. Super. at 540.

States Supreme Court concerning distinctions between parents and their children in the context of legitimacy point convincingly to the conclusion that such distinctions are increasingly disregarded as constitutionally infirm.Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Levy v. Louisiana, 391 U.S. 68, 70-72, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Glona v. American Guar. and Liab. Ins. Co., 391 U.S. 73, 76, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968); Weber v. Aetna Cas. and Sur. Co., 406 U.S. 164, 175-176, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973) (per curiam); Jimenez v. Weinberger, 417 U.S. 628, 632, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974); and more recently, Trimble v. Gordon, 430 U.S. 762, 767-773, 97 S.Ct. 1459, 1464-1466, 52 L.Ed.2d 31, 38-40 (1977); In the Matter of the Guardianship of C., 98 N.J. Super. 474 (J.D.R. Ct. 1967) (custody); R. v. F., 113 N.J. Super. 396 (J.D.R. Ct. 1971) (visitation); E. v. T., 124 N.J. Super. 535 (Ch.Div. 1973) (custody). See also, Miller v. Miller, 504 F.2d 1067 (9 Cir. 1974) ( per curiam) (statute permitting adoption without notice to natural father of illegitimate, unconstitutional); People ex rel. Slawek v. Covenant Children's Home, 52 Ill.2d 20, 284 N.E.2d 291 (Sup.Ct. 1972) (statute precluding father of illegitimate child from asserting right to child and denying custody, unconstitutional); Annotation, "Discrimination on Basis of Illegitimacy as Denial of Constitutional Rights," 38 A.L.R.3d 613 (1971); Annotation, "Right of Putative Father to Custody of Illegitimate Child," 45 A.L.R.3d 216 (1972).

In divorce and child custody cases, for example, our courts exercise parens patriae jurisdiction to protect the best interests of children. Fantony v. Fantony, 21 N.J. 525, 535 (1956); Vannucchi v. Vannucchi, 113 N.J. Super. 40, 46-47 (App.Div. 1971); E. v. T., 124 N.J. Super. 535, 541 (Ch.Div. 1973). The chancery courts also utilize their parens patriae powers when a juvenile has committed a criminal offense, Johnson v. State, 18 N.J. 422, 430 (1955), or when a person has been committed to a psychiatric institution, State inthe Interest of R.G.W., supra, 145 N.J. Super. at 180.

Several courts have now recognized certain rights of the biological father. Courts have held that such a father have equal rights of custody and such fathers have been awarded custody of such children. Vanderlaan v. Vanderlaan, 9 Ill.App.3d 260, 292 N.E.2d 145 (1972); E v. T, 124 N.J.Super. 535, 308 A.2d 41 (1973); Sparks v. Phelps, 22 Or.App. 570, 540 P.2d 397 (1975); David v. Cindy, 565 S.W.2d 803 (Mo.App. 1978). See Schwartz, supra, 36 Ohio St.L.J. at 8.

Apparently, it rendered the decree pursuant to its broad parens patriae jurisdiction, derived from the common law, case law and statutes. Cf. E. v. T., 124 N.J. Super. 535, 308 A.2d 41 (N.J.Super.Ct.Ch.Div. 1973). Of course, a court's parens patriae jurisdiction is not a statutory provision substantially in accordance with the Act.