The Birthfather Side Of Adoption

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Birthfathers Have Rights Too

As long as both birthmother and birthfather are of legal age, they are the only two people on the face of the earth that have any legal say on whether a child can be placed for adoption or not.

Too often the father's rights are not fully considered when some adoption plans are made. When a birthmother makes an adoption plan, she basically has three paths she can choose to follow concerning the birthfather side of things. They are:

  1. She can name the birthfather and have him step forward to also sign the adoption papers. This is the simplest and most straightforward path as far as the legal process is concerned.

  2. She can also name the birthfather, but say that she has no idea where he might be. In this circumstance the attorney will search for the father, and if they can locate an address for him, they will send a letter to him stating that he has been named as the father of this child, and this child is being placed for adoption. If he has any objections, he has so many days to step forward.

  3. She can claim birthfather is 'unknown'. The course of this path is determined by the laws of the state in which the baby is born. Most states require that an adoption notice be advertised in newspapers or filed with the Putative Father Registry before the birthfather's rights can be fully terminated.

Many birthmothers choose to go with birthfather 'unknown'. Sometimes we know that it is the truth, and other times we know that it is not. The main reason a birthmother will choose to go with birthfather 'unknown' is that this places the burden of proof onto the birthfather. In order to actually block an adoption, a birthfather must first step forward, hire an attorney, and pay for a paternity test to be done. He must prove paternity first, before he can claim any parental rights.

What is a Putative Father Registry?

The majority of the states in the United States provide this type of a public registry, usually administered by the state's Department of Vital Records, where an unmarried man who believes that he is the father of a child, may register and claim to be the father of this child. In order to register in the Registry, an alleged father must also agree to become financially responsible for the care of the child. A putative father that has properly registered in the registry can usually object to the placement of his child for adoption, if he meets certain requirements that are also imposed on him by state law.

States that provide a Putative Father Registry must advertise a toll free 800 number for future fathers to call and provide the information required by the state for notification of adoption procedures.

Some History

In the decades since 1960, out-of-wedlock births have increased dramatically. While much research on childbearing trends and the characteristics of unwed mothers exists, very little is known about putative fathers, the alleged or reputed father of a child born out-of-wedlock. However, there is an expanding population of putative fathers who wish to play a role in their children's upbringing. Consequently, their legal rights have become increasingly important.

Putative fathers have had fewer rights with regard to their children than either unwed mothers or married parents. Over the past several decades, putative fathers have used the Fourteenth Amendment to challenge the termination of their parental rights when the birth mother relinquishes their child for adoption. Nevertheless, States have almost complete discretion to determine the rights a putative father must receive at proceedings to terminate parental rights or adoption proceedings.

Constitutional Rights

The U.S. Supreme Court has protected a putative father's right to constitutional protection of his parental rights when he has established a substantial relationship with his child. The Court defined a substantial relationship as the existence of a biological link between the child and putative father, and the father's commitment to the responsibilities of parenthood by participating in the child's upbringing.

Several critical concerns, however, have been unresolved by the Court. For instance, when an infant is placed for adoption at birth, the putative father can have no more than a biological link to his child; he never received an opportunity to develop a substantial relationship with his child. The Court has yet to rule on what this putative father must do to protect his parental rights. Consequently, there is a lack of uniformity among States as to the level of protection available to unwed fathers.

Putative Father Registries

In almost all jurisdictions, putative fathers are entitled to notice of proceedings to terminate parental rights or adoption proceedings. States generally require a putative father to register on the putative father registry or acknowledge paternity within a certain time frame in order to receive notice of such proceedings. Approximately 21 States have statutes authorizing the establishment of putative father registries. Several States, however, only mandate by law that a putative father file a notice of his paternity claim within a certain period of time. Failure to register or file may preclude the right to notice of termination or adoption proceedings.

Information Included in Registries

States differ in the information they maintain in their registries. Among the information required by the various States is:

  • Name, address, social security number and date of birth of putative father and birth mother

  • Name and address of any person adjudicated by a court to be the father

  • Child's name and date of birth or expected month and year of birth

  • Registration date

  • Other information deemed necessary

Revocation of and Access to Information

Approximately 15 States allow putative fathers to revoke a notice of intent to claim paternity. Of these States, many require that the putative father submit a signed, notarized written statement. While some States allow revocation of information at anytime, revocation is effective only after the child's birth in some jurisdictions.

Access to information maintained in registries also varies from State to State. Many jurisdictions permit certain persons access to registry records. In general, these are people with a direct interest in a case. Typically, persons entitled to access include:

  • Birth mothers

  • Courts

  • Attorneys

  • Licensed adoption agencies

  • Prospective adoptive parents

  • Any other person upon a court order for good cause shown

  • Registries of other states

Learn about the birth father's side of adoption.

Erik L. Smith has written several excellent articles regarding the rights of birth fathers. Check out the following article for more information on the rights of fathers.

Excluding birthfathers from the adoption process subjects adoptive parents to serious legal and emotional risks. Adoption attorneys have stated that many contested adoptions result from birth fathers feeling angry at being treated as if they didn't exist. Thus, professionals advise that one best avoids disrupted adoptions by treating birth fathers with respect from the outset.

I can vouch for this.

In 1992, my girlfriend became pregnant. Initially shocked and confused, we weren't sure what to do. Realizing neither one of us made much money and that we were not marriage material, we decided on adoption. Because the birthmother wanted to conceal the pregnancy from her parents, she moved across country where she secured a full-time teaching job with good maternity benefits. Before she left, I told her I would respect her privacy, but would like to be included in the adoption process. She agreed. She declined my offers of support money, saying she had enough funds to relocate and a good job to go to. She would call me with updates. Our dating relationship was over.

During the months that followed, I envisioned receiving a letter stating I had been named as the father of a child relinquished for adoption, that the adoption agency wanted my input about the type of couple I would like my child to be placed with, and perhaps my release of relevant medical information.

It never happened. By the due date for the birth, the mother had not called me for a month. When three more weeks went by without word, I feared abortion or baby selling. When another week went by and I could not locate the birthmother, I knew something was amiss.

Frantic and fearful, I borrowed two thousand dollars from friends and family to pay for investigators and long distance phone calls and began searching. Two months later, a lawyer located the adoption file and mailed me the documents. When I read the petition--the unknown father has voluntarily, and with knowledge of the pregnancy, abandoned the mother. I was befuddled. When I saw the publication notice stating that the unknown father had been sued, I became angry. When I saw a father information sheet left almost blank, and a court order stating that the parental rights of the unknown father were forever terminated, I was furious.

What had transpired was obvious. My ex-girlfriend had gone to an adoption agency claiming she did not know who the father was. Making no practical inquiry, the agency presented the scant evidence to a judge who, seeing no problem with it, placed my son with adoptive parents who thought it worth the gamble.

I borrowed ten thousand more dollars from my family to pay for a lawyer, who filed a motion for a new trial, demanding my son be given to me. The agency and the adoptive parents refused, questioning my motivations. Did I really care about the child? Or was I feeling rejected by the mother, or spiteful at being left out?

The answer was all of the above. I had always cared about my son and his future. That was why I had wanted a say in the adoption--because I cared. But I was also angry. Very angry. Being lied about made me angry. Being left out made me angry. Being discarded for the interests of others made me angry. Fit parent and ignoring the parental rights of others were, to me, mutually exclusive. In short, I did not feel my son was born in sin. But I felt he was living amongst it. What happened from then on only served, in my mind, to prove it.

The adoptive parents and the adoption agency filed briefs, alleging that I was mentally ill and, though I was now known, had abandoned the child and birthmother. They hired investigators to interview my friends, employers, co-workers, and acquaintances. At least twenty depositions ensued. I was deposed for twenty-four hours over four days, during which I was grilled on the use of diapers, the prices of baby clothes and formula, my past addresses for ten years, every job I had ever had, the dates I had had sex with the birthmother, my phone records, past girlfriends, past lawsuits, and more. They sought my medical records for the last eight years, and all psychological records for my life, though I could easily prove I had no record of drug abuse, physical violence, mental illness, criminal activity, or sexual predation. It struck me that an ounce of investigation before the placement would have avoided the ton of investigation now.

Nine months into the process, the court appointed an ad litem for my son. The ad litem conceded that my due process had been violated, but that my son should stay with the adoptive parents because so much time had passed, and because I could not support him. In other words, I was supposed to see the light, and recognize that the child's interests demanded he stay with the adoptive parents, that I could not possibly raise my son all by myself, and that the adoptive parents were innocent victims.

Why couldn't I see through my anger and be realistic and reasonable? It was time to start thinking about the child.

It didn't work that way. Why? Because my trust in everyone associated with this adoption was gone. I had respected the birthmother's privacy and refrained from interfering with her life, only to be taken advantage of. I had been dumb in public, but I was not an abandoner. The other parties were wrongly telling my son that the man who brought him into this world had not cared about him. The only one I trusted now was me. If that meant prolonging my torment, then so be it.

But I wasn't the only one tormented. The adoptive parents were devastated. When we met privately to talk things through no more than a few minutes went by before they started crying. He's the center of our lives--it would kill him to take him away. Due apparently to rage, the adoptive mother did not want to see or communicate with the birth mother. But at hearing recesses, the adoptive father, dabbing at tears, would approach her. We love this child very much, and he's such a happy little boy. We're just trying to do what's best for him. The birthmother would stand there feeling guilty and helpless.

At the trial, the adoptive mother arrived clutching a large photograph of my son, apparently a plea for us and the court to consider who really mattered. I appreciated seeing my son's picture. But what I, and likely everyone else, mostly saw were the signs of an impending breakdown on the face of the woman holding it.

The legal expenses were staggering. By the hearing on the motion for new trial, with my son almost a year old, the adoptive parents' attorney fees were a rumored seventy thousand dollars. By trial, they testified to over a hundred thousand dollars. They also had to make expensive plane trips for the hearings, while leaving the child with others. The adoptive father exhausted his vacation benefits. The couple took a second mortgage out on their house. Their court briefs continually mentioned the emotional impact the litigation was having on their home life--their dreams were dashed, they were living in prolonged, constant fear for the child's future, which was complicating their relationship with him. They had waited for years to adopt a child, and finally their dream had come true. Their love for this human being was equal to that of any biological parent. They wanted to end this nightmare as soon as possible.

Attempts at mediation were futile. The adoptive parents and I were brick walls, our self-serving echoes drowning out reason:

  • Can't you see ours is the only home this child has ever known?
  • It's not your home I'm worried about. He's my child.
  • Biology isn't what's important.
  • It was important before you had two miscarriages.
  • We're not trying to keep you out of your son's life.
  • That's not what your court documents say--why didn't the agency investigate more?
  • Why didn't you come forward, you knew more than we did? You sat around during the whole pregnancy doing nothing.
  • He's my son, you know I did not abandon him, now give him back.
  • That wouldn't be in his best interests, he's our son too, can't you see we just want to do what' best for him?
  • And on and on.

On the day of trial, completely out of finances, seeing no end in sight, my son going on two years old, I offered to enter a legal custody agreement with the adoptive parents. The adoption would be set aside and the agency would pay my attorney fees and expenses. The adoptive parents would retain custody, while I got liberal visitation. Anything less and we would go to trial. Everyone accepted the offer. It remains unchanged today.

But why did it have to go that way, when a simple showing of respect and understanding would have given all an informed choice at the outset, a chance to avoid the destructive litigation, abusive investigations, a quarter of a million dollars in legal expenses, and eighteen months of deep grief for fear of losing a child we loved?

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1. From: Carney, E. Birth Fathers: The Forgotten Half of the Story, Adoptive Families 2001.

2. Id., quoting adoption attorney Mark McDermott.

3. In the Interest of Baby Boy C_____. 93-PA-00361, consolidated into 93-PA-01108, Bexar County, Texas. Note: Since this case, Texas, and many other states, enacted putative father registries to prevent natural fathers from disrupting adoptions. The effects of the registries are debatable. Ohio, for instance, has seen a case a year in its appellate courts since its putative father registry was enacted. In almost half of those cases, the natural father, despite not signing the registry, succeeded in overturning the adoption after extended litigation.