Not Just a Mother's Decision

Birth fathers have rights that must be dealt with in an adoption. The extent and nature of these rights is handled in a number of ways in different states. The basic constitutional framework was set forth in a 1972 Supreme Court decision ( Stanley v. Illinois). The court ruled that the Constitution requires that a birth father be given notice that he might be the father of a child who is being adopted, and he must also be given an opportunity to be heard in court as to why the adoption should not go forward. This case and several others have also established that a state may set forth different categories of fathers — called "classes" — giving the fathers in some classes greater legal rights to the child than fathers in other classes. The states have been given wide discretion in the application of these rules.

Consent

In virtually all states, a child cannot be adopted without the consent of the birth father if he is or was married to the birth mother within a designated period of time prior to the birth of the child. If the birth parents were not married, some states grant the birth father the same rights if he lived with the birth mother after he became aware of her pregnancy. This is often called by the courts a "veto power over an adoption," because the child cannot be adopted without the birth father"s consent.

On the other hand, if the birth father has never married the birth mother and has never lived with her, many states will not require his consent to the adoption. Instead, the birth father is merely given formal written notice that an adoption of a child that might be his natural child is pending. If he does not then object to the adoption by filing a court action to establish his parental rights within a specified period of time (usually 30 days), his parental rights are automatically terminated, and the adoption can go forward without any further notice to him.

If he does not object to the adoption action within the time allowed, a hearing is held to determine whether the adoption is in the child"s best interest, or whether the child"s best interest is better served by awarding custody to the birth father. In the vast majority of cases, the birth father does not actively oppose the adoption, and even if he does oppose it, he has little chance of convincing a court that the child is better off with him than with a well-qualified adopting couple.

In most states, the trend is toward granting the unmarried birth father rights commensurate with the responsibilities he has assumed for the child during the pregnancy and immediately following the child"s birth. The tendency is to recognize that rights and responsibilities go hand in hand; therefore, if a man has done everything he can to take responsibility for his child but was thwarted from doing so by the mother, the courts are increasingly inclined to recognize his fundamental right to parent the child.

However, in response to several highly publicized cases in which birth fathers blocked adoptions, the courts and the legislatures are taking an increasingly stringent stance that the birth father will not be allowed to block the adoption unless he has acted proactively and promptly to fully assume his parental responsibilities. In most states, an unmarried father will not be allowed to block an adoption of the child, unless he has during the pregnancy taken every reasonable measure to accept his emotional and financial responsibilities toward the child and the mother. At least eight states ( Arizona, California, Florida, Georgia, Kansas , New York, Oklahoma and Wisconsin) have imposed a requirement that the unmarried father must attempt to act responsibly to the child prior to the placement for adoption, if the father is to be allowed to block the child"s adoption.

When he"s MIA

In some cases, either the identity or the whereabouts of the birth father will be unknown. State laws also provide varying methods of dealing with this situation. In most states, some form of notice must be published in the legal advertising section of the newspaper informing all persons claiming to be the natural father of the child of the pending adoption, and informing all such persons of their right to appear in court to oppose the adoption. In other states, such as California, if the identity of the birth father is unknown, the law provides that the court shall terminate the parental rights of the unknown natural father. Likewise, in California, if the birth father"s identity is known but his whereabouts are unknown, and if the adopting parents and their attorney can demonstrate to the court that a thorough and good faith effort was made to locate him, the law allows the court to terminate the parental rights of the birth father.

Regardless of the extent of his parental rights, the birth father is often relieved to see his child adopted. The adoption has the effect of terminating the birth father"s parental obligations as well as his rights. Every state requires a father to support his child to the best of his ability. But if the child is adopted, the birth father has no further legal responsibility to support his child. On the other hand, if the child is not placed for adoption, the birth mother will have the right to sue the birth father for paternity and child support if she chooses. His obligation to support the child will continue until the child marries or reaches 18 (the legal age of adulthood).

Furthermore, if the child is not adopted, in many or most cases the birth mother will become a recipient of some form of welfare. If the birth mother receives any form of welfare, under federal law the district attorney where she resides is required to sue the birth father for paternity and child support, whether she wants the birth father to be sued or not. Under federal law, if the birth father defaults upon his child support obligation, the district attorney is to garnish or attach the birth father"s wages. It is understandable that most birth fathers prefer to see the child adopted.

In many cases, the birth father will want to play an active role in the adoption and will be present when the child is born. If possible, the birth father should be an integral part of the adoption, and care should be exercised to see that he is not overlooked. It is desirable that he receive counseling and participate in the structuring of the adoption with the birth mother. Some birth fathers will not cooperate with an adoption, regardless of how much the adoption is in their own interest. Many fear that even if they sign a form denying paternity and waiving parental rights, this might be construed as some kind of admission that they were involved with the birth mother. It is tragically common for a birth father to ask, "How do I know that I am the father?"

In those instances in which there is some legal or emotional reason to determine paternity conclusively, there are new blood tests available that can establish paternity with an accuracy of over 99.8 percent. These tests were originally developed to assist in determining suitable organ donors. Their usefulness in determining paternity was later discovered. Paternity blood testing is expensive, and only a few places in the country can perform it. But the results are so accurate that if 1,000 men of the same race were chosen at random and tested, only two or fewer of them could be the father of the child. The tests will also indicate whether a particular person is either excluded or not excluded as the father of the child. Paternity blood tests are now admissible evidence in most, if not all, states, with restrictions in some.

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