Although adopting parents want to adopt with as little uncertainty as possible, they cannot eliminate it entirely. Paternity and addressing birth father rights is often a source of uncertainty.
At one end of the spectrum is a married expectant woman whose husband, as the only possible birth father, intends to consent. At the other end is an expectant woman who claims to know the birth father, yet refuses to disclose his name because “he will not be cooperative.” Other risk factors include rape not reported to the police, one-night stands, married women whose husband is not the father, and named fathers who cannot be located. One’s assessment of adoption risk is always, of course, affected by the truthfulness of the expectant woman.
To help identify and manage the uncertainties related to birth fathers, adopting parents are best served by working toward answering questions such as:
- Can or will the birth mother identify the birth father?
- If he can be identified, can he be located?
- What is his position on the adoption?
- Will he consent?
- Will he deny that he is the birth father?
- Will he express an interest in parenting the child himself or in having his parents take custody of the child?
Expectant fathers start out with the same legal rights as expectant mothers. They have a right to parent their child and a right to object to an adoption of their child. Adoption law has processes for establishing and terminating a birth father’s parenting rights, but the law does not eliminate all uncertainly. Furthermore, state adoption laws differ, sometimes materially, in terms of requirements and processes for providing birth fathers with a formal notice of a planned adoption and in terms of birth father rights to object to the adoption.
After adopting parents determine the facts surrounding paternity, they then need to determine which state laws will apply:
- Where will the baby be born?
- Where will the placement decision be made?
- Where do the adopting parents live or where will the adoption be filed?
The applicable laws can make a significant difference in assessing the risk and resolving paternity problems. For example, some states condition birth father rights on birth fathers accepting financial responsibility for the child and expressing interest in becoming a father “pre-birth.” Other states have “paternity registry” laws that require birth fathers to register their name within a certain time fame or risk forfeiting whatever rights they might have been able to claim.
If there is a possible birth father whose rights are intact, state law may require diligent efforts to locate and serve him. If personal service of the birth father is impossible or if the birth father’s name is not known, then service by publication or by posting to the Internet may be required. If it is claimed that a birth father is unknown, then affidavits to that effect may be required.
If a birth father is identified he may need to be contacted or served. Once contacted or served he can:
- cooperate and consent
- ignore the notice, thereby waiving his parental rights
- object and potentially seek a paternity test (the response to a request for a paternity test varies by state).
A contested adoption occurs when an objecting birth father is legally entitled to claim parental rights, but the adoption can be granted if the birth father is unfit to parent the child. The outcome will turn on when the birth father objected, the particular facts of the case, and the applicable laws. Sometimes state law will not permit an adoption to proceed if a “fit” birth father objects. Even if an adoption is legally possible, few adopting parents wish to undertake expensive and lengthy litigation that they might not win. If the adoption does not occur, the birth father may obtain custody or the birth mother will reclaim the child (a custody contest between the birth mother and birth father may ensue).
The reality is that there are many women who really do not know who or where the birth father is. There are also women who know who the birth father is, but say what needs to be said so that he does not become involved. There are, of course, nightmare situations that grab the media’s attention, such as the consenting birth mother who, after claiming that the birth father was unknown, suddenly re-appears after a few months now married to the birth father and seeking “their child back.”
It is important to remember that birth fathers rarely thwart adoptions. Either the birth fathers consent, they are served with notice and either consent or do not bother to respond, or unknown birth fathers or birth fathers who cannot be found do not appear after notice is published or mailed to a last known address.
From the adopting parent’s standpoint, what needs to be stressed is the need to get as much information as early as possible. From there, one can obtain professional help to assess the risks based on careful analysis of the law and facts.
Harvey Schweitzer practices law in Maryland and the District of Columbia. His practice focuses on children’s issues such as adoption, foster care, and child abuse, as well as providing representation to social workers and child-serving agencies in areas such as best practices, risk management, and licensing. Mr. Schweitzer is a Fellow of the Academy of Adoption and Assisted Reproduction Attorneys. You can e-mail him at firstname.lastname@example.org or visit his website at www.schweitzerlaw.net.