Unwed Fathers: Preventing Your Infant Child from Being Adopted without Your Consent
An unwed father has no absolute
right to veto an adoption, but must take action to preserve
his right to veto an adoption. Whether mom is considering adoption or not, you should, as soon as possible, preferably before the birth, (1) formally acknowledge paternity, (2) give the mother reasonable and consistent economic support (like paying her medical and child care bills, and sending her money), (3) regularly visit and communicate with the mother and the child, and (4) sign the relevant putative father registries. Being present at the birth and signing the birth certificate also helps. Consult the National Directory of Putative Father registries to locate your state's registry. Before the birth, consult an attorney experienced in adoption about preserving your parental rights. In addition to the advice your lawyer offers, ask the attorney about acknowledging paternity, bringing a paternity action, and getting a court order to keep the child in your state and out of the hands of a third party. Never abuse, threaten, or implicitly threaten mom in any way. Do not rely on mom. (This article does not concern state-initiated adoptions
in child neglect
, dependency, abuse cases, etc.) Specifics
An adoption is a court order making a non-parent a parent of the child. Before the order can be entered, the parental rights of the biological, or previous parent, must be "terminated." In most states, adoptions can proceed with or without an adoption agency. But all adoptions must go through court. When the biological parent objects to the adoption in court, the proceeding becomes a "contested" adoption. Contested adoption proceedings have six general stages:
. The mother relinquishes the child to a placing agency or a private couple.
. The lawyer for the agency or adoptive parents files a "petition" with the court, alleging, typically, that the father has abandoned
the child or not supported the mother. (See Section II for other termination grounds)
. The father receives the petition by certified mail, personal service, or ordinary mail. If the father cannot be located, then, depending on the state's rules, he may be given notice by publication in a newspaper.
. The father files an answer to the petition, wherein he objects to, or asks the court to dismiss, the adoption.
(5) Consent hearing
. In court, the petitioner must prove that the father is unfit, or has otherwise waived or lost his parental rights. If dad prevails, the adoption cannot proceed without his consent. If the petitioner prevails, the court may hold a hearing to determine if the adoption would serve the child's best interests
(6) Best interest hearing
. States vary as to what constitutes child's best interests Generally, courts assess who can provide a more stable and permanent family relationship for the child. The petitioner usually prevails. If so, the court orders the adoption, terminating the father's parental rights and ordering the adoption. If the father prevails, the court denies the petition.
Your goal is to avoid reaching the best interest hearing. You do this in two ways:
(1) doing what you need to do to get notice of the adoption petition (stage three), and
(2) doing what you need to do to be found fit at the consent hearing (stage five)I. Doing what you need to do to get notice of the adoption petition
Your rights about getting notice of an adoption vary depending on whether you are a presumed father or a putative father. A. Difference between "presumed" and "putative" father.
Presumed fathers are men who were married to the mother during the pregnancy or have legally established their paternity before the adoption petition was filed Putative fathers are men who were not married to the mother during the pregnancy and have not established their paternity before the adoption petition was filed. They are alleged biological fathers only. If you are not married to mom, and have not established paternity legally, you are a putative father If you establish paternity after the adoption petition is filed, then you most likely are still a putative father, and the state's putative father laws still apply to you.
Both types of fathers are entitled to notice of an adoption proceeding involving their child before the adoption can proceed. But putative fathers usually must take active measures to receive notice of the adoption. Presumed fathers, however, are usually entitled by law to actual notice of an adoption. In addition, the standard for terminating a presumed father's parental rights in adoption is higher than that for putative fathers. As a putative father then, you need to pursue presumed fatherhood. Obviously, you may lack time to become a presumed father before the adoption petition is filed. Thus, you must pursue your parental rights yourself by doing certain things. Those things vary from state to state Generally you must sign the putative father registry of the state where the petition is ultimately filed--if that state has a registry--and formally acknowledge paternity. B. Putative father registries
Until you establish a legally recognizable relationship with the child, no one, including mom, owes you any absolute duty except to give you notice of an adoption petition after you have made yourself legally entitled to receive that notice. Do not rely on mom. Mom may not be required to tell you her location or the status of her pregnancy. She may not even be required to give your name to the adoption petitioner or the court. For this reason, about half of the states have enacted putative father registries. The registries let adoption petitioners find putative fathers without relying on mothers naming dad. The registries are searched by the mother's name. If you have listed mom's name with yours on the registration form, the search
should reveal a match with your name, and the address needed for giving you notice. But because the registries are not searched under all circumstances, the assurance is not absolute. (See Section I. E) Even if a search finds you, a court will, absent a mutual agreement, require you prove paternity, usually by DNA testing. If your state lacks a putative father registry, the state may still have paternity acknowledgment and registration requirements that make the process function like a registry. Consult an adoption or family law attorney, preferably before the birth, about the consequences of signing a putative father registry and the procedures involved in acknowledging and establishing paternity. There are strict deadlines for signing putative father registries and for filing paternity acknowledgments. C. How to establish paternity
Many states let you fill out an acknowledgment form and file it with a court or appropriate department (e.g. vital statistics; human services). Hospitals often have the forms Other possible locations are your local social or children's services agency, state vital statistics department, courthouses, or adoption agencies. But consult an attorney afterward, or even before, because you need to get all of the details. An attorney may be able to file a paternity suit or "parentage action" which may include a paternity acknowledgment. Your attorney may also be able to seek, if necessary, a restraining order demanding that mom not leave the geographical area and not give the child to someone else. If possible, start doing all this before the birth. If your state has a putative father registry, pursue paternity establishment and sign the registry. D. Finding a state's putative father registry
Consult the National Directory of Putative Father Registries. E-mail me if you cannot find it: email@example.com. You can register in your own state and in other states Registration probably has no effect outside the state in which you register. And beware of any extra requirements. Some states require a registrant file a paternity action or "intent to support/adopt" the child within thirty days of registering. Consult a family law or adoption law attorney about this. You need not be present in the particular state to register. However, obtaining and returning the forms in person is faster. The forms may be available at locations other than the registry office itself. Contact the registry to find out Do not waste too much time relying on the registry offices. And do not rely on them for legal advice. Rely on your lawyer instead. No federal registry existed as February 15, 2004.E. What does signing the registry assure me of?
Putative father registration provides only for notice of an intended adoption. Registration does not make you a fit father or entitled to custody. Also, many states do not require searching the registry if (1) the mother was married during the pregnancy (2) another man signed a paternity acknowledgement (3) the adoption petition was filed in another state, or (4) the child was deserted anonymously. Other search exceptions may exist. Thus, mothers can thwart putative father registration by getting other men to sign paternity acknowledgements, placing their children out of state, signing adoption papers under different names (e.g. maiden name), marrying, or anonymously dumping their children at hospitals. Still, you must register. If you also have your paternity acknowledgment filed, your lawyer may be able to get a court to restrain the mother from relinquishing the child to third parties or from taking the child out of state. You may need to register the acknowledgment in the other state for that state to recognize your registration. Paternity acknowledgments can usually be registered in other states. Consult an attorney about this. Ask your attorney also about whether you need to send mom support money, pay her pregnancy care bills, or pursue visitation to avoid an abandonment claim. If the attorney says you must wait until the child is born, or until you locate mom, get a second attorney's opinion.
Despite what state agencies advertise, putative father registries exist more to preclude you than to include you. Then, even when the adoption petitioner locates you through the registry, the petitioner may still try to terminate your parental rights by claiming you are unfit or did not support the child and mother. Thus, register with your state's Putative father registry and consult an adoption attorney about establishing your paternity and avoiding being found unfit.F. Are putative father registrations confidential?
Somewhat Besides giving putative fathers notice of adoption petitions, agents of the child may be able to search putative father registries to get child support from you or claim inheritance. Many states also require registrants sign paternity acknowledgments, notices to adopt
, or other support intents to effectuate putative father registration At this point, depending on the state's laws, mom may find out about your registration. Some states let mom search the registry before or after an adoption petition is filed. However, putative father records are not normally subject to freedom of information acts. Consult an adoption or family law attorney regarding the consequences and duties regarding signing a state's putative father registry. G. How to find a lawyer
The best ways to find a lawyer, in order, are:
* Ask family members or friends who work in the legal industry or who have dealt with lawyers, if they know a good family or adoption law attorney.
* Go to Martindale.com or lawyer.com and search for lawyers in family or adoption law by geographical area (where the child or pregnant mother is residing). Call three lawyers who look impressive. Don't be surprised if the lawyers you contact refer you to other lawyers.
* Call the bar association of the city, county, or state where the mother lives and ask them to refer you to a family or adoption law attorney.
* Use the yellow pages as a last resort, or you if lack time to do the above. II. How to be found fit at the consent hearing
You will likely be found fit at the consent hearing if, before the adoption petition was filed, you established a legally recognized relationship with the child. Adoption petitions can be filed very soon after the birth. Thus, you establish a recognizable relationship by acknowledging paternity, signing the state's putative father registry if that state has one, reasonably and consistently supporting the mother and the child financially, representing and holding yourself out consistently as the child's father, and doing your best to visit and communicate regularly with the child and the mother. If visiting and supporting the child and mom before the petition is filed is impossible, make a bona fide effort to visit and support anyway. Consult an attorney about the best ways to do this. You may not be able to do all of these things, but honestly try to do as much as you can. The typical grounds for termination of parental rights are: abandonment (including failure to acknowledging paternity or sign the state's putative father registry timely), not supporting the mother or child before and after the pregnancy, endangering the child, mental or physical disability, or a previous termination regarding another child.
If you actually satisfy the state's criteria for becoming a presumed father, it will be much harder for the petitioner to terminate your parental rights. Consult an attorney about how to become a presumed father. To terminate a presumed father, the petitioner must usually show that he abandoned or failed to support the child over a prolonged time (for example, one year), or overtly neglected, endangered, or abused the child. Putative fathers, however, can be terminated because they either did not sign a putative father registry by a certain strict time after the birth, did not acknowledging paternity within days after the birth or before the adoption petition was filed, or did not consistently and reasonably support the mother financially during and after the birth. With all fathers, being incarcerated or having a felony record is not usually enough, in itself, to support termination of parental rights. If you are in jail, you may still preserve your parental rights by sending mom financial support to the best of your ability, signing putative father registries, filing paternity acknowledgments, and bringing paternity actions. Consult an attorney.III. Other IssuesA. How to calculate the child's due date
Normal pregnancies last 38 weeks (265 days) plus or minus one week. Conception can occur on the day of sexual intercourse or up to few days afterward. If you do not recall the date of intercourse, try to figure it out. If there are multiple possible dates, use the earliest. With a calendar, count and mark 265 days ahead. A week on either side of that later date is your probable window for the birth or due date. Do not rely on mom's word. And do not listen to doctors or nurses who tell you to "count forty weeks after the first day of the mother's last period" or something like that, unless it is all you have to go on (e.g. your sex was regular over a prolonged time.) Do all you can to preserve your parental rights as soon as possible, preferably before the birth. From your angle, there are two stages, early and never. B. If you don't know whether the child is biologically yours
Until DNA tests are done, a man never knows the child is his. If there is a decent chance the child is yours, presume it. Ask your attorney if DNA testing can be done before the answer or hearing date, or even before an adoption petition is filed You will probably need to pay for the testing. In many states, being unsure of whether the child is yours is an invalid reason for not filing a paternity statement or signing a putative father registry. If you feel you must rely on mom's word, remember that mom's lies may not excuse you from signing a putative father registry, filing a paternity acknowledgment, or helping support mom financiallyC. If you only suspect that your ex-girlfriend is pregnant or don't know where she is
Consult a family law or adoption law attorney. (See Section I. G.) Many states consider you on notice of an adoption simply because you had sex. Thus, many states let you sign their putative father registries without confirming a pregnancy If a state lacks a putative father registry, the state may consider you to have a duty to investigate whether your ex-girlfriend became pregnant. How exactly one investigates this without violating the mother's privacy, risking a restraining order, or having grandpa shoot you, courts and the adoption gurus who support this notion never say. But consult an attorney to help you determine the potential mother's location. Once you locate mom, consult attorneys in that geographical area Attorneys have investigators who can find her. Try always to get an attorney to hire an investigator, rather than hiring an investigator yourself. Otherwise, act quickly. If your attorney does nothing, contact his state bar association and find another lawyer. D. If I am in favor of the child being adopted, should I just let it go?
No. If you do not answer a petition for adoption, you will be involuntarily terminated, probably on grounds of abandonment You are telling your offspring, on the record, permanently, that you did not care about him/her. You will perpetuate the image of the unwed father as an abandoner There is no such thing as loving abandonment. Also, some states use involuntary termination of parental rights regarding a previous child as grounds for involuntary termination regarding a later child. E. If I consent to an adoption, can I change my mind and get my child back?
Probably not. Biological parents can revoke their "consent" to the adoption before the court orders the adoption (called "finalization"). But revoking consent does not translate to "getting your child back." When a biological parent consents to the adoption, he puts the adoptive parents essentially on equal legal ground with him. Thus, when the bio-parent revokes his consent, most state courts hold a "best interest" hearing. The biological advantage is gone, and dad must now show that he can provide a more stable and permanent family relationship for the child than the prospective adoptive parents can. This is difficult to do, especially if the prospective adoptive parents are married, better off financially than dad, and already have the child in their home. If you change your mind after the court orders the adoption, you may have the added burden of showing you were deceived or under duress when you consented to the adoption.
For that matter, any evidence of indecision you exhibit during the pregnancy will hurt you. It is a permanent double standard. Moms can be confused about whether to place their children for adoption, who their children's fathers are, or whether the dads are "bad guys" this week. For moms, adoptions are "tough, emotional choices." But the law requires dads to be immune to emotions. One excuse for the attitude is that mom cannot be expected to know what to do if she does not know that dad is "fully" committed Who cares that dad is insecure because mom is not fully committed Instead, any indecision, confusion, doubt, anger, or other mixed emotion dad exhibits, however natural, marks him as unstable and insincere, hence one more step toward unfit, and more justification for why mom left him in the first place. F. What if another man is my child's presumed father?
Many states make presumed fatherhood "rebuttable," meaning the putative father can defeat the presumption through evidence--usually DNA. In some states, however, only the presumed father or the mother can rebut the presumption. Also, if you are a putative father, and a presumed father exists, the putative father registry may not be searched. Still, you will probably be required to sign the registry to avoid termination of your parental rights. This is why you must try to become a presumed father. Consult an adoption or family law attorney. G. I fear that if I communicate with mom she will increase her efforts to thwart me.
The fear is real. But don't expect anyone to understand it fully. The best action to take depends on your specific situation. If you fear mom will go to some unknown location if you send support money or express interest in the child, you may want to file the paternity acknowledgment and pursue a restraining order against mom first. However, because state laws regarding deadlines vary, consult an adoption or family law attorney about how to proceed.H. Re-read the summary at the beginning of the article.
© 2004 Erik L. Smith