What Birth Fathers Don't Know Hurts Everyone

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Excluding birthfathers from the adoption process subjects adoptive parents to serious legal and emotional risks.1 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.2

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.3

What had transpired was obvious. My ex-girlfriend had gone to an adoption agency claiming she did not know who the child's 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 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 concepts. 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, 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 home. 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, and this 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's 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 total legal expenses, and eighteen months of deep grief for fear of losing a child we loved?

Author's Bio

Erik L. Smith holds a master's degree in Psychology. He currently works as a paralegal for the Manring & Farrell law office in Columbus, Ohio. His other articles include, The Ohio Putative Father Registry--The What?, The National Directory of Putative Father Registries, and Midwifery and the Constitution..


1. From: Carney, E. Birth Fathers: The Forgotten Half of the Story, Adoptive Families 2001. www.adoptivefamilies.com/articles.
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.
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