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Birthfathers' Rights

Ask an Attorney, May/June 2006by Diane Michelsen



Q: What should you know about birthfathers' rights before pursuing a domestic adoption?

A: The legal rights of birthfathers are one of the most complicated areas of adoption law. Each state has its own laws, and they vary enough that they conflict with each other. Every adoption involves unique circumstances: Are the father's identity and whereabouts known? Does he know of the pregnancy? Has he taken any action indicating that he wishes custody of the child? The variables of the situation determine which laws come into play and how they affect the parties.

Because of this complexity, and because the birthfather's rights must be addressed in every case, I strongly recommend the services of a qualified adoption attorney (search for one at www.adoptivefamilies.com/search/attorneys.php or www.adoptionattorneys.org).

Most states have created two legal classifications for birthfathers in adoptions cases: marital (also known as "presumed") and non-marital (also known as "alleged") fathers, each with different rights and responsibilities.

The rights of presumed fathers

A man who is married to the birthmother (or who was not divorced from her at least 300 days before the baby's birth) is generally considered the presumed father. This legal presumption would exist even if the marital or presumed father is not the biological father.

An unmarried man may be considered a presumed father if he does everything in his power to "legitimate" the child. This commonly includes taking the child into his home, supporting her, starting a bank account for her, and claiming her as his own. In many states, a man must file a paternity suit in addition to taking such steps. In other states, a single man may attain presumed father status only by winning a court action.

Commonly, a presumed father has the same legal rights as a mother. In most cases, he is entitled to custody, so his parental rights must be terminated before an adoption can take place. Termination may happen by the presumed father's consenting to an adoption or signing a waiver of his rights.

If the presumed father cannot be contacted, most states require notice to be given via publication in a newspaper of general circulation. After sufficient notice, an abandonment action may be brought as long as the presumed father has had no contact with and hasn't supported the child for a specified period of time.

An abandonment action may also be brought against a non-consenting presumed father, as long as he's been given the opportunity to have court-appointed counsel.

But what if the presumed father is not the actual or biological father and has not parented the child? (For example, if the mother had an affair, or had been recently divorced before conception took place.) In most cases, the presumed father must still receive notice, but his consent to the adoption may not be necessary. A court order rebutting the presumption of paternity will suffice.

The rights of alleged fathers

If the birthfather is an alleged or non-marital father, in most states, he is entitled to official notice of the adoption plan. In states with a paternity registry (putative father registry), registration gives a man, at the minimum, an automatic right to notice. A national registry is being proposed, but registry benefits and burdens currently vary greatly by state. An alleged father must generally take legal action, such as a paternity suit, to gain any parental rights.

There are rare instances in which the birthfather is unknown, or the birthmother refuses to disclose his identity. Some states mandate publication, in a newspaper of general circulation, of the mother's name and expected due date (or of the child's birth date). Others permit adoption to proceed without publication but with the caveat that, if a father appears within the statute of limitations, and can make a case for fraud, he would be entitled to contest the adoption in court. For children conceived via anonymous sperm donors, the process of freeing the child for adoption again varies by state. In California, for example, the donor typically has no rights if the insemination was done under a doctor's supervision.

Finally, more than one man may be involved in any birthfather's rights case. A child may have more than one presumed father and any number of alleged fathers. How this gets sorted out depends on the state that is controlling the termination of parental rights.

DIANE MICHELSEN is a California attorney who specializes in adoption and assisted reproduction law. She is a member of the American Academy of Adoption Attorneys.

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