Birth Fathers’ Rights: A Legal Guide

Like a potential birth mother, a birth father has parental rights that must be addressed thoroughly and early on in any domestic adoption plan. Each state maintains its own adoption laws, and the type of adoption you choose (agency or independent) will dictate which state’s laws come into play, and how the birth father’s parental rights will be addressed.

To ensure that birth fathers are treated with respect, and afforded all of the rights that exist under applicable state law, prospective adoptive parents must know exactly how the birth father’s parental rights will be addressed.

Sort Through State Law

In an independent adoption, the attorney representing the adoptive parents will address the birth father, his consent, and his right to notice. In an agency adoption, the agency will address these matters.

In an interstate adoption, it’s particularly important to determine which state’s laws will apply, as this varies according to the adoption scenario. For example, adoptive parents living in State A are working with a child-placing agency in State B. The substantive adoption law that applies in this domestic agency placement will be the law of the state where the agency operates and maintains its office. Therefore, in this scenario, the adoption laws that will address the birth father’s parental rights would be those of State B. On the other hand, let’s say the adoptive parents in State A are pursuing an independent adoption, and are in contact with a birth mother in State B. If they file a petition for adoption in State A, where they reside, the parental rights of the birth father would be addressed pursuant to the laws of State A.

Known Birth Fathers

In almost all domestic adoptions involving newborn children, it is prudent and ethical to identify the birth father prior to the child’s birth, and to determine his feelings about the adoption at this stage.

In many cases, the birth mother and birth father will have made their adoption plan together, and both will execute their relinquishment of parental rights or consents to their child’s adoption at the appropriate time. (A few states permit the birth father to execute his consent to the adoption prior to the birth of the child.)

The presumed birth father may be able to provide relevant social and medical history to the adoptive parents. This information, along with the birth mother’s social and medical history, can become an important part of the child’s permanent medical history.

Unknown/Alleged Birth Fathers

Often, the adoptive parents, or the agency placing the child, must rely on the birth mother to identify the birth father. It is important that she provide accurate information about the identity of the birth father.

In rare instances, when the identity of the birth father is unknown, or the birth father’s whereabouts are unknown, notice to the birth father is made through a legal procedure known as posting and publishing. A written notice of the adoption is published in a newspaper of general circulation, in either the jurisdiction where the court sits, or in the area where the birth father was last known to reside; placed on a website; or physically posted in the courthouse.

Publication may occur before or after birth, depending on the applicable court rules. (If no birth father comes forward within the posting period, say, 30 days, his parental rights may be terminated by court order.) An adoption in which the birth father’s parental rights have not been addressed by the time of birth is known as an “at-risk placement.” It is never appropriate to “hide” an adoption from the birth father.

Many states are “notice jurisdictions,” and require that the birth father be given actual notice of the adoption plan prior to completion of the adoption. Notice is often served via a court-issued document known as a “show cause order.” In some states, notice is provided through a document issued by the adoptive parents’ attorney or agency. Upon being served, the birth father is given the opportunity to be heard on the adoption.

States with putative father registries give birth fathers the automatic right to notice. By registering his name and the potential mother’s name, a man establishes his right to receive notice of court proceedings regarding any child who’s born as a result of the relationship, including proposed adoptions or petitions for termination of parental rights. If a man fails to register, he may waive his parental rights or the right to notice.

Some states combine a notice requirement with a putative father registry, and require that the birth father be given notice of the registry and an opportunity to register. Some states require that the birth father take certain steps during the pregnancy, such as providing support for the birth mother, to ensure the right of receiving notice about the adoption. Finally, some states permit the birth mother, as an exercise of her right to privacy, not to identify the birth father at all.

Because every adoption is unique, and state laws vary considerably, and sometimes conflict with each other, it’s smart to work with a lawyer who is knowledgeable about adoption — search AF’s attorney listings on buildingyourfamily.com, or log on to adoptionattorneys.org.

Consider Pre-Adoption Counseling

Birth fathers, just as birth mothers, may request adoption-related counseling, and should be afforded such counseling. A birth father should also receive independent legal counsel if he wishes to consult with an attorney during the adoption process.

When the birth father is a part of the adoption plan, and is working alongside the birth mother, it is important to treat both birth parents equally. The birth father is an indispensable part of your child’s adoption story, and he should be treated with respect and gratitude.