Every expectant parent, regardless of gender, starts out with the same legal rights and responsibilities. Mothers and fathers have a fundamental right when it comes to directing the upbringing of their children, a right that includes educational choices and (within reasonable bounds) caregiving decisions. Parents share these rights, and also share legal responsibilities to their children, most importantly a duty to care for and protect their kids.
A Father’s Rights In Adoption
If parents, on the other hand, feel that they cannot adequately care for a child, they have the right to “terminate” their parental rights, and thereby discharge their parental duties. Usually, this right comes into play when one or both parents intend to place their child for adoption, although courts can also sever the legal relationship between a parent and child if they think it’s in the child’s best interests.
On paper, both parents must formally consent to the adoption of their child, and thus the termination of their parental rights. But this can become tricky very quickly – especially for fathers.
Married Fathers & Presumed Paternity
While state laws differ widely, almost every state presumes that men who are married to a child’s biological mother are that child’s legal father.
There’s no paperwork to fill out, or legal red-tape to cut through. Married fathers (and most states also make exceptions for recently-divorced or separated fathers) are imbued with their parental rights as a matter of course. That means a proposed adoption will require formal consent from the father, just as it requires consent from the mother.
These parental rights inhere even for fathers who actively question their own biological relationship to their wife’s child.
Establishing Paternity: Claiming Your Rights As An Unmarried Father
The situation is significantly more complex for fathers who aren’t legally married to the mother of their children. Unmarried fathers have to claim their parental rights explicitly. That’s also true for “putative” fathers who can’t be located, or men who are unaware of their child’s birth. All of these men will have to “establish paternity” in order to secure their parental rights, be bound to their parental duties and either consent or object to their child’s adoption.
Acknowledging Paternity At The Hospital
Establishing paternity can be simple. If the father is present at his child’s birth, he can sign a legal document “acknowledging” his paternity. Usually, a nurse at the hospital can help with this. Some states require mothers to sign this form as well, which can be difficult or impossible if the father’s paternity is contested.
If the document can be signed, however, an unmarried father gains all of his parental rights, including the right to object to an adoption. Adding the father’s name to a child’s birth certificate has the same effect in most states, and all states allow a father’s name to be retroactively added to a birth certificate.
Gaining Limited Rights Through A Registry
If that’s not possible, 25 states have established “putative father registries,” where unmarried fathers can acknowledge their paternity voluntarily. This doesn’t end the dispute, or establish a legal parent-child relationship. Instead, being listed on a registry gives you the right to be informed of developments that could affect your child’s legal status, like petitions for adoption filed by the mother. In a few states, acknowledging paternity like this also grants “putative” fathers the right to visitations with their child.
Going To Court
But to truly establish a legal parent-child relationship, and thus contest a proposed adoption, most unmarried fathers will have to file a lawsuit in Family Court. Most states now rely on genetic testing to establish a biological relationship between father and child, and consider the results of that testing sufficient to establish a legal parental relationship. Success in court means a father gains the right to consent or object to an adoption.
When The Father Can’t Be Found
Any reputable adoption agency will make an attempt to locate a child’s father before beginning proceedings that could result in the child’s placement. This is, after all, a major major decision, and only the most unscrupulous agency would want to leave a father out of the loop. If a birth father can be located, then copies of relevant court documents will be sent to him. That’s required by most state laws. When a father can’t be located, most adoption agencies will take out ads in local newspapers, hoping to broadcast the fact of a proposed adoption.
The idea here is to give biological fathers the opportunity to establish their paternity in cases when it isn’t presumed by the court. But if a father fails to establish paternity, state courts have extremely wide discretion in determining the legal status of a child – including approving an adoption.
Fathers can intervene, even after an adoption is finalized, and claim their parental rights over a child, but most states will look for evidence that a father was committed to rearing their biological child before any custody dispute arose.
Maxine Chalker, MSW LSW is the executive director of Adoptions From The Heart (AFTH), one of the East Coast’s largest private placement agencies. An adoptee herself, Maxine founded AFTH in order to promote a more “humane” approach to adoption, one that would emphasize open communication between all members of the adoption triad: children, expectant parents and prospective adoptive parents.