This guest post is by Dewey L. Crepeau, an adoption attorney and author.
If you’re thinking about adopting a newborn or an infant, you probably know that the birth mother will have to consent to the adoption in order for it to be legal and final.
In the adoption world, dealing with the birth mother’s rights is typically when the legal process starts. But what about the birth father?
It’s important to remember that just as the birth mother has rights, the birth father also has rights that must be considered.
Most licensed adoption agencies take the position that he should be involved in the adoption process, if at all possible. There is generally a legal obligation to attempt to contact the birth fathers about an adoption.
In some cases, however, the birth mother may not know who or where the birth father is. In a few states, she may not even be obligated to name him.
So, what do we do when it comes to dealing with a birth father that, for whatever reason, isn’t voluntarily involved in the adoption process?
First, all too often, it’s common to lack the involvement of a birth father. Adoptions often happen without the knowledge and consent of a birth father.
There are several options to deal with a non-consenting birth father whether he is known, unknown, or absent.
Assuming that he can be found, there is an obligation to try to formally notify him. Most often, he must be served with legal papers.
This usually means that a deputy sheriff or other process server must physically deliver the adoption papers to him before the adoption may be heard by the court.
There are also some states that may, in certain circumstances, permit mailing of the papers.
In many instances, it is required to attempt to serve in person before asking the court for permission to serve by “publication” instead of serving in person.
What’s publication? Publication is an alternative means of serving. It involves posting a notice in a newspaper or other publication or location.
What must be in such a notice, where it must appear, and how often it must be published or posted varies from state to state.
If the publication has been properly completed and there is no response from anyone within the allotted time frame, then the adoption may proceed without the involvement or consent of the birth father.
And as one might imagine, it is extremely rare that publication will result in a response of any kind.
Another option in approximately fifty percent of the states is the use of a Putative Father Registry.
The word “putative” in this context generally means an alleged father that is not married to the mother or not legally established by a court to be the father of the child.
The general intent of a state’s Putative Father Registry statute is that if a man has been intimate with a woman, he can ask the state to notify him in the event a child is born and an adoption has commenced.
Although the requirements and effects of a Putative Father Registry vary from state to state, typically unless a putative father has registered, then there may be no legal obligation to notify any man about the adoption through any other means.
However, there may be exceptions that would not permit the use of a Putative Father Registry in some states. For example, the statute may not be totally applicable if the birth mother is married, lied about the pregnancy, etc.
As with other notice requirements to a birth father, it is necessary to follow all applicable statutory requirements in order to rely upon a Putative Father Registry.
How often does a prospective birth father register with a Putative Father Registry?
As there’s very little awareness of it by the general public, not often, despite the fact that the U.S. Supreme Court upheld the constitutionality of a Putative Father Registry in 1983 and there is still controversy over its use.
How do you choose? Whether you’re trying to get the birth father to voluntarily sign the necessary documents, serving him in person or by publication, or relying upon a Putative Father Registry, you should consult with an experienced adoption attorney to review and consider the options in your case.
Sometimes it may be advisable to use one or more methods. And keep in mind, even for an experienced adoption attorney, it can be difficult to decide how to best address the rights of the birth father.
Finally, there is no guarantee that a potential birth father won’t show up later and attempt to assert his rights.
Although this is extremely rare, the consequences can be devastating, particularly if proper procedures were not followed in dealing with the birth father’s rights in the first place.
Here’s the bottom line: Don’t try to figure this out on your own. There are numerous legal requirements, exceptions, and options-within-options.
This brief summary cannot begin to answer all of the questions in a particular case and, of course, laws and practice vary considerably across the country.
Your adoption agency should be knowledgeable, in general, about the various options when you first speak with them. They should also be able to direct you to an experienced attorney for advice on this critical adoption issue.
Please note: This article should not be relied upon for legal or other professional advice. Laws vary from time to time and from state to state.
An article such as this cannot specifically cover the laws and practices in all jurisdictions. This summary is intended as only a general discussion and may not be applicable to the facts of any specific situation.
Seek competent professional advice if you have a question regarding adoption.
Dewey L. Crepeau is the author of Are You Ready to Adopt? An Adoption Insider’s Look from the Other Side of the Desk. He is also the executive director of A Gift of Hope Adoptions and has been an adoption lawyer for more than 30 years.
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