BOCVAROV V. PUFFENBERGER: The Frivolous Claim that a Mother Has a Constitutional Right to Make an Adoption Plan

Published Date Written by Erik L. Smith

July 1, 2010


In Bocvarov v. Puffenburger, [1] a divorced mother is suing the unwed biological father in federal court for objecting to her adoption plan. The mother claims her right to marital privacy prevents the unwed father from challenging the adoption. The claim is frivolous because existing law, which the mother cites, shows that the marital privacy right applies only where the married couple wishes to raise the child jointly. Even then, the right to avoid rebuttal of a husband's paternity is one of legislative policy, not constitutional grant. Because the mother surrendered the child for adoption, and because state law lets an unwed father rebut a legal father's paternity, the mother's claim is frivolous.


The Complaint

The Complaint states that the mother and legal father, the Bocvarovs, surrendered the three-day-old child for adoption in Ohio. [2] The agency placed the child with an Indiana couple who petitioned an Ohio probate court to adopt.  [3]The unwed biological father objected. [4]


The Claim

The mother claims the unwed father's objection violates her constitutional right by trying to disrupt the adoption plan. [5] Allegedly, she and Mr. Bocvarov have the right to privacy as a marital unit relating to decisions about the adoptive placement, as recognized by the U. S. Supreme Court in Michael H. v. Gerald D. [6] citing Michael H. v. Gerald. D. (1989), 491 U.S. 110. The complaint cites seven other Supreme Court cases allegedly supporting the mother's "right of privacy" and "right to make decisions about the adoptive placement of her child."  [7]


The claim is frivolous because, under Michael H., the marital privacy defense to paternity rebuttal applies only where the couple wishes to raise the child jointly. A legal claim unwarranted by existing law and not a good faith attempt to reverse, modify, or extend existing law, or to establish new law is frivolous.[8] Accordingly, attorneys must make reasonable inquiry to determine that their pleadings are well grounded in fact. [9]


The mother's claim is bad faith and not well grounded in fact because the case she uses to support it, Michael H., directly refutes it. In Michael H., the putative father conceived a child with the married mother who lived in California.[10]After the birth, the mother and child lived with the putative father for a prolonged time. [11] But the husband and wife later reconciled and kept the child. [12] The putative father sought to establish paternity, which was denied because California law restricted a putative father's right to rebut a married man's paternity.  [13]


In the U. S. Supreme Court, the putative father argued that his personal relationship with the child gave him a substantive due process right to demonstrate his paternity in an evidentiary hearing. [14] A plurality of the Court held that the putative father's interest in establishing paternity of a child born into someone else's marriage was not a constitutional right, but a matter of state law.[15]


"It is a question of legislative policy and not constitutional law whether California will allow the presumed parenthood of a couple desiring to retain a child conceived within and born into their marriage to be rebutted."[16]


The marital privacy right regarding paternity challenges was limited to situations where the husband and wife wished to raise the child jointly. [17]("[A] limit is imposed by the circumstance that the mother is, at the time of the conception and birth, married to, and cohabitating with, another man, both of whom wish to raise the child as the offspring of their union.") Because the couple in Michael H. wished to raise the child, and state law let them avoid rebuttal of the husband's paternity, the putative father's substantive due process right was not offended. [18]


Bocvarov presents the opposite situation. Unlike the California statute in Michael H., Ohio law let an unwed father rebut the marital paternity presumption. [19] In turn, the couple here did not keep the child, but surrendered him for adoption. [20] In addition, none of the Supreme Court cases cited in the complaint allegedly supporting the mother's right to make adoptive placement decisions involved adoptions of children born in wedlock. [21] Even then, the issue is not whether the mother's privacy right lets her plan an adoption, but whether her privacy right precludes the unwed father from challenging the adoption. [22]


So do other cases. An Oregon Appeals Court held that a "birthmother has no fundamental right under the Constitution to have her child adopted[.]" [23]And the sixth federal circuit held that traditional familial privacy rights do not extend to adoption placement. [24]Even the Court in Roe v. Wade limited a mother's familial privacy right by holding that the State could restrict the right to have an abortion in later pregnancy. [25]


Most egregious are three undisputed facts omitted from the complaint: (1) the Bocvarovs were divorced when they surrendered the child (2) the ex-husband disclaimed his own paternity when consenting to adoption and (3) the unwed father established paternity formailly before the Bocvarov complaint was filed. See In re Adoption of G.V. [26]Thus, when the unwed father objected to the adoption, no marital "unit" existed, the husband had disclaimed his own paternity, and the biological father was seeking a legal tie with the child. In addition, the G.V. court had found the mother's constitutional claim meritless.  [27]Accordingly, current law opposes the mother's claim, which was obvious to the attorney responsible for the complaint.


The mother's claim does not attempt to extend, reverse, or modify existing law because the mother does not argue that any law should be reversed, modified, or extended. She argues only that current law supports her claim. For the same reasons, the mother does not seek to establish new law. Accordingly, the claim that the mother has a constitutional right to make an unopposed adoption plan is frivolous. The claim also unnecessarily duplicates litigation, causing delay, harassment, and needless expense to the unwed father. The court should sanction the attorney responsible for the complaint. 




In late July 2010, the Ohio Supreme Court ruled that the adoption was properly dismissed for being premature. On October 27, 2010, the federal district court dismissed the complaint in this case for lack of subject matter jurisdiction. Bocvarov v. Puffenberger, No. 2:10-CV-39, 2010 U.S. Dist. LEXIS 114176 (S.D. Ohio—E. D.). Under the Rooker-Feldman doctrine, federal district courts lack subject matter jurisdiction over challenges to the constitutionality of judicial acts in state court. Id. at [Sec] II citing 28 U.S.C. § 1257 and Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). In deciding whether the doctrine applies, federal courts focus on whether the source of the alleged injury was the state court's decision or an independent source. Id citing McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir. 2006). In the former case, the federal district court will lack subject matter jurisdiction. Id.


The alleged injury in this case came from the Ohio court's decision, not from an independent source. Although the prospective adoptive parents alleged constitutional violations, the complaint in federal court asserted that the Ohio court ignored the adoption petitoiners’ due process arguments. Id. Specifically, the federal complaint alleged that the injury resulted from the Ohio court finding that the unwed Father was the legal father and that the adoption petition was prematurely filed. Id. That fell within the Rooker-Feldman doctrine because the source of the injury would be the Ohio court's decision to deny the adoption petition. Id. Regarding constitutionality, the complaint contended only that the Ohio court ignored the arguments the prospective adoptive parents made in the adoption case about the Mother's liberty interest in placing her child, and about how the Father's opposition to the adoption disrupted the adoption plan and placement. Id. The complaint therefore did not allege injury from an independent source, but merely appealed the Ohio court's decision in federal court. Id. Thus, the case was dismissed under the Rooker-Feldman doctrine. Id. at [Sec.] III. Frivolity was not an issue.


Case No. 2:10-CV-039 (filed January 14, 2010) (S.D. Ohio--Eastern Div., Columbus). 
Id., Compl. at ¶¶ 9-11.  
Id., Compl. at ¶¶ 12-13. 
Id., Compl. at ¶ 14. 
Id., Compl. at ¶23.  
Id., Compl. at ¶18 
Id., Compl. at ¶17 citing Roe v. Wade (1973), 410 U.S. 113; Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), 505 U.S. 833.; Planned Parenthood of Central Missouri v. Danforth (1976), 428 U.S. 52; Stanley v. Illinois (1972), 405 U.S. 645; Quilloin v. Walcott (1978), 434 U.S. 246; Caban v. Mohammed (1979), 441 U.S. 380; Lehr v. Robertson (1983), 463 U.S. 248. 
Fed. R. Civ. P. 11(b)(2). 
Freeman v. Michigan Dep't of State, 808 F.2d 1174, 1180 (6th Cir. 1987). 
491 U.S. at 110.  
Id. at 114. 
Id. at 115. 
Id. at 115-16 citing Cal. Evid. Code Ann. Sec. 621. 
Id. at 121. 
Id. at 129. 
Id. at 130 and n. 7.  
Id. at 127-29. 
Ohio Rev. Code Ann. § 3111.03. 
Bocvarov, Compl. at ¶¶ 10-11. 
Id., Compl. at ¶ 17 citing Roe v. Wade (1973), 410 U.S. 113; Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), 505 U.S. 833.; Planned Parenthood of Central Missouri v. Danforth (1976), 428 U.S. 52; Stanley v. Illinois (1972), 405 U.S. 645; Quilloin v. Walcott (1978), 434 U.S. 246; Caban v. Mohammed (1979), 441 U.S. 380; Lehr v. Robertson (1983), 463 U.S. 248.  
Bocvarov, Compl. at ¶ 23. Michael H. shows the answer as "no." 
Does 1-7 v. State, 993 P.2d 822, 836 (Ore. Ct. App. 1999).  
Doe v. Sundquist, 2 S.W.3d 919, 926 (Tenn. 1999).  
(1973), 410 U.S. 113, 163-165. 
 2009-Ohio-6338, 2009 Ohio App. LEXIS 5326 (Ohio Ct. App. Lucas county, Nov. 30, 2009) at ¶ 2, discretionary appeal accepted in Ohio Sup. Ct. Case No. 2009-2355.  
Id. at ¶ 25.  

The Ohio Putative Father Registry–the WHAT?

I am a single man. Yet I had been in Ohio for over a year before hearing of the Ohio Putative Father Registry, and then only in a Probate Law class. The professor was covering how a child could be adopted without the birth father's consent. "ORC 3701.061: A man who has sexual intercourse with a woman is on notice that if a child is born as a result and the man is the putative father, the child may be adopted without his consent pursuant to division (B) of section 3107 of the Revised Code." That section required the man sign the Putative Father Registry within thirty days after the birth to get notice of the adoption.


Ohio Putative Father Registry: The Basics

Unwed fathers are entitled to notice of petitions to adopt their biological children. Yet many fathers lose this right by not registering timely with the Ohio putative father registry (PFR).1R.C. 3107.062. Because adoptions are probate proceedings, lawyers practicing juvenile, domestic relations, or traditional probate law may not understand how the Ohio PFR applies.  At initial consultations then, attorneys may omit counseling fathers about the registry and refer them to attorneys with more specialized experience. But the strict registration deadline, and often unknown deadline date, demand that the father register immediately. Thus the attorney should consider counseling the client about the PFR and help him register that day before referring him. This article gives the information needed to do that.

Preventing Your Infant Child From Being Adopted Without Your Consent


Consult an adoption law or family law attorney. Otherwise: An unwed father has no absolute right to veto an adoption. You must take action to preserve your rights. Whether the mother is considering adoption or not, an unwed father should, as soon as possible and preferably before the birth:

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