Ohio Putative Father Registry: The Basics

Print
Published Date Written by Erik L. Smith

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.

 

A putative father is a man named as the father of a child born out of wedlock but for whom paternity has not been established.2ODJFS: Ohio office of Child Support Glossary, http://www.jfs.ohio.gov/Ocs/glossary.stm#P Statutorily, a father is "putative" where he (1) was not married to the mother when the child was conceived or born, (2) has not adopted the child, (3) was not determined before the adoption to be the child's parent3Under R.C. 3111.01 - .18 (parentage) or R.C. 3111.38 - .54 (Request for administrative determination of paternity), or similar proceeding in another state. and (4) has not acknowledged paternity under R.C. 3111.21 to 3111.35 (mutual acknowledgement).4R. C. 3107.01 (H). A putative father must register no later than thirty days after his child's birth to receive notice of the adoption petition.5R. C. 3101.07(B)(1). The deadline is absolute: neither deceit, misrepresentation, nor ignorance of the pregnancy will likely excuse failure to register.6Inferred from R.C. 3107.061; 3107.07(B)(1); In re Cameron, 153 Ohio App.3d 687, 2003-Ohio-4304 (1st Dist.) at ¶2, 24. This has not been tested constitutionally under all circumstances, however. Ignorance of the PFR is no excuse either.7Lehr v. Robertson (1983), 463 U.S. 248, 264. 8Although R.C. 3107.065(B) requires the Department of Job and Family Services to "Establish a campaign to promote awareness of the putative father registry."  The PFR applies to men of all ages.9See In re Adoption of Suvak, 2004-Ohio-536 (3rd Dist.) A man need not confirm a birth or pregnancy to register, and he may register before the birth.10R.C. 3107.061; OAC: 5101:2-48-02(B).

 

Exceptions to Required Registration

The law recognizes a few exceptions to the registration requirement.

 

Developed relationship

Theoretically, a putative father may overcome failure to register by having developed a relationship with the child.11See In re Cameron, 153 Ohio App.3d 687, 2003-Ohio-4304 (1st Dist.). at ¶23-25. What constitutes a developed relationship remains unclear. But it would require a substantial degree of regular support and child-father contact.12Id. at ¶25. A putative father should register regardless.

 

The Interstate Compact

The Interstate Compact on the Placement of Children (ICPC) applies in interstate adoption placements, usually through agencies.13OAC: 5101:2-1-01 "interstate placement." The ICPC requires compliance with the laws of the sending state and with the ICPC.14See In re Lichtenberg 03-LW-0864 (12th) citing American Public Welfare Association, The Interstate Compact on the Placement of Children: Compact Administrators' Manual (1982) at 3.67 (Secretariat Opinion 37 (April 7, 1977)) and id. at 2.2-2.3 (Compact Provisions, An Interpretive Commentary). If the sending state's laws require putative father registration, then the father needs to register there.15Id.; OAC: 5101:2-42-22(C)(2). The ICPC does not apply where the mother leaves the child with a close relative or non-agency guardian in another state.16ICPC Article VIII (a); OAC: 5101:2-1-01 "interstate placement" (2). The ICPC features numerous exceptions and criteria. Thus if the child might be placed outside Ohio, the putative father should register in Ohio and consult an attorney in the other state as well as consult an Ohio attorney.

 

The Indian Child Welfare Act

The Indian Child Welfare Act of 1978 (ICWA)1725 U.S.C. §§ 1901 et seq. applies to Native American children.18Id; Miss. Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30. ICWA requires notice to the Indian child's tribe in an adoption.1925 U.S.C. § 1911(a) and 1912(a). ICWA does not require putative father registration. But because proving tribal membership requires showing more than just "Indian ancestry,"2025 U.S.C. § 1911; See Miss. Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30. putative fathers should register with the Ohio PFR. Fathers whose children are of Native American descent should know ICWA exists and that it might apply.

 

Paternity adjudication

A man adjudicated as the father before the adoption petition is filed need not register with the PFR.21R.C. 3107.01(H)(3); R.C. Chapter 3111 (parentage); See In re Adoption of Baby Boy Brooks (2000), 136 Ohio App.3d 824, 829 (PFR registration was unnecessary because the father judicially established parenthood before the adoption petition was filed. But paternity must be judicially established. Merely filing a paternity complaint before the adoption petition is filed does not eliminate the need to register.22See In re Snavely 00-LW-4739 (2nd).

 

Implications

PFRs do not apply between states

Registration in Ohio will likely have no effect outside Ohio, except in Interstate Compact Placements. Conversely, registration in another state's registry, by itself, has no effect in Ohio.23R. C. 3107.07(B)(1); See In re Lichtenberg 03-LW-0864 (12th). Thus if the mother may leave Ohio, the father should register in Ohio and consult an attorney in the other state. About half of the states have PFRs. Consult the National Directory of Putative Father Registries to locate PFRs.24 Available at http://www.eriksmith.org or http://adoption.about.com.

 

PFR records are searchable outside the adoption context

Putative father registrations are not public records.25R. C. 149.43(A)(1)(e). Only the mother, and the adoption agency or attorney arranging the adoption, may search the PFR at any time.26R. C. 3107.063. The statute does not state that an adoption petition need be filed before the mother or attorney can search the PFR. A support enforcement agency can also search the PFR to locate fathers to enforce child support or alimony obligations.27R. C. 3111.69; 3115.03(G).

 

Registration concerns only notice

Registration does not give the putative father a right to veto the adoption, but only a conditional right to notice of the adoption petition. The registry need not be searched if the mother was married when the child was conceived or born, the child has a judicially declared or adoptive father, or the juvenile court has granted permanent custody to a public children services agency.28R.C. 3107.064(B). Consequently, the father should register and pursue paternity adjudication if possible. If parental rights have been terminated in Juvenile Court, the father will likely need to overcome that judgment in Juvenile Court to attack the adoption petition successfully in Probate Court.29See In re Cameron, 153 Ohio App.3d 687, 2003-Ohio-4304 (1st Dist.) at ¶5. This applies even if the father did not receive valid notice of the juvenile proceeding.30Id.

 

After receiving notice of the adoption petition, the father must still object to the adoption within 14 days, establish paternity, and provide evidence that he did not willingly abandon the mother or fail to support the child.31R.C. 3107.07(B)(2) and (K); In re Adoption of Vest 01-LW-0846 (10th); In re Adoption of Baby F. 2004-Ohio-1871 (10th Dist.). Thus, though registering helps show responsibility and interest, it is not enough.32See In re Baby F. 2004-Ohio-1871 (10th Dist.) at ¶10, 14. The father must also honestly try to send support money to, and communicate with, the mother during the pregnancy and before the child is placed with the petitioner to have a say in the adoption. In sum, registration does not give one an absolute or superior right to notice of an adoption petition, but some right to notice while providing some evidence of interest.

 

The Deserted Child Act

The deserted child act lets any parent, married or unmarried, surrender their unharmed three-day-old or younger infant at hospitals, fire stations, or police departments anonymously.33R.C. 2151.3515 - .3530. Anonymity makes PFR search impossible. A search is not required anyway because the proceeding is juvenile.34R.C. 3107.064(B)(5). Temporary custody is immediate35OAC: 5101:2-42-04(C)(2). and a petition for permanent custody is essentially mandatory.36OAC: 5101:2-42-04(D); OAC: 5101:2-42-95(A)(2). To assert his rights, the father must speculate that his newborn was deserted in Ohio, pay for DNA testing, and hope for a match.37R.C. 2151.3528.

 

Effect of Being Listed on the Birth Certificate

The law is ambiguous about the status of an unwed father listed on the birth certificate. The legislature removed that father from R.C. 3107.06 as one whose consent was needed in voluntary surrenders.38Compare former and current R.C. 3107.06(G). And R. C. 3107.01 (H) does not specifically exempt fathers listed on the birth certificate from putative status. Yet the second district found a father to be putative specifically because he had not signed the birth certificate.39In re Adoption of Coppersmith (2001), 145 Ohio App.3d 141, 145. ("Because Shane was not recorded on the birth certificate as the child's father, he was a putative father.") And the Administrative Code states that a father not named on the birth certificate of a child born to a single mother, and who has not acknowledged paternity under R.C. Chapter 3111 or been declared a parent by a court, has no rights in a voluntary surrender unless he has registered with the PFR.40OAC: 5101:2-48-02(I). In addition, signing the birth certificate may result in that man's entry in the Centralized Paternity Registry as the child's legal father for child support enforcement purposes. See In re Application of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572 at par. 1. To be safe, fathers listed on the birth certificate should register with the PFR. 

 

How to Register

Obtain the "Registration Form for Fathers" by fax, mail, or personally from the Ohio Putative Father Registry; 255 East Main St., 3rd Floor; Columbus, OH 43215-5222. Tel: 1-888-313-3100 or (614) 728-9659. Forms are also available from Children's Services or private adoption agencies.41OAC: 5101:2-48-02(B). The form must be notarized, but filing is free. Submit the completed form personally or mail (not by fax) to the registry office. Keep copies.

 

The registrant should list all names the mother may use (maiden name, former married name, nicknames, etc.) including spelling alternatives, on the registration form.42R.C. 3107.063. (The registry is searched primarily by the mother's name.) The same applies when listing the father's name.

 

Updates

Standing to be heard on the child's best interest

A non-registered putative father probably lacks standing to participate in a hearing to determine whether adoption serves the child’s best interest. In re Adoption of A.N.L., 2005-Ohio-4239 at par. 57 applying In re Adoption of Zschach (1996), 75 Ohio St.3d 648.

 

Incompetent fathers

Where the legal guardian of an incompetent parent does not respond in writing to a request for consent to adoption within 30 days, the parent's consent is not required. R. C. 3107.07(G). The guardian's letter to the prospective adoption petitioners that the incompetent father's guardian would not consent to the adoption at that time and would object to any future adoption petition met those requirements. The PFR applies equally to incompetent as to competent putative fathers. See In re Adoption of Law, 2006-Ohio-600 (3rd Dist.)

 

The Service Members' Civil Relief Act (SCRA)

The period of a soldier's military service is not included in computing any period limited by law for bringing any action or proceeding in any governmental agency by or against him. 50 U.S.C. Appx. sec. 526(a), (formerly sec. 525 of the "Soldiers' and Sailors' Civil Relief Act"). Thus, the SCRA may extend the deadline for filing with the PFR where the father was on active military duty before the registration deadline. But this is not for certain, as sec. 526(a) does not apply to unvested rights, which biological fatherhood alone is, and no appellate decision has yet analyzed the application of the SCRA to PFRs. In re Baby Girl, 615 N.Y.S.2d 800, 802 (A.D. 4 Dept. 1994). Still, one state court ruled that Section 526(a) applies to any statute of limitation, condition precedent, or circumstance necessary to create a right. Calderon v. City of New York, 55 N.Y.S.2d 674, 675; see also Stutz v. Guardian Cab Corp., 74 N.Y.S.2d 818, 822. The PFR arguably fits that criteria, too.

 

The SCRA probably does not relieve the father of his duty to send support to the mother and child during the pregnancy where his military service does not truly prevent that. See In re Baby Girl, above. And the doctrines of laches and absurd results may defeat a claim under section 526(a). Deering v. United States (1980), 620 F.2d 242; Detweiler v. Pena, 38 F.3d 591 (D.C. Cir. 1994); Taylor v. North Carolina Dept. of Transportation, 357 S.E.2d 439 (N.C.App. 1987).

 

Effect of Pre-Petition Parentage Action

In 2006, the Ohio Supreme Court held that where a parenting issue was pending in juvenile court, the probate court must refrain from proceeding with the adoption until parentage was resolved. In re Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572. It seems unlikely that the probate court can treat the father as putative in the adoption proceeding after the juvenile court establishes parentage. Similarly, the juvenile court should not be able to deny the parentage claim solely because an adoption petition was filed after it and the father did not file timely with the PFR.

 

An unwed father can bring a parentage action before the birth. R.C. 3111.04(C). The adoption should be stayed pending full resolution of that parentage action. Pushcar. If parentage is adjudicated, the PFR filing requirement should not apply to the unwed father in the adoption case. Id. Wisest is to file with the PFR anyway.

 

Effect of Being Listed on the Birth Certificate

The name of a father of a child born out of wedlock must be inserted on the birth certificate if he and the mother sign a paternity acknowledgment affidavit before the birth record is sent to the local registrar. R.C. 3705.09(F)(2). That makes the father presumed. See R.C. 3107.01(H)(4); R.C. 3111.31. Thus, the unwed father being entered timely and validly on the birth certificate should relieve him of the PFR requirement. A man can be entered on the birth certificate in that way only where the mother is unwed and no presumed father exists. R.C. 3111.22. Wisest is to file with the PFR anyway.

Published originally in Ohio Lawyer, March/April 2005
Last updated June 2008

 

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

Summary

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:

Disclaimer: The information on the website is not intended to be a source of solicitation or legal advice, the results obtained in any legal matter discussed in any articles or examples are not typical. The information discussed on this website should not be construed as a certain result will occur in a similar situation, the reader should not rely on the information on this site as the sole source of information to make a legal-hiring decision. The reader should not consider the information on this website to be an invitation for an attorney-client relationship. Readers should not act or decline to act based on the content from this site, and should instead contact an attorney or other appropriate professional. Articles and information on this website may discuss law in multiple jurisdictions, as laws and regulations differ from one jurisdiction to another, it is important to discuss your particular situation with an attorney in the jurisdiction where your legal matter exist. Erik Smith does not represent that he has any particular expertise in any area of law. You may email Erik Smith, but to the extent allowed by law those communications shall not be treated as privileged unless Erik Smith represents you, as such do not send confidential information until you have established a formal attorney-client relationship with him. Where applicable on this website, you are informed that we are an interactive computer service that enables access by multiple users and should not be treated as the publisher or speaker of any information provided by another information content provider. Where applicable Copyright ©2021 Erik L Smith