Preventing Your Infant Child From Being Adopted Without Your Consent

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Published Date Written by Erik L. Smith

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:

 

  1. formally acknowledge paternity,
  2. give the mother reasonable and consistent economic support (like paying pregnancy and child care bills, and sending money),
  3. regularly visit and communicate with the mother and the child, and
  4. sign the applicable putative father registries as indicated in the National Directory of Putative Father Registries.

Before the birth, an unwed father should consult an attorney experienced in adoption about preserving his parental rights. The attorney should be asked for counsel/advice about acknowledging paternity, bringing a paternity action, and getting a court order to keep the child in the father’s state and out of the hands of third parties.

 

It is important that the unwed father abide by the law in order to preserve as many options open to him as possible. Do not abuse or threaten the mother in any way, as these actions will almost certainly jeopardize your rights. Neither should you rely on the mother to provide accurate information or to proactively include you in her decisions. (This article does not encompass state-initiated adoptions in child neglect, dependency, abuse, etc., cases.)

 

Introduction

An adoption is a court order making a non-parent a parent of the child. Before the order can be entered, the parental rights of the biological parent must be “terminated.” In most states, adoptions can proceed with or without an adoption agency, but they must go through the court system.

 

When a biological parent objects to an adoption in court, the proceeding becomes a “contested” adoption. Contested adoption proceedings have six general stages:

 
  1. Relinquishment. The mother relinquishes the child to a placing agency or a private couple.
  2. Petition. The lawyer for the agency or adoptive parents files a “petition” with the court, alleging, typically, that the father has abandoned the child or not supported the mother and child. (See Section II for other termination grounds.)
  3. Notice. The father receives the petition by certified mail, personal service, or ordinary mail. If the father cannot be located, then, depending on the state’s rules, he may be given notice by publication in a newspaper.
  4. Answer. The father files an answer to the petition, wherein he objects to, or asks the court to dismiss, the adoption.
  5. Consent hearing. In court, the petitioner must prove that the father is unfit, or has otherwise waived or lost his parental rights. If the father prevails, the adoption cannot proceed without his consent. If the petitioner prevails, the court may hold a hearing to determine if the adoption would serve the child’s best interests.
  6. Best interest hearing. States vary as to what constitutes child’s best interests. Generally, courts assess who can provide a more stable and permanent family relationship for the child. The petitioner usually prevails. If so, the court orders the adoption, terminating the father’s parental rights and ordering the adoption. If the father prevails, the court denies the petition.

An unwed father’s goal should be to avoid reaching the best interest hearing. He can do this in two ways:

  1. obtain notice of the adoption petition (stage three)
  2. be found fit at the consent hearing (stage five)

 

Obtaining notice of the adoption petition

An unwed father’s rights about getting notice of an adoption vary depending on whether he is a presumed father or a putative father.

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Difference between “presumed” and “putative” father

  • Presumed fathers are men who were married to the mother during the pregnancy or, if not married to the mother, legally established their paternity before the adoption petition was filed.
  • Putative fathers are men who have not established their paternity before the adoption petition was filed. They are alleged biological fathers and nothing else. If the father is not married to the mother and he has not established paternity legally he is a putative father. If he establishes paternity after the adoption petition is filed, then the putative father laws will still likely apply to him.

Both types of fathers are entitled to notice of an adoption proceeding involving their child before the adoption can proceed. But putative fathers usually must take active measures to receive notice of the adoption. Presumed fathers, however, are usually entitled by law to actual notice of an adoption. In addition, the standard for terminating a presumed father’s parental rights in adoption is higher than that for putative fathers. Thus a putative father needs to pursue presumed fatherhood.

 

An unwed father may lack time to become a presumed father before the adoption petition is filed. If so he must pursue his parental rights himself by taking certain steps. These steps vary from state to state. Generally he must sign the putative father registry of the state where the petition is filed (if that state has a registry) and acknowledge paternity. 

 

Putative father registries

Until an unwed father establishes a legally recognizable relationship with the child, no one, including the mother, owes him any absolute duty except to give notice of an adoption petition after he has made himself legally entitled to receive that notice. 

 

An unwed father should never rely on the mother for assistance or information. The mother may not be required to reveal her location or the status of her pregnancy. She may not even be required to give the father’s name to the adoption petitioner or the court.

 

For this reason, about half of the states have enacted putative father registries. The registries let adoption petitioners find putative fathers without relying on mothers volunteering this information. The registries are searched by the mother’s name. If the putative father has listed the mother’s name with his on the registration form, the search should reveal a match with the father’s name and the address needed for giving him notice.

 

But because the registries are not searched under all circumstances, the assurance is not absolute. (See Section I. E) Even if a search finds the putative father, a court will, absent a mutual agreement, require him to prove paternity, usually by DNA testing. If the state lacks a putative father registry, the state may still have paternity acknowledgment and registration requirements that make the process function like a registry. An adoption or family law attorney can provide counsel about the consequences of signing a putative father registry and the procedures involved in acknowledging and establishing paternity. There are strict deadlines for signing putative father registries and for filing paternity acknowledgments.

 

How to establish paternity

Many states let the putative father fill out an acknowledgment form and file it with a court or appropriate department (e.g. vital statistics; human services). Hospitals often have these forms. Other possible locations are the local social or children’s services agency, state vital statistics department, courthouses, and adoption agencies. Regardless, an attorney should still be consulted after or even before submitting any kind of acknowledgement form. An attorney may be able to file a paternity suit or “parentage action” which may include a paternity acknowledgment. The attorney may also be able to seek a restraining order demanding that the mother not leave the geographical area and not give the child to someone else.

 

This process should be started before the birth if possible. Paternity establishment should be pursued regardless of whether the state has a putative father registry.

 

Finding a state's putative father registry

Consult the National Directory of Putative Father Registries. An unwed father can register in multiple states; registration probably has no effect outside the state(s) in which he registers.

 

There may be extra requirements. Some states require a registrant file a paternity action or “intent to support/adopt” the child within thirty days of registering. A family law or adoption law attorney can advise about this. The unwed father need not be present in a particular state to register, although obtaining and returning the forms in person is faster. Registry forms may be available at locations other than the registry office itself. Registrants should not waste too much time relying on the registry offices and should never rely on them for legal advice.

No federal registry existed as February 15, 2004.

 

 

What does signing the registry assure me of?

Putative father registration provides only for notice of an intended adoption. Registration does not make one a fit father or entitled to custody. Many states do not require searching the registry if:

  1. the mother was married during the pregnancy
  2. another man signed a paternity acknowledgement
  3. the adoption petition was filed in another state, or
  4. the child was deserted anonymously

Other search exceptions may exist. Thus, mothers can thwart putative father registration by getting other men to sign paternity acknowledgements, placing their children out of state, signing adoption papers under different names (e.g. maiden name), marrying, or anonymously dumping their children at hospitals.

 

Nevertheless, registration is essential. If a paternity acknowledgment has been filed, a lawyer may be able to get a court to restrain the mother from relinquishing the child to third parties or from taking the child out of state. Registration of paternity may be needed in the other state for that state to recognize the registration. Paternity acknowledgments can usually be registered in other states. An attorney can advise about additional state registration, requirement of financial assistance to the mother, and pursuit of visitation to avoid an abandonment claim. If the attorney advises waiting until the child is born or the mother is located, the father should seek the opinion of a second attorney.

 

Despite what state agencies advertise, putative father registries exist more to preclude fathers than to include them. Even if the adoption petitioner locates the father through the registry, the petitioner may still try to terminate the father’s parental rights by claiming he is unfit or did not support the child and mother. Therefore, the father should both register with his state’s putative father registry and consult an adoption attorney about establishing his paternity and avoiding being found unfit.

 

Are putative father registrations confidential?

The short answer to this is "somewhat". Besides giving putative fathers notice of adoption petitions, agents of the child may be able to search putative father registries to pursue a child support claim or to claim heritance. Many states also require that registrants sign paternity acknowledgments, notices to adopt, or other support intents to effectuate putative father registration. Depending on the state, a mother may be able to learn about the father’s registration. Some states allow the mother to search the registry before or after an adoption petition is filed. Regardless, putative father records are not normally subject to freedom of information acts. An adoption or family law attorney should be consulted regarding the consequences and duties regarding signing a state’s putative father registry.

 

 

How to find a lawyer

The best ways to find a lawyer, in order, are:

  • Ask family members or friends who work in the legal industry or who have dealt with lawyers, if they know a good family or adoption law attorney.
  • Go to Martindale.com or lawyer.com and search for lawyers in family or adoption law by geographical area (where the child or pregnant mother is residing). Call three lawyers who look impressive. Don’t be surprised if the lawyers you contact refer you to other lawyers.
  • Call the bar association of the city, county, or state where the mother lives and ask them to refer you to a family or adoption law attorney.
  • Use the yellow pages as a last resort, or you if lack time to do the above.

 

How to be found fit at the consent hearing

You will likely be found fit at the consent hearing if you established a legally recognized relationship with the child before the adoption petition was filed (adoption petitions can be filed very soon after the birth). To establish a recognizable relationship, an unwed father may:

  • acknowledge paternity, sign the state’s putative father registry if that state has one,
  • reasonably and consistently support the mother and the child financially,
  • represent and hold himself out consistently as the child’s father, and
  • do his best to visit and communicate regularly with the child and the mother

If visiting and supporting the child and mother before the petition is filed is impossible, a bona fide effort to visit and support should be made anyway. You can consult an attorney about the best ways to do this. You may not be able to do all of these things, but you should honestly try to do as much as you can. The typical grounds for termination of parental rights are: abandonment (including failure to acknowledge paternity or sign the state’s putative father registry in a timely manner), failing to support the mother or child before and after the pregnancy, endangering the child, possessing mental or physical disability, or having a previous termination regarding another child.

 

 

If you satisfy the state’s criteria for becoming a presumed father, it will be much harder for the petitioner to terminate your parental rights. To terminate a presumed father, the petitioner must usually show that the father abandoned or failed to support the child over a prolonged time (for example, one year), or that he overtly neglected, endangered, or abused the child. Putative fathers, on the other hand, can be terminated because they either did not sign a putative father registry by a certain strict time after the birth, did not acknowledge paternity within days after the birth or prior to filing the adoption petition, or did not consistently and reasonably support the mother financially during and after the birth. With all fathers, being incarcerated or having a felony record is not usually enough, in itself, to support termination of parental rights. If you are in jail, you may still preserve your parental rights by following the steps outlined above.

 

Other Issues

How to calculate the child’s due date

Normal pregnancies last 38 weeks (265 days) give or take a week. Conception can occur on the day of sexual intercourse or up to few days afterward. If you do not recall the date of intercourse, try to figure it out. If there are multiple possible dates, use the earliest. With a calendar, count and mark 265 days ahead. A week on either side of that later date is your probable window for the birth or due date. Do not rely on the mother’s word. Do not listen to doctors or nurses who tell you to count n weeks after the first day of the mother‘s last period unless it is all you have to go on (e.g. you and the mother had sex regularly over a prolonged time.) Do all you can to preserve your parental rights as soon as possible, preferably before the birth. From your angle, there are two stages, early and never.

 

If you don’t know whether the child is biologically yours

Until DNA tests are done, a man never knows whether the child is his. If there is a decent chance the child is yours, presume it. Ask your attorney if DNA testing can be done before the answer or hearing date, or even before an adoption petition is filed. You will probably need to pay for the testing. In many states, being unsure of whether the child is yours is an invalid reason for not filing a paternity statement or signing a putative father registry. If you feel you must rely on the mother’s word, remember that the mother’s lies may not excuse you from signing a putative father registry, filing a paternity acknowledgment, or helping support mom financially.

 

If you only suspect that your ex-girlfriend is pregnant or don’t know where she is

Consult a family law or adoption law attorney. Many states consider you on notice of an adoption simply because you had sex. Thus, many states let you sign their putative father registries without confirming a pregnancy. If a state lacks a putative father registry, the state may consider you to have a duty to investigate whether your ex-girlfriend became pregnant. 

 

How exactly one investigates this without violating the mother’s privacy, risking a restraining order, or having her father shoot you is unfortunately left unclear by the courts and adoption gurus. Your first step is to consult an attorney to help you determine the potential mother’s location. Once you locate her, consult attorneys in that geographical area. Attorneys employ investigators who can find her. (Try always to get an attorney to hire an investigator, rather than hiring an investigator yourself.) Act quickly. If your attorney does nothing, contact his state bar association and find another lawyer. 

 

If you are in favor of the child being adopted, should you just let it go?

No. If you do not answer a petition for adoption, you will be involuntarily terminated, probably on grounds of abandonment. You are telling your offspring, on the record, permanently, that you did not care about him/her. You will perpetuate the image of the unwed father as an abandoner. There is no such thing as loving abandonment. Also, some states use involuntary termination of parental rights regarding a previous child as grounds for involuntary termination regarding a later child. 

 

If you consent to an adoption, can you change your mind and get your child back?

Probably not. Biological parents can revoke their “consent” to the adoption before the court orders the adoption (called “finalization”). But revoking consent does not equal “getting your child back.” When a biological parent consents to the adoption, he puts the adoptive parents on equal legal ground with him. When the biological parent revokes consent, most state courts hold a “best interest” hearing. The biological advantage is gone, and the father must now show that he can provide a more stable and permanent family relationship for the child than the prospective adoptive parents can. This is difficult to do, especially if the prospective adoptive parents are married, better off financially, and already have custody of the child. If you change your mind after the court orders the adoption, you may have the added burden of showing you were deceived or under duress when you consented to the adoption.

 

 

For that matter, any evidence of indecision you exhibit during the pregnancy will hurt you. It is a permanent double standard. Mothers can be confused about whether to place their children for adoption, who their children’s fathers are, or whether the fathers are bad guys. For mothers, adoptions are recognized as tough, emotional choices. But the law requires fathers to disregard their emotions. Any indecision, confusion, doubt, anger, or other mixed emotion the father exhibits, however natural, marks him as unstable and insincere, hence one more step toward unfit, and more justification for why mom left him in the first place. 

 

What if another man is your child’s presumed father?

Many states make presumed fatherhood “rebuttable,” meaning the putative father can defeat the presumption through evidence—usually DNA. In some states, however, only the presumed father or the mother can rebut the presumption. 

 

Also, if you are a putative father, and a presumed father exists, the putative father registry may not be searched. Still, you will probably be required to sign the registry to avoid termination of your parental rights. This is why you must try to become a presumed father. Consult an adoption or family law attorney.

 

You fear that if you communicate with the mother she will increase her efforts to thwart you

The best action to take depends on your specific situation. If you fear the mother will go to some unknown location if you send support money or express interest in the child, you may want to file the paternity acknowledgment and immediately pursue a restraining order against the mothe. Because state laws regarding deadlines vary, consult an adoption or family law attorney about how to proceed.

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:

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