The Government Hiding Children From Fathers: Ohio's "Safe Haven" Law and the Separation of Powers Doctrine

Published Date Written by Erik L. Smith


The DCA Involves State Action

The action complained of in the DCA scenario is the failure of the person receiving the child to make the mother identify herself before accepting the child. That action prevents the court from giving notice to the parents and the father from asserting his rights timely, if ever. The lack of notice is caused by withholding information the court needs to enforce the juvenile rules fully.


The DCA gives the mother the absolute choice to withhold that information. It does so to prevent the father and others from associating her name with the surrender. That forces the father to find the court on his own as if the child really had been discarded in a dumpster. The anonymity right is unique to the DCA. Because the mother withholds the information in the only way she legally can, with promises by the state that no one will hinder her, the statutes encourage her to do the only unique thing the DCA lets her do—stay anonymous in surrendering the infant.


The DCA then demands the hospital worker comply with the mother's wishes. The worker has no discretion or decision-making power, but does exactly what the DCA requires--maintains the mother's anonymity and alerts children's services. The mother therefore does not just choose anonymity, but responds to the state's promise to let her render the court unable to give the father effective notice. As in Peterson, it does not matter that the medical worker might let the mother stay anonymous anyway because the DCA commanded that action.


Defenders of the DCA argue that this still does not constitute state action because the state receives the child and takes necessary steps to insure the child's health and welfare, and that this does not cause a loss of parental rights but merely some difficulty for non-surrendering parents in locating their child. [65] But the medical worker or peace officer does not receive a discarded child. Rather, the worker facilitates a voluntary custody transfer, keeping the mother anonymous while doing so. Anonymity is exactly what causes the court's impotence. The legislature merely calls the procedure "desertion" to rationalize its own involvement.


The state may demand private persons follow strict procedures when involuntarily taking possession of someone else's child. For example, any person taking in a runaway minor must contact children's services or the police within a reasonable time to avoid interfering with the parent's custody.67OHIO REV. CODE ANN. § 2919.23(C). Thus, the state could require a private person receiving a child from the child's abandoning parent to contact children's services. But that does not mean the private person can be forced by statute into maintaining the parent's anonymity and still be considered a private actor regarding the consequences of the anonymity. The state did not cause the abandonment, but the state did command the anonymity once the mother chose that option.


Attorney General's Motion to Dismiss at 5-6 in Smith v. Hayes, above note 4. 

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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