Contested Adoption in Ohio

Published Date Written by Erik L. Smith

In re Application of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572.



The child was born out of wedlock in 1999. The unwed father was on the birth certificate, putting him in the Centralized Paternity Registry as the "legal" father. The unwed couple made an informal visitation agreement. The father later applied with the Child Support Enforcement Agency (CSEA) to establish parentage. CSEA refused to proceed, believing the father was the "legal" father via the birth certificate. So the father sought to enforce visitation in juvenile court. But the county juvenile court rules required genetic testing to find paternity before visitation could be ordered, so the hearings were postponed.


The mother married another man, who petitioned to adopt the child in probate court, claiming the father's consent was unnecessary under R.C. 3107.07(A) (which applied to established parents) for failing to communicate with the child during the year before the petition was filed. The probate court granted the adoption on that ground.


The Ohio Supreme Court disagreed, holding that where a parenting issue was pending in juvenile court, the probate court must refrain from proceeding with the adoption. Because a mother relying on R.C. 3107.07(A) had to establish paternity, the one-year time period could not run until paternity was judicially established, a matter "unresolved" when the adoption petition was filed.1Pushcar at ¶14. The court restated the Uniform Child Custody Jurisdiction Act (UCCJA)'s "bedrock proposition that once a court of competent jurisdiction has begun the task of deciding the long-term fate of a child, all other courts are to refrain from exercising jurisdiction over that matter."2Pushcar at ¶10.



I disagree with the decision. The law in 1999 made a father a parent if he was on the birth certificate and entered in the central paternity registry.3R.C. 3107.01(G) and 5101.314. Here, only the court rule requiring DNA testing negated paternity. The juvenile rule should have been inapplicable for improperly abridging and modifying a substantive right, violating the separation of powers doctrine. In addition, the Ohio adoption statutes contemplate concurrent jurisdiction, making the UCCJA inapplicable and unpersuasive.

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The Supreme Court has held that two statutes4R.C. 3119.961 and .962. letting a man get relief from an administrative child support order based on mistaken paternity properly created a substantive right.5State ex rel. Loyd v. Lovelady, 108 Ohio St.3d 86, 2006-Ohio-161. Because the statutes addressed a potential injustice, the right was substantive despite the statutes sounding procedural.6Loyd at ¶14. Being substantive, the statute trumped civil court rule 60(B), which required stricter criteria be satisfied to vacate a paternity judgment.


If the right to disestablish paternity is substantive, then the right to establish paternity is substantive. Moreover, judicial policy preferences cannot be used to override valid legislative enactments.7State v. Smorgala (1990), 50 Ohio St.3d 222, 223. Otherwise, courts could effectively repeal statutes.8Id. at 224. That applies to evidence.9Id.


Here, the local court rule required DNA evidence to ensure that the paternity determination would not be subject to later challenge. That was a public policy concern, which should have been left to the legislature. The court rule alone left the mother unable to prove paternity in a timely manner. That was unjust because the parties had presumed previously that the father was a parent. The step-parent was misled into believing that he had to seek termination of the father's rights under the parental statute, rather than the putative father statute. That may have caused him, at least in part, to delay bringing the adoption petition. The juvenile court should have accepted the paternity presumption under the previous law, foregone genetic testing, and ruled on visitation before the adoption petition. Given that the father could have sought a visitation order before he did, the adoption could have proceeded as it did, with the one-year time period under 3107.07(A) invoked just as it was.


Even if the juvenile rule did not violate the separation of powers doctrine by being local, or the issue was waived, the Supreme Court still erred by considering the UCCJA or its "bedrock proposition."


The UCCJA applies only to interstate cases.10R.C. 3127.01(A). The legislature has the sole power to establish the jurisdiction of Ohio courts.11State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 489-490. The Ohio legislature excepted the UCCJA from governing instate adoption proceedings.12R.C. 3127.02. And both the UCCJA and the adoption statutes contemplate the need to decide the long-term fate of children expeditiously.13R.C. 3127.06; In re Adoption of Zschach (1996), 75 Ohio St.3d 648, 651. Thus the adoption statutes control, regardless of the UCCJA.


R.C. 3107.01(H)(3) makes the father's parentage action irrelevant where the adoption petition is filed before the juvenile court establishes parentage. Thus, the legislature contemplated parentage actions and adoption petitions running concurrently, and adoption proceedings being adjudicated first. See In re Adoption of Biddle14(1958), 168 Ohio St. 209, 215. ("a Probate Court has jurisdiction to hear and determine an adoption proceeding relating to a minor child notwithstanding the fact that the custody of such child is within the continuing jurisdiction of a divorce court."); In re Adoption of Stojkov,152002-Ohio-631 (11th Dist.). (the continuing jurisdiction of the juvenile court did not present a jurisdictional bar to adoption proceedings in probate court.)16See also In re A.W., 2005-Ohio-4127 (8th Dist.).

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Instead of following Biddle and Stojkov, the Supreme Court relied on In re Adoption of Asente in deciding the jurisdictional question. But Asente was an interstate adoption. Thus, the UCCJA applied. Because Pushcar was purely an Ohio matter, the adoption statutes, not the UCCJA—or its "bedrock propositions"—governed jurisdiction.


R.C. 3107.01(H)(3) is clear.17Under R.C. 3107.01(H) a father is putative when, as is relevant here, "(3) He has not been determined, prior to the date a petition to adopt the child is filed, to have a parent and child relationship with the child by a court proceeding...[or] an administrative agency proceeding pursuant to [R.C.] 3111.38 to 3111.54...." (Emphasis added). Where a father's parentage is not established by a court or administrative proceeding when an adoption petition is filed, the adoption proceeds under R.C. 3107.07(B), not (A) (Section (B) applies to putative fathers; section (A) applies to legal parents) Holding that the parentage action must be decided first renders 3107.01(H)(3) inoperable because, once the father's parentage is established, he is a legal father, leaving R.C. 3107.07(A) the applicable statute in the adoption.


That result is absurd and contrary to the aims of the adoption statutes. Even if the court's holding should apply to this particular case, requiring a previously-filed parentage action to conclude before an adoption can proceed in all cases only prolongs determining the child's fate. Either the putative father cannot prove paternity and time is wasted, or the father proves paternity and, because the one-year time period cannot apply retroactively, the adoption petition cannot be filed for another year. If the holding in Pushcar still allows R.C. 3107.07(B) to apply to a father after the paternity action concludes, then the parentage action only wastes time because the father will still be judged on his behavior before the child was a month old.18R.C. 3107.07(B) makes a putative father's consent to the adoption unnecessary if he abandoned the mother or failed to support the child. The father must also file with the putative father registry within 30 days after the child's birth.


Because R.C. 3107.01(H)(3) contemplates a hearing on an adoption petition after a putative father files a parentage action, the court's holding, even if just in this particular case, is too broad. The proper procedure where an adoption petition is filed after the parentage action is filed should be to stay the juvenile proceeding and let the adoption case proceed, wherein the putative father can challenge the constitutionality of the putative father statutes as they apply to him.


This decision will cause undue confusion in Ohio adoptions. I predict the Ohio Supreme Court will soon feel compelled to modify it.

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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