Birth Father Rights Regarding Child Adoption

It is important to know and understand that both the biological mother and the biological father have rights concerning their child.  This is the case whether or not the birth father is still involved with the birth mother and even if his name is not on the birth certificate.  In no child adoption can the rights of the biological birth father be ignored.  Even if the birth mother is not sure who the biological father is, the unknown person still has rights which must be addressed.

The legal father of a child is the man a woman is married to even if she has been separated from him.  A putative father, also called the alleged father, is the biological father of a child born out-of-wedlock. The legal father, biological father, or putative father are all considered to be the birth father(s).

If the birth father is actively involved in the adoption, he can make many of the adoption related choices along with the birth mother, including the type of child adoption, such as open or closed child adoption or an agency or private child adoption.  The laws of the state in which the birth mother terminates her rights and the laws of the birth father's state of residence will help define the birth father's rights.

Every U.S. state and territory has a statute providing for the ending (called termination,surrender, or relinquishment) of the parental rights of the birth mother and birth father. Termination of parental rights ends the biological parent-child relationship. Once the relationship has been ended, the child is legally free to be adopted.  Due to the seriousness and permanency of this decision, courts have stringent requirements that must be met regarding making this decision. ChildAdoptionLaws.com will help you to find the requirements of any or all states. You may want to check the laws of the state in which you reside, under the heading of termination, surrender or relinquishment of parental rights.

The information below has been adapted from a Child Welfare Information Gateway PDF article entitled The Rights of Presumed (Putative) Fathers.

The Child Welfare Information Gateway article emphasizes the rights of a birth father. This resource provides basic information about a biological or putative father’s rights, putative father registries, and the types of information generally contained in them.

Constitutional Rights

The U.S. Supreme Court has affirmed the constitutional protection of a putative father's parental rights when he has established a substantial relationship with his child. The Court defined a substantial relationship as the existence of a biological link between the child and putative father, and it defined the father's commitment to the responsibilities of parenthood as participating in the child's upbringing.

Several critical concerns, however, have been unresolved by the Court. For instance, when an infant is placed for adoption at birth, the putative father can have no more than a biological link to his child; he never received an opportunity to develop a substantial relationship with his child. The Court has yet to rule on what this putative father must do to protect his parental rights. Consequently, there is a lack of uniformity among States as to the level of protection available to unwed fathers.

Putative Father Registries

In almost all jurisdictions, putative fathers are entitled to notice of proceedings to terminate parental rights or adoption proceedings. States generally require a putative father to register on the putative father registry or acknowledge paternity within a certain timeframe in order to receive notice of such proceedings.

Approximately 23 States have statutes authorizing the establishment of putative father registries. Several States however, only mandate by law that a putative father file a notice of his paternity claim within a certain period of time. Failure to register or file may preclude the right to notice of termination or adoption proceedings.

Revocation of Claim

Approximately 22 States make provisions in their statutes that allow putative fathers to revoke or rescind a notice of intent to claim paternity. Of these States, approximately 12 allow revocation at any time, while revocation is effective only after the child's birth in Arkansas and Iowa, and Florida only allows revocation at any time prior to the child's birth. Other States limit the right of rescission to 60 days after the paternity claim is submitted or prior to a court proceeding to establish paternity, whichever occurs first. Most States will accept a written, notarized statement for rescission. Washington, however, requires a court proceeding for revocation of a claim.

Access to Information

Access to information maintained in registries also varies from State to State. Many jurisdictions permit certain persons access to registry records. In general, these are people with a direct interest in a case. Typically, persons entitled to access include:

• Birth mothers
• Courts
• Attorneys
• Licensed adoption agencies
• Prospective adoptive parents
• State departments or divisions of social services
• State offices of child support enforcement
• Any other person upon a court order for good cause shown
• Registries of other States

Every State, the District of Columbia, and the U.S. Territories have statutes providing for the termination of parental rights. Termination of parental rights ends the legal parent-child relationship. Once the relationship has been terminated, the child is legally free to be placed for adoption with the objective of securing a more stable, permanent family environment that can meet the child's long-term parenting needs. Birth parents who wish to place their children for adoption may voluntarily relinquish their rights. Your adoption agency can assist you with the voluntary termination of parental rights.

The following has been adapted from the the Child Welfare Information Gateway PDR article entitled Grounds for the Involuntary termination of Parental Rights. 

When addressing whether parental rights should be terminated involuntarily, most States require that a court:

• Determine a parent to be unfit through one or more grounds for termination of the parental relationship
• Determine whether severing the parent-child relationship will be in the child's best interest

Grounds for Termination of Parental Rights

The grounds for termination of parental rights are intended to capture specific circumstances that make it clear that the child cannot safely be returned home because of risk of harm presented by the parent or the inability of the parent to provide for the child's basic needs. Some States spell out factors that constitute grounds for termination of parental rights. Other States use general language. The most common statutory grounds for involuntary termination of parental rights include:

• Severe or chronic abuse or neglect
• Abuse or neglect of other children in the household
• Abandonment
• Long-term mental illness or deficiency of the parent(s)
• Long-term alcohol- or drug- Induced incapacity of the parent(s)
• Failure to support or maintain contact with the child
• Involuntary termination of rights of the parent to another child

Another common ground for termination is a felony conviction of the parent(s) for a crime of violence against the child or another family member, or a conviction for any felony when the term of incarceration is such a length of time as to have a negative impact on the child, and the only available provision of care for the child is foster care.

The Adoption and Safe Families Act (ASFA) also requires State agencies to seek termination of the parent-child relationship when:

• A child has been in foster care for 15 of the most recent 22 months.
• A court has determined:
• A child to be an abandoned infant
• That the parent has committed murder or voluntary manslaughter of another child of the parent; aided, abetted, attempted, conspired, or solicited to commit such a murder or voluntary manslaughter; or committed a felony assault that has resulted in serious bodily injury to the child or another child of the parent

The above factors become grounds for terminating parental rights when reasonable efforts by the State to prevent out-of-home placement or to achieve reunification of the family after placement have failed to correct the conditions and/or parental behaviors that led to State intervention.

Exceptions

Even when there are sufficient grounds for terminating a parent's parental rights, a petition to terminate may not always be required under some circumstances. These circumstances may include:

• The child has been placed under the care of a relative.
• There is a compelling reason to believe that terminating the parent's rights is not in the best interests of the child.
• The parent has not been provided with the services required by the service plan for reunification of the parent with the child.

For more information about the rights of the legal, biological or putative father's rights, please contact us at Adoption Services so that we can help you.