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This case was not handled by our firm. However, if you have any questions regarding this case, or any family law matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.
The most controversial area of practice in adoption law in the past several years has been addressing the rights of unmarried fathers when their children are going to be adopted. Before 1972, these fathers had virtually no legal rights with respect to their children born outside of marriage. In that year, the U.S. Supreme Court in Stanley v. Illinois held for the first time that an unwed father must be given the opportunity to establish that he is entitled to the constitutional right to raise his child.
Following Stanley, the Supreme Court, in a series of cases, further defined the scope of that right. Ultimately, the court concluded that an unmarried biological father, unlike the mother, must take some affirmative step to perfect his rights vis-à-vis his child. This requirement is more popularly known as the “biology plus” doctrine. In many states, the steps such a father can take include filing a paternity action or registering with the putative-father registry. These registries are maintained by the state, and a father can register by way of a postcard or letter indicating that he had sexual intercourse with a particular woman and may be the father of a child born within the viability gestational period. Importantly, the putative father who intends to use the registry must be advised about time frames for filing, since many state registries have short time periods in which one must register.
The purpose of such registries is to give a father an opportunity to assert his rights to the child or consent to the adoption. Once a father registers, he is entitled to notice of any potential adoption action regarding his child. This method of preserving his rights was specifically approved by the Supreme Court in the 1983 decision Lehr v. Robertson. In that case, the birth father consulted an attorney who failed to advise him that filing with the putative-father registry would preserve his rights. He did not file and was denied the chance to veto the adoption. The Supreme Court held that a state was only constitutionally required to provide an unmarried birth father an opportunity to assert his parental rights. If he failed to avail himself of the opportunity he could be foreclosed from participating in decisions concerning his child.
Birth fathers have complained that these methods are inadequate to protect their rights, particularly when the birth mother who wants to place the child for adoption fails to provide information to him or misrepresents her intentions. Courts generally have not been responsive to these pleas. A case decided earlier this year from Utah, In the Matter of the Adoption of B.Y., is illustrative. In 2010, the father, Strickland, was involved in a sexual relationship with W.P., who at the time was married to someone else. In August, she decided tentatively to place the child for adoption, a plan that he opposed. He then consulted an attorney who advised him to file a paternity action. When W.P. found this out, she became upset and he agreed that he would not file as long as she promised she would not proceed with an adoption without informing him to which she agreed. W.P. gave birth in December 2010 and the next day relinquished her parental rights and placed the child for adoption. The agency searched the records at Utah’s Office of Vital Records and Statistics and determined that, as of January 4, 2011, no paternity action had been filed and therefore proceeded with the adoption.
When Strickland learned of this action, he filed a paternity suit and attempted to intervene in the adoption action. His request was denied on the basis that he had failed to comply with the statutory process for preserving his rights. He appealed to the Utah Supreme Court and argued that his inaction should be excused because of the fraudulent misrepresentation by the birth mother. In the alternative, he asserted that the statutory scheme violated his constitutional rights.The court dismissed his first argument on the basis that the Utah statute specifically provides that “each parent of a child conceived or born outside of marriage is responsible for his or her own actions and is not excused from strict compliance with the provisions of this chapter based upon any action, statement, or omission of the other parent or third parties.” The court then rejected his claim that he was denied procedural due process on the basis that the actions complained of were private and not state action. Likewise, his substantive due process claim was rejected based on the Lehr decision, which again only requires that the state provide an opportunity for an unmarried birth father to preserve his rights.
Courts in other states that require a birth father to file a paternity action or with the putative-father registry have also upheld the statutory scheme. The lessons from these cases are several. First, attorneys need to be aware of the methods of preserving birth fathers’ rights in their states. Second, birth fathers should be advised that the duty to preserve their rights belongs to them, and reliance on the action of the birth mother is not likely to excuse their failure to protect their own interests in their child.
This case was not handled by our firm. However, if you have any questions regarding this case, or any family law matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.
For a free consultation, please do not hesitate to call the experienced family law and divorce attorneys at Maya Murphy, P.C. in Westport, CT at 203-221-3100. We may also be reached for inquiries by email at JMaya@mayalaw.com.
Source: National Law Journal
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