By David J. Hardy // Attorney
“It is a wise father that knows his own child.”
-William Shakespeare, The Merchant of Venice
A colleague (another adoption attorney) once shared with me the story of an attorney who was diagnosed with heart problems. His physician, sensing that a hard-charging litigation legal practice was contributing to the problem, suggested that he find a less stressful specialty. The physician proposed, “something like adoption law.” My colleague and I both laughed, knowing that adoption law is far from stress-free.
Although many issues arise in adoption cases, the most common disputes involve parental rights. The disputes arise and find their way to court when one biological parent wishes to place a child for adoption and another biological parent (or perhaps a grandparent or other family member) opposes the placement. If the issue cannot be resolved through agreement, a court must determine whether the adoption can proceed without the consent of an opposing party.
For this reason, the evaluation of any adoption situation requires both (1) an analysis of parental rights and (2) a plan to address those rights. Although this is the subject of numerous statutes and court decisions, what follows is a brief and general summary:
• A biological mother has full parental rights to a child by virtue of having carried the child through pregnancy and given birth. Her name appears on the birth certificate. In order for an adoption to proceed, the mother must consent to the adoption or her parental rights must be terminated.
• The mother’s husband is presumed to be the child’s father, and he will have full parental rights unless that presumption is rebutted. The rebuttal is usually done by showing that someone else is the father. In some areas, only the mother or her husband can rebut that presumption. Unless there is a judicial decision rebutting the presumption of paternity, the husband must consent to the adoption or his parental rights must be terminated.
• An unmarried father’s rights depend on applicable law and his actions to assert parental rights. Until about forty years ago, an unmarried father was thought to have no rights. That principle changed through a series of Supreme Court decisions. These established that an unmarried biological father must have an opportunity to establish his rights. His rights may be established through one of the following:
o He is listed on the child’s birth certificate (with the mother’s consent)
o A court has determined he is the father
o He has acted as the child’s father, providing parental care and financial support over a period of time (often six months or more; this is not possible with a newborn)
o He has taken the steps necessary to assert parental rights over a newborn
For the final option, the steps required to assert parental rights over a newborn vary from state to state. In some states, he need only respond when given a notice of the adoption. In others, he must act affirmatively, as by filing a paternity action or registering with a putative father registry. Often, he must pay expenses of pregnancy and childbirth. Regardless of the nature of his rights, in order for an adoption to proceed, an unmarried biological father must consent to the adoption, his rights must be terminated, or it must be determined that he has no rights to assert.
• Grandparents or other family members generally do not have parental rights and their consent to an adoption is not required. For an older child, however, if there is an established relationship with a relative, that relative may be entitled to be notified of an adoption and to be heard on whether adoption is in the child’s best interests. Although these individuals do not have parental rights, they may need to be acknowledged.
Naturally, adoption goes more smoothly if all parental rights are handled through consent.
Proceedings to terminate parental rights can be difficult, as courts are understandably reluctant to terminate rights. It requires an elevated showing (clear and convincing evidence) of both (1) a basis for termination, such as abandonment, abuse, neglect, or parental unfitness, and (2) evidence that termination is in the child’s best interests.
Similarly, ignoring an unmarried father or relative who has no rights can be problematic. The lack of rights does not prevent them from claiming otherwise, and a judicial determination that they have no rights can require considerable time, money and attention.
It is, of course, not always possible to have an adoption with everybody’s agreement. Thus, prospective adoptive parents will be well-served to consider issues related to parental rights before the adoption and to discuss with their agency or attorney how parental rights will be handled. In that manner, reasonable expectations can be set and problems can be addressed, if possible, before the placement.