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Adoption Facts: Understanding the Birthfather's Rights

Many adoptions take place without involving the birthfather in any way. He might not receive any counseling, choose the adoptive parents, meet the adoptive parents, see the baby, or sign any papers. But regardless of his participation, he has the same rights as the birthmother. In other words, a birthfather is that child's father unless he voluntarily relinquishes his rights as a parent or has his rights terminated by the court.

All of this is well and good — provided that the man who fathered the child is aware that he has a child and is available when the adoption decisions are made so that he can be involved. But what happens when a man doesn't discover until after the fact that he fathered a child and that child is now in an adoptive home? Or when he hits the road and isn't around to give his consent to the adoption plan that the birthmother makes? These situations, and others like them, directly affect what has to happen before the child becomes available for adoption and how much risk is involved. The following sections show you what you need to know.

All reputable agencies and attorneys follow certain procedures to ensure that the birthfathers, if they can be located, are aware of the adoption plans and know their rights. And if the birthfathers can't be located, these agencies and attorneys make sure you're aware of the risks involved going forward. Anyone who tells you not to worry about the birthfather because he's not around, doesn't know about the pregnancy or adoption plan, or just "isn't interested" in what's going on is playing with fire — and the house that may burn down is yours. Every adoption that proceeds without the birthfather's consent carries a degree of risk. The particular situation determines how much risk. Don't let anyone tell you otherwise.

Legal risk adoptions

Most agencies and attorneys welcome the birthfather's presence and participation in making the adoption plan. Why? Because if the father knows about the adoption and is in agreement with it, and if he signs the necessary legal papers to consent to the adoption, he can't challenge the adoption at a later date.

Still, many adoptions proceed even if the birthfather can't be found or doesn't sign consent forms. These situations carry a degree of risk because of the chance that he may reappear and claim his parental rights to the child. In fact, the less involved the father is in the adoption planning, the more legal risk is involved in the adoption.

To protect you in these situations, agencies and attorneys do the following:

  • Inform the birthfather of the adoption plans: The adoption is less likely to be challenged if the birthfather cooperates and participates in the planning. Even if the father isn't in agreement with the adoption, he still needs to be kept well informed of the events. Otherwise, he can come back later and claim that everything took place without his knowledge.
  • Try to locate missing birthfathers: The best possible scenario for you is to have the legal father and/or anyone presumed to be the biological father informed and involved of the adoption plans. This can't happen if no one knows who the father is or where to find him. To address this issue, agencies and attorneys search putative (alleged) father registries and publish notices in places they think he may be.
  • Make you aware of the birthfather's attitude, cooperation level, and involvement in the adoption plan and explain the risks involved: Once you know the full situation, you can make a decision about whether you're prepared to take those specific risks.

Every adoption carries an element of risk. When the birthfather has been absent from the mix, the adoptive parents have to live in fear that he may emerge to challenge the adoption. If you move forward with an adoption in such a situation, be certain that your attorney takes all the necessary legal steps to provide you with as much protection as possible.

Being notified of a pending adoption

To avoid a situation in which an absent or uninvolved birthfather steps back into the picture and challenges the adoption, attorneys and agencies do what they can to inform the father of the adoption and his rights. That way, if he's inclined to assert his parental rights, he can do so before a child gets placed in an adoptive home. How agencies or attorneys notify the father depends on whether they know who and where he is.

Name and whereabouts known

Most agencies and attorneys routinely serve legal notices to the father during the pregnancy. This notice informs the birthfather of the pending adoption and tells him what he needs to do if he wants to stop the process.

After receiving the notice, the birthfather can't later claim that he was unaware of what was transpiring. In addition, he has to act within a certain period of time (which differs state by state) if he wants to stop the adoption. In most states, not acting is the equivalent of consent.

Name known; whereabouts unknown

If the father's name is known but his whereabouts are unknown, some states require the agency or attorney to make reasonable efforts to locate him. So what constitutes "reasonable" effort? The answer differs by state and, often, by judges within a state. It often includes things like making phone calls, writing letters, and so on.

States that offer a putative father registry may not require any effort to be made to locate the birthfather. In these places, the burden falls on the man to know whether he may have gotten someone pregnant and to take steps to retain his parental rights, if he wants them.

The amount of time that a man has to respond to the notification also varies by state. Usually it's a few weeks. If he can't be located or doesn't respond within that time frame, the adoption moves forward.

Now, here's the $64,000 question: If your agency takes these steps but still can't find the birthfather and the adoption proceeds, can the man appear later and, with the claim of not knowing what was going on, reclaim his rights? The answer to that question depends on the laws in your state. In some states, he may get a hearing; in other states, he may not. If you're in this situation, ask your agency or attorney to explain what happens if an absent birthfather reappears.

Nobody knows nothin'

When the birthmother refuses to name the father or when she doesn't know who the father is, obviously, no one can serve him with a notice, and no arrangements can be made for him to sign legal adoption consents. As a result, these adoptions carry the most legal risks.

In these cases, the agency or attorney checks the putative father registry. If no name is found on the registry, the attorney or agency places legal notices in a publication (usually local newspapers) notifying the public that this adoption is about to transpire and that the father of the child must come forward if he wants to stop the adoption proceedings.

Ask your agency or attorney about the following policies:

  • Where adoption notices are published: The guidelines vary by state. Some states don't have any specific guidelines. Usually, the notice has to be published in the city or state where it is believed the father resides.
  • How long the notice has to run: This policy varies by state, but expect the notice to run for a few weeks.
  • Whether adoption notices are still published, even if your state has a putative father registry: Although states with a putative father registry may not require that you publish, many attorneys still recommend that you do.

If the birthfather doesn't come forward, he loses his parental rights.

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