This is a  research paper written by one of our own. Of course, the subject could be talked about in great detail, this piece was limited on size and therefore provides a wonderful overview of the issues of a father’s right to his biological child in cases of adoption and also in contested adoptions. A well deserved 99 was given!

By  Karen L. Fetrow; Shippensburg University

Many people I talk with have at least heard of “Baby Veronica” who was in the national spotlight last year in a fight over who had the legal rights to parent her.  In 2009 she was given up by her biological mother to potential adoptive parents (PAPs), but her biological father contested the adoption.  Veronica remained with the PAPs over two years until her father was granted custody.  Despite living with biological family almost two years the PAPs filed another suit and finalized Veronica’s adoption, traumatizing her again (Adams, n.d.; Niels, 2014).

This situation raises a host of questions.  Who has rights to a child when the parents are not married to each other?  Does a mother have sole right to an adoption decision?  Does a father have rights to contest an adoption?  What challenges does a father face in such a battle?  Is Dustin Brown alone?  Are father’s rights upheld or trampled regarding adoption?

Statement of the Topic: Unwed Fathers’ Rights

In the early 1960’s approximately one of twenty children was born outside of marriage (Parness & Arado, 2007).  Today that has increased to 31%, nearly one out of three (Finley, 2002; Parness & Arado, 2007).  Of this 31% almost one third does not have a father listed on the birth certificate, which represents half a million children (Parness & Arado, 2007; Seubert, 2011).  Half a million does not include unwed fathers whom Marby (2007) defines as “a man who fathers a child when he is not married to the child’s mother … even if he is married to someone” else (p. 363).

These figures indicate a change in society’s view about marriage and un-married mothers, but fathers’ rights have not progressed at the same pace.  J. Brown, a single-father, shared negative reactions people have regarding his shared custody with his daughter.  People are surprised he wants to participate in her life and raise her.  He described scenarios where court and lawyer decisions or comments clearly favor the girl’s mother (personal communication March 13, 2014).

Shanley (1995) explained that “custody was vested in the mother because the law presumed that she was better suited to raise children” (p. 77).  Strassner (20007) described the treatment of unwed fathers by the state of Illinois, whereby it was unnecessary to hold hearings to decide if fit or unfit, but rather presume them to be unfit.  Consider Chamber’s (2010) comment that “the unequal treatment accorded natural fathers evolved from tradition and social custom rather than a demonstrated unwillingness or inability to parent” (p. 307).

Fathers have proven to be good parents, persistent in pursuing custody, and draw in extended family support when needed.  This benefits children, and yet current ideas persist that mothers are better at raising children.  Such stereotypes are not based on fact or father’s actual abilities, but by socialization of gender roles (Renzetti, Curran, & Maier, 2012).

Fathers’ rights impact not only the father, but also the child(ren) and the entire family system.  As noted earlier, family dynamics have changed from fifty years ago and Finley (2002) aptly expressed “it is time to reconsider a man’s ‘right to choose’ as well as a woman’s ‘right to choose’ whether or not to parent” (p. 2).  Allowing that the conception was not from violence or rape (Parness & Arado, 2007; Shanley, 1995; Spitko, 2006), this “right to choose” should be extended to fathers for custody decisions as well as adoption decisions. Custody issues reveal a bias, but when it comes to adoption, fathers’ rights are denigrated.

Scope of the Issue: Unwed Fathers’ Rights

Gonzales (2006) presented a principle she perceived was unaccepted in the United States when it comes to unwed fathers.  “The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered.” (p. 40).

There were eighteen notable cases in twelve years in which unwed fathers contested the adoption of their child (Niels, 2014), but accurate statistics are simply not available to determine how many adoptions were contested to identify cultural or racial implications.  It can be presumed poor fathers were unable to afford the exorbitant legal fees.  Cases that did not gain national attention likely remain unidentified.  Nor is a count available of fathers prohibited from filing a suit.  Also unaccounted for, as Strassner (2007) points out, are fathers who were uninformed about the pregnancy or subsequent adoption.

Precedent Cases  Infant Adoption  & Unwed Fathers’ Rights 

In 1972, an unmarried mother died and Illinois took her children as wards of the state, regardless of the fact the father intermittently lived with his girlfriend and children over an eighteen year period.  The state did not even grant him a hearing to determine if he was fit. Instead it presumed that, since he did not marry the mother, he was unfit (Seubert, 2011; Strassner, 2007).

Robert O. and fiancé lived together.  She became pregnant before they broke up.  She did not tell him about the pregnancy or the adoption of their child until several months after adoption was finalized.  The New York courts ruled that he could have known she was pregnant, thus he was denied rights of due process and lost his child (Strassner, 2007).

Several cases (Kelsey, Steven, Wells, and Michael) involved the mother secretly moving to another state to give birth and make the adoption easier without the father’s consent.  These cases involve couples who sometimes lived together.  In each case, the fathers wanted and planned to parent or co-parent the child (Strassner, 2007).  Mothers crossing state lines further complicates adoptions because the laws vary on what a father has to do to establish paternity or contest an adoption (Spitko, 2006; Strassner, 2007).

Fathers’ Rights  & Safe Havens

Safe havens allow a parent to legally abandon a child with out prosecution.  The purported concept is to allow a child to be abandoned in a safe place, such as a hospital or fire station, to avoid neglect or abuse.  Authorities then hand the child over to an adoption professional to be placed with an adoptive family (Gonzales, 2006; Strasner, 2007).

While the concept may sound good, the process has gaping holes concerning rights.  The person dropping the child off is not always required to provide identifying information about themselves or about the child.  Safeguards are lacking to guarantee the person abandoning the child has the right to do so.  The child is adopted without regard to paternity, thus effectively bypassing fathers’ rights altogether (Gonzalez, 2006; Parness & Arado, 2007; Strassner, 2007).

Practice of Placing Child with PAPs in Adoption 

Mothers giving up their child for adoption without the father’s knowledge or consent, often select the PAPs who may become involved before, during, or immediately after the birth.  The child and custody are granted to the PAPs as quickly as possible.  Gonzalez (2007) describes it as a disadvantage from the courts against the biological father when granting custody to the PAPs during the potentially lengthy adoption process.  This denies a father the opportunity to build a relationship with his child.  This will later be used against him, arguing that the PAPs are the only family the child has know, despite a father’s fight from the beginning (Shanley, 1995).

Possible Sources/Causes of the Issue

There are several viewpoints, practices, and attitudes to consider.  Each contributes to the issue of fathers’ rights being systematically disregarded when it comes to adoption.

Viewpoint Mothers’ Sole Right to Adoption Decision

One view considers the mother’s contribution to the pregnancy as greater than the father’s.  This should afford her greater rights regarding the child (Shanley, 1995; Chambers, 2010; Spitko, 2006).  Spitko (2006) suggests the mother has a constitutional parental right which includes the right to determine who else will be involved in the child’s life and upbringing.  According to Chambers (2010) this right is without regard to her marital status.

Another viewpoint compares the right to an adoption decision with the right to an abortion stating both are reproductive rights (Chambers, 2010).  However, as Parness and Arado (2007) argues, even the abortion decision is not absolute but has limitations imposed. In the same manner her rights for an adoption decision would involve limitations as well.

Viewpoint Fathers’ Rights to Veto Adoption

Unless biological or adoptive parents are deemed unfit, “the paramount rights of both parents… [regarding] their minor children must prevail” (Parness & Arado, 2007, p. 208).  According to Marby (2007), once paternity is established, the father should be given same rights as the mother.  However establishing paternity is in itself a hurdle because the process is vague, disjointed, and inconsistent.  Laws vary across states plus determining which state has jurisdiction is confusing. (Seubert; 2011; Strassner, 2007).

Parness and Arado (20007) highlights equality.  Illinois, “The parents have equal powers, rights and duties concerning the minor” (p. 208).  Delaware, “neither shall benefit from any presumption of being better suited for such [custody] award” (p. 209).  Blake, “the father’s right to custody of his illegitimate child is legally equal to that of the child’s mother” (p. 218).

Biology Plus versus Biology Only in Adoption 

With biology plus “the father must prove he is biologically the father plus he has taken responsibility for his child(ren)” (Gonzales, 2006. p. 40).  This was established from a US Supreme Court case acknowledging the biological father and child connection as significant in offering a special bond and if the father “grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development” (Spitko, 2006, p. 98).

According to Spitko (2006) this description was regarding young children, not newborns.  With this two point requirement, how can a biological father develop a relationship with his newborn if his efforts are thwarted by the mother, the PAPs, or the adoption agency?  (Marby, 2007; Oren, 2007; Seubert, 2011; Spitko, 2006; Strassner, 2007).  At no fault of his own, the father’s “opportunity to shoulder the responsibility of parenthood may disappear before he has a chance to grasp it’ (Shanley, 1995, p. 94).

If collecting support for a child, only biology is considered.  No further tests or steps are implemented to determine the man is the father.  Comparing biology plus with biology only renders a different standard of proof for establishing paternity (Oren, 2007; Strassner, 2007).

Putative Father’s Registries

A putative father is a man who may be a child’s biological father, but he is not married to the child’s mother and he has not legally established paternity.  Not all states use putative registries to establish paternity.  Variation exists among the laws, requirements, deadlines, timeframes between the states that do.  Registry information in one state is not valid in another which is problematic when the mother hides and moves to another state(s).  Some states additionally stipulate the father must file before the child is placed with an adoption agency or PAPs (Chambes, 2010; Gonzalez, 2006; Parness & Arado, 2007; Seubert, 2011; Spitko, 2006).

Not meeting the above requirements and failure to file on the elusive register voids the father’s rights.  Filing within the timeframe stipulated is also critical.  Fathers have lost when registering one day late – even though information about the birth was intentionally withheld from him.  There is no requirement to search for a father if none is listed on the registry.  (Chambers, 2010; Gonzalez, 2006; Parness & Araado, 2007; Seubert, 2011; Spitko, 2006).  Rather than protecting the fathers’ rights, registries work against them.

Adoption Workers Over Identify with Mother

Worker bias can have tremendous impact.  According to Finley (2002) adoption professionals often view fathers as someone to be avoided.  Platts (1968) highlights the attitudes held by workers as being more resistant than the mothers about getting the fathers involved.  They express bias against fathers as being irresponsible, not convinced of importance of father’s part in the adoption decisions, and taking sides with the mothers who likely distort facts about the father.  Also reference to fathers is usually as a resource, but not as a person.

Implications for Practice

Change requires a shift in attitude and policies.  Shanley (1995) recommended such a shift.  Instead of emphasizing individual rights, consider it a parental issue “involving two adults and a child, and the relationships among them” (p. 96).  According to Platts (1968), when both parents work together it increased their alternatives and options.  A shift in attitude will focus on the child.  As stated by the United Nations Convention on the Rights of the Child, a child has “the right to know and be cared for by his or her parents (Marby, 2007, p. 381).

According to Marby (2007), “making an effort to identify and locate birth fathers is essential for adoptees’ well-being” (p. 407).  Emphasize education of mothers on the importance of correctly identifying the father.  Policies need revised to ensure accuracy of paternal information, such as a DNA test.  Perhaps utilize the same system to find fathers for an adoption notice that is already in place for finding fathers for payment of child support (Marby, 2007; Parness & Arado, 2007).

“The most commonly contested adoptions occur where mothers want to place children for adoption and fathers object” (Beck, 2007).  To prevent other children from being traumatized like Veronica Brown, policies could be revised so a child is not available for adoption until parental rights have been relinquished or terminated.  Also that fathers’ rights “be treated no differently than the biological mother, i.e. his parental rights can be terminated involuntarily only upon a showing of unfitness (Spitko, 2006, p. 276).

This paper looked at the prejudices that still exist toward unmarried fathers, especially if adoption is planned.  Review of court cases, safe haven laws, and the practice of placing the infant with PAPs when a father contests reveal systematic exclusion of fathers’ rights.

Some argue that a mother should have sole right to make adoption decision, while others insist fathers should have equal say if they were not declared unfit.  Biology plus versus biology only show blatant double standard in establishing paternity.  Putative registries work against fathers as do the bias of workers involved in the process.

A shift in attitudes and policy changes are needed to ensure the rights of fathers and of children are not ignored.  Adoption should be reserved for children who need loving homes.  Adoption should not be used to separate children from natural fathers who are capable and desire to parent their child(ren).  Eighteen fathers in twelve years is eighteen families too many.

 References

Adams, N. (n.d.).  Adoptive Couple v. Baby Girl: Information and Resources.  Retrieved from http://www.nicwa.org/babyveronica/

Beck, A. (2007).  A National putative father registry.  Capital University law Review, 36(1), 295-338.

Chambers, L. (2010).  Newborn adoption: Birth mothers, genetic fathers, and reproductive autonomy.  Canadian Journal of Family Law, 26(2), 340-293.

Finley, G. E. (2002).  Birth father rights and legislative interventions.  Adoption Quarterly, 6(1), 1-5.

Gonzalez, R. P. (2006). The Rights of putative fathers to their infant children in contested adoptions: Strengthening state laws that currently deny adequate protection. Michigan Journal of Gender and Law, 13(1), 39 -74.

Mabry, C.R. (2007). Looking beyond the United States: How other countries handle issues related to unwed fathers in the adoption process.  Capital University law Review, 36(1), 363-412.

Niels. (2013, April 12).  Dusten Brown (baby Veronica case). Retrieved from http://poundpuplegacy.org/node/59458

Oren, L. (2007).  Unmarried fathers and adoption: “Perfecting” or “abandoning” an opportunity interest.  Capital University law Review, 36(1), 253-293.

Parness, J. A., Arado, T. A. C. (2007).  Safe haven, adoption and birth record laws: Where are the daddies?  Capital University law Review, 36(1), 207-525.

Renzetti, C.M., Curran, D.J., & Maier, S.L.  (2012). Women, men and society (6th ed.).  Boston, MA: Pearson Publishing.

Seubert, S. I. (2011).  Adoption shortcuts, safeguards, and pitfalls from an unwed father’s perspective.  American Journal of Family Law, 25(2), 42 – 49.

Shanley, M. L. (1995).  Fathers’ rights, mothers’ wrongs? Reflections on unwed fathers’ rights and sex equality.  Hypatia, 10(1). 74-103.

Spitko, E. G. (2006).  The Constitutional function of biological paternity:  Evidence of the biological mother’s consent to the biological father’s co-parenting of her child.  Arizona Law Review, 48(1), 97-148.

Strassner, M.  (2007).  The Often illusory protections of “biology plus:” On the supreme court’s parental rights jurisprudence.  Texas Journal on Civil Liberties and Civil Rights, 13, 31-83.