Birthfathers’ Rights in the Adoption Process: Know Your Options, Know Your Rights
There is a common misconception in today’s society that a child’s birthfather has less rights than birthmothers do and that they are unable to make choices regarding their baby. Did you know that the birthfather starts out with the same legal rights as birthmothers? Birthfathers have a right to parent their child and a right to object to an adoption of their child even though statistically, many adoptions take place listing unknown birthfathers or birthfathers who choose to be uninvolved in the process after being notified and some men who voluntarily relinquish their rights and choose to be involved in some level of an open adoption. As a birthfather, it’s important to be aware that you do have a choice and there are laws to protect your rights and even more important is knowing what those laws are and how they affect you.
Notifying the Father of the Adoption
Whether an expecting mother is working with an attorney or an adoption agency, the representation for the adoption will do whatever possible to make sure that the father is aware and decides either to consent or contest the mother’s decision to make an adoption plan regardless if both parents are in a relationship or even speaking terms or not. This is done in advance to avoid a situation in which an absent or uninvolved birthfather steps back into the picture and challenges the adoption. With that said, there are occasional situations when a birthfather reaching out to the agency to contest the adoption after the child is already placed in the home with an adoptive family and this is called a disruption. However, if the birthfather knows about the adoption and his rights, receives counseling, is made aware of all his options, and feels adoption is the right choice for his child, chances of disruption are significantly lowered. Adoption is less likely to be disrupted or challenged if the child’s birthfather participates in the planning and is fully aware of his rights along the way. Adoptions From The Heart welcomes the father’s presence and participation in making the adoption plan. Whether or not the child’s mother wants an open adoption, the father is able to decide the level of openness he would like as well as the number of visits each year. Even if the father isn’t in agreement with the adoption, he still needs to be kept well informed of the events and be very much aware of his rights.
Laws of Birthfathers’ Rights Vary by State
Every U.S. state and territory has a statute providing for the termination, surrender, or relinquishment of the parental rights of the birth mother and birth father. What termination means is that the parental rights end the biological parent-child relationship. Each state has its own requirements that must be met regarding making this decision. Only when this relationship has been ended, the child is legally free to be adopted. Even though these laws differ in all US states, please find a few highlights of child adoption laws for the states where we are licensed in below.
To check the laws of the state in any of the other states, feel free to check out www.childadoptionlaws.com.
“…(d) Putative father.–If a putative father will not file a petition to voluntarily relinquish his parental rights pursuant to section 2501 (relating to relinquishment to agency) or 2502 (relating to relinquishment to adult intending to adopt child), has been given notice of the hearing being held pursuant to this section and fails to either appear at that hearing for the purpose of objecting to termination of his parental rights or file a written objection to such termination with the court prior to the hearing and has not filed an acknowledgment of paternity or claim of paternity pursuant to section 5103, the court may enter a decree terminating the parental rights of the putative father pursuant to subsection (c).”
“…(d) Of the father, whether adult or infant, of a child born out-of-wedlock and placed with the adoptive parents more than six months after birth, but only if such father shall have maintained substantial and continuous or repeated contact with the child as manifested by: (i) the payment by the father toward the support of the child of a fair and reasonable sum, according to the father’s means, and either (ii) the father’s visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child, or (iii) the father’s regular communication with the child or with the person or agency having the care or custody of the child, when physically and financially unable to visit the child or prevented from doing so by the person or authorized agency having lawful custody of the child. The subjective intent of the father, whether expressed or otherwise, unsupported by evidence of acts specified in this paragraph manifesting such intent, shall not preclude a determination that the father failed to maintain substantial and continuous or repeated contact with the child. In making such a determination, the court shall not require a showing of diligent efforts by any person or agency to encourage the father to perform the acts specified in this paragraph.”
“…(b) The birth parent, except one who cannot be identified or located prior to the placement of the child for adoption, shall be offered counseling as to his or her options other than placement of the child for adoption. Such counseling shall be made available by or through an approved licensed agency in New Jersey or in the birth parent’s state or country of residence. The fact that counseling has been made available, and the name, address and telephone number of the agency through which the counseling is available, shall be confirmed in a written document signed by the birth parent and acknowledged in this State pursuant to section 1 of P.L.1991, c.308 (R.S.46:14-2.1) or acknowledged in another state or country pursuant to section 1 of P.L.1991, c.308 (R.S.46:14-6.1) a copy of which shall be provided to the birth parent and the agency conducting the adoption complaint investigation pursuant to section 12 of P.L.1977, c.367 (C.9:3-48) and shall be filed with compliance.
“…(2) The biological father and any presumed father of a child; provided, however, that the consent of the alleged biological father or presumed father need not contain an admission that he is the father. In the event that the named biological or presumed father disclaims paternity, an affidavit signed by him to that effect shall be attached to the petition in lieu of a consent from the natural or presumed father. It is further provided that in the event of a petition containing statements described in § 906(7)b.(ii), (iii) or (iv) of this title, after a hearing in which it is established on the record that the mother and father of the child are not living together as husband and wife openly and that they have not done so nor married since the birth of the child, the Court may, following consideration of the social report, dispense with the requirement of the father’s consent in compliance.”
“…(b) A petition for termination of parental rights shall be entitled “In the interest of …. (Name of child), a person under the age of eighteen years”, and shall set forth with specificity: (1) The name, sex, date and place of birth, and present address of the child; (2) the name and address of the petitioner, and the nature of the relationship between the petitioner and the child; (3) the names, dates of birth and addresses of the parents of the child, if known, including the name of any putative father named by the mother, and the tribe and reservation of an American Indian parent; (4) if the parent of the child is a minor, the names and addresses of the parents or guardian of the person of such minor; (5) the names and addresses of: (A) The guardian of the person of the child; (B) any guardians ad litem appointed in a prior proceeding; (C) the tribe and reservation of an American Indian child; and (D) the child-placing agency which placed the child in his current placement; (6) the facts upon which termination is sought, the legal grounds authorizing termination, the effects of a termination decree and the basis for the jurisdiction of the court; (7) the name of the persons or agencies which have agreed to accept custody or guardianship of the child’s person upon disposition.”
“…B. No consent shall be required of a birth father if he denies under oath and in writing the paternity of the child. Such denial of paternity may be withdrawn no more than 10 days after it is executed. Once the child is 10 days old, any executed denial of paternity is final and constitutes a waiver of all rights with respect to the adoption of the child and cannot be withdrawn.”
Have Courage and Be Strong
Now that we have researched the specific laws in our state, we are now confident and capable of exercising our rights. Although each state differs in law, the rights of the birthfather are clearly stated in all 50 states. Birthfathers start out with the same legal rights as birthmothers and have a right to parent their child and a right to object to an adoption of their child. Adoption law has a processes for establishing and terminating a birth father’s parenting rights, but the law does not eliminate all uncertainly.
One problem that birthfathers face is that everyone around them assumes that they don’t care and often times, birthfather pay a price for not exercising their rights says Mary Martin Mason, the Minneapolis-based author of Out of the Shadows: Birthfathers’ Stories. “They were incredibly guilty and incredibly guilty to have lost their children” according to Mason. “This had affected their adult lives-their marriages, their jobs, their relationships.” They weren’t able to move on. It can take a lot of courage for a birthfather to walk through the doors of an adoption agency and we understand that and recognize the immense strength of the brave birthfathers who do take that step.
Adoptions From The Heart wants to personally become more birthfather friendly and cater to their specific needs since much of what is out there focuses on adoptive parents and birthmother needs. We believe by implementing birthfather focused literature, support groups, creating a “Birthfather Friday” marketing campaign, and encouraging general, open communication we can help empower the often forgotten birthparent. If you are an expecting mother struggling to find the courage to tell the father that you are pregnant, realize that you are not alone. Often times than not, your social worker can help you. If you are a birthfather, we hope this article helped you and shed some light on your very real and legal rights in the adoption process. Yes, it may put you out of your comfort zone at first but we assure you, the benefits of knowing all of your rights and exercising your ability to help create an adoption plan for your child if you choose is well worth being as involved as possible. It’s important not become the forgotten half of the story. Your voices is just as important and needs to be heard.
For help or advice please contact us today at 610-642-7200. If you are a birthfather and would like to share your story with us or participate in our “Birthfather Friday” series, please call us or email us Adoption@AFTH.org.