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In spite of legislative changes designed to facilitate adoptions by limiting challenges by unwed fathers, this area of the law remains unsettled as litigation increases nationwide. Recently, the courts in several jurisdictions have issued opinions attempting to clarify the rights of unmarried fathers to intervene and object to the adoption of their children. A decade of defining unwed fathers’ rights Before 1972, a father had no legally cognizable rights with respect to his child who was born out of wedlock. He was simply not considered to be a “legal” parent. In that year, the U.S. Supreme Court in Stanley v. Illinois, 405 U.S. 645 (1972), held that a man who had sired and raised his children could not have them taken away based simply on a “best interests of the child” test. In doing so, the court recognized a biological father’s right to at least a hearing on his fitness. During the following decade, the Supreme Court continued to define the parameters of unwed fathers’ rights. In Quillion v. Walcott, 434 U.S. 246 (1978), the unwed father was not permitted to veto his child’s adoption by the mother’s husband because he had visited the child only sporadically in the years prior to the adoption petition and only sought to legitimate him (through the state legitimation statute) once the adoption petition was filed. The court, in ruling against him, found that he had done too little, too late to acquire a protected right in his relationship with his son. For this reason, a “best interest” test alone could be used to evaluate the appropriateness of the adoption. The father in Caban v Mohammed, 441 U.S. 380 (1979), decided the following year, fared better in his desire to block the adoption of his children by their stepfather. In Caban, the father had lived with the children and had consistently supported them even after he and the children’s mother separated. His action in establishing a “substantial relationship” with the children and admitting his paternity put him on equal legal footing with the mother, thereby rendering the statute that treated them differently, unconstitutional on equal protection grounds. Finally in Lehr v Robertson, 436 U.S. 248 (1983), the Supreme Court reaffirmed the distinctions made in Quillion and Caban by denying the putative father who had neither registered with the putative-father registry (nor supported nor lived with the child) an opportunity to object to the child’s adoption by the mother’s husband. In fact, because of his failure to file with the putative-father registry he was not even entitled to notice of the adoption proceedings. In Lehr, the court made it clear that biological parenthood is insufficient to vest the rights of parenthood in the unwed father. Only in those circumstances where the putative father comes forward and demonstrates a “full commitment to the responsibilities of parenthood” and “a willingness to participate in the rearing of his child” is the state required to recognize his superior right to third parties regarding the care and custody of his child. The ability to evaluate the father’s commitment to his parenthood was made easier in the Supreme Court cases by the fact that there was a period of time in which to do so. The real problem arises, however, in those cases involving newborns where the goal of placing a child early with an adoptive family might conflict with the rights of a father who wishes to establish a commitment but has little time in which to do so. This problem had been addressed at least preliminarily in Lehr, where the court upheld the use of a paternity registry which allowed an unwed father to preserve his rights to notice and an opportunity to be heard by filing with a putative-father registry before the child’s birth or soon afterwards. In fact, the court held that by creating the registry, thereby permitting unwed fathers an opportunity to assert an interest in their offspring, the state of New York had given such fathers all the process they were due. By 2005, 34 states had enacted some form of registry law. The consequences of failing to register or for taking some action to otherwise perfect rights (such as filing a paternity action soon after birth) vary, but in most states result in a waiver of the ability to consent to or to veto a subsequent adoption of the child. While the paternity registries were becoming widespread, a new wrinkle appeared. In several highly publicized cases from Florida, Illinois, Iowa and Michigan, unwed fathers whose children had been placed for adoption appeared and claimed that they were thwarted in their efforts to demonstrate a “full commitment” because of some fraudulent action of the child’s mother. Because these situations resulted in the disruption of adoptions in which the children were several years old, public attention to solving the problem increased. Two legislative responses followed. First, legislatures re-emphasized the importance of requiring registration whenever a man believed he had fathered a child and, second, some states excused the birth father’s failure to perfect his rights if he could prove that the mother acted in a fraudulent manner (i.e. denied the existence of the pregnancy, claimed that the pregnancy had been terminated or that the baby had died). However, the purpose of these statutes has been undermined in a series of state court decisions. As in most states, Florida’s statutory scheme provides that consent to adoption is not required of an unwed father who fails to file with the putative-father registry. In J.C.J. v. Heart of Adoptions Inc. 942 So. 2d 906 (Fla. 2d Dist. Ct. App. 2006), the child was placed by the mother with an adoption agency that subsequently filed a motion for a voluntary termination of parental rights of both the mother and the father (who was listed as “unknown”). The court granted the termination petition apparently on the basis of the mother’s written consent and its conclusion that because the father’s consent to the proposed adoption was not necessary, his rights should also be terminated. In fact, the relevant statute states that an unmarried father who does not comply with the putative-father registry requirements “is deemed to have waived and surrendered any rights in relation to the child.” The putative father did learn of the proposed adoption and filed a paternity action. In spite of the language of the statute, and the purpose of the putative-father registry, the appeals court permitted the father to proceed with his paternity suit by finding that the trial court was without jurisdiction to terminate his parental rights because he was not a “parent.” It then gave the father yet another opportunity to establish that he was entitled to recognition as a parent. In its holding, the court suggested that its decision would not likely affect ” many cases”; however within six months of the decision two other adoptions were disrupted when unwed fathers who had failed to register were nevertheless permitted to evade the registry-filing requirement without penalty and permitted to file paternity actions. See A.S. v. Gift of Life Adoptions Inc., 944 So. 2d 380 (Fla. 2d Dist. Ct. App. 2006); J.A. v. Heart of Adoptions Inc., __ So. 2d ___, 2007 WL 403571 (Fla. 2d Dist. Ct. App. 2007). Further resistance to father registries seen in Missouri Further resistance to the underlying intent of putative-father registries is demonstrated by the Missouri Supreme Court’s decision in In re the Adoption of N.L.B. M.T. and S.T. v. Lentz, 212 S.W.3d 123, 2007 WL 57976 (Mo.). In this case the unwed father knew of the birth of the child but denied that he was the father. After the child was relinquished by the mother and placed with the prospective adoptive parents, he decided to assert a claim. He then registered late with the putative-father registry and requested that the mother (who had already relinquished her rights) consent to placing his name on the birth certificate. He later filed a paternity action and sought to intervene in the adoption proceeding. In spite of the fact that he neither filed with the registry in a timely fashion nor met any of the requirements of a person who was entitled to consent to the adoption, the court permitted him to proceed with the paternity petition. In a similar holding, the Illinois Supreme Court in J.S.A. v. M.H., __N.E.2d__, 2007 WL 289829 (Ill.), found that in spite of his failure to file with the registry, a putative father could nonetheless assert a claim because he filed his petition before there was any adoption pending. An unwed father in Indiana ( Hicks v. Shuck, 856 N.E. 2d 791 (Ind. Ct. App 2006)), was not as successful in evading the purposes of the putative-father registry. The Indiana statute provides that a putative father who fails to comply with the requirements of the statute is deemed to have waived his ability to contest to the adoption. He also is precluded from attempting to establish paternity through another route as the fathers in Florida and Missouri were permitted to do. His attempt to establish paternity by filing a suit on behalf of the child was rejected by the court. In New Mexico, the state Supreme Court has agreed to review a decision of an appeals court that also seems to undermine the purpose of the registration requirements. Helen G. v. Mark, J.H., 145 P.3d 98 (N.M. Ct. App. 2006), cert granted, 146 P.3d 810 (N.M. 2006). Barbara Handschu is a solo practitioner with offices in New York City and Buffalo, N.Y. She can be reached via e-mail at [email protected]. Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City School of Law. She can be reached at [email protected].

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