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Birth Fathers' Rights
However, if the alleged birth father does claim parental rights within the time limit provided by
the particular jurisdiction, the court will hold a hearing to determine:
- If, in fact, this individual is the child's biological father and if so, whether or
not he shall be elevated to the status of a presumed father. In the event that he is the
biological father but is denied the status of a presumed father (which usually occurs if
he had never married or lived or supported the child or the mother) the individual will have
the right to a hearing. At the hearing, the court determines whether or not it is in the
child's best interests that the alleged father retain his parental rights or that the
adoption be allowed to proceed without his consent. Some considerations in determining the
best interests of the child are the efforts made by the father to obtain custody, the age
and prior placement of the child as well as the effects of a change in placement would
have on the child.
- NOTE: In a California Supreme Court case entitled Adoption of Kelsey s, "1992", the court held
that the distinction between the alleged and presumed fathers is constitutionally invalid when
applied to an unwed father who has sufficiently and timely demonstrated a full commitment
to his parental responsibilities which shall include emotional, financial and otherwise.
Therefore, in California, if an alleged birth father convinces a court that he has made
a sufficient, timely and full commitment to the child, he will maintain the same rights
as a presumed father. This means the adoption could not proceed unless he consents or
his rights are terminated, usually for reasons as set forth in Family Code S7820 et.seq.
- On or about July 31, 1995, the California Supreme Court in the case known as Adoption
of Michael H, stated that failure to commit to parenthood during pregnancy deprives an
unwed father the right to veto his child's adoption.
Essentially, the California Supreme Court ruled that an unwed biological father's failure
to make a full commitment to parenthood during the mother's pregnancy, defeated his
constitutional right to veto his child's adoption by another couple.
In Michael H, the birth father urged the birth mother to have an abortion. When she
declined to do so, they agreed to place the child for adoption. Shortly thereafter, the
birth mother met the prospective adoptive parents and the birth mother disassociated
herself from the birth father who drank, used drugs and attempted to commit suicide.
Birth mother then moves from Arizona to San Diego, where she gave birth to Michael
H. Michael was placed directly with the prospective adoptive parents. At this point,
the birth father sought custody of the child and the prospective adoptive parents petitioned
the court to terminate the birth father's status. The trial court found that it was in
Michael's best interest to terminate the birth father's parental status and allow the
adoption to proceed. The birth father appealed.
The appellate court reviewed the case and sent it back to the trial court with
instructions to determine whether or not the birth father had demonstrated a commitment to
his parental responsibilities. The trial court concluded that the birth father did
evidence responsible conduct although it was not until after the baby was born and,
therefore, the adoption should not proceed without his consent.
Now, PAPS appeal. The appellate court agreed with the trial court. PAPS appeal to the
California Supreme Court. The California Supreme Court stated that the birth father did
not take sufficient steps to transform his potential parental relationship with Michael
into a constitutional right to block the third party adoption. He did not demonstrate a
full commitment to parenthood while the birth mother was pregnant. This is evidenced in the
fact that he first tried to persuade to abort the baby and then agreed to place the child
with a family for the purposes of adoption. He failed to indicate his desire not to
proceed with the adoption plan until two weeks after the child was born. Under these
circumstances, the birth father has no constitutional right to veto the adoption. In
fact, the California Supreme Court decision, written by Justice Mosk and joined in by
all other Justices except Justice Kennard, emphasized the language in the Kelsy S case
that the birth father must accept his responsibilities "promptly", and further stated:
"We conclude that an unwed father has no federal constitutional right to withhold consent to
an at-birth, third party adoption under our decision in Kelsy S.... unless he shows that
he promptly came forward and demonstrated as full a commitment to his parental responsibilities as
the biological mother allowed and the circumstances permitted within a short time after he
learned or reasonably should have learned that the biological mother was pregnant with his
child."
This is a very important case in the area of birth father's rights and one that goes a long
way to reducing fears prospective adoptive parents may have regarding birth fathers, (at least
in California.)
It has been the experience of this writer that most fathers falling into the alleged birth
father category consent or allow their rights to be terminated by failing to file a paternity
action after being served with the Notice of Alleged Paternity.
Whether a birth father will consent or whether or not one must use one of the available avenues
for terminating his rights needs to be considered by any prospective adoptive parent(s)
before a final commitment is made to proceed with an adoption plan.
Caveat
The information contained in this article is meant to provide the reader with an
overview of the subject matter. The laws relating to birth fathers rights will vary
from state to state and the advice of counsel should be sought. Should you entertain any
questions, please feel free to contact Marc Widelock at 1/800 - 67STORK.
M.D. Widelock is a California attorney whose practice is limited to independent adoptions
and reproductive law. Mr. Widelock has served as a member of the California State Bar
Standing Committee On Adoptions (South) and is a member of the American Academy of
Adoption Attorneys. Mr. Widelock is a law professor and his firm has provided commentary
on family law and related issues to CNN, BBC and Current Affair. He has helped hundreds of
people create families throughout the United States by making the adoption experience a
good one for all.
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