nn Birth Fathers' Rights
Our ApproachNewsInfo You Should KnowTalk SoupLinksContact Us

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:

  1. 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.
  2. 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.

  3. 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.


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.

<<Previous Page

Back to Top
Back to Info

[Our Approach ][ News ][ Info you should Know ][ Talk Soup ]
[ Links ] [ Contact Us ]

Special Information For Birth Mothers. Please Click Here.