Popular, but inaccurate, term for the genetic father of a child; usually a term applied to the biological father of an adopted child.
In the third quarter of the 20th century, the issue of unmarried birthfathers and their rights in adoption came to the forefront in many parts of the United States. It has been argued that if a biological mother does not wish to parent a child, then the child should be placed with the biological father, unless he specifically states that he does not wish to parent the child. Also, because a mother's fitness to parent a newborn baby is rarely challenged, fathers argue that neither should their fitness have to be proven; it should be assumed, absent compelling evidence otherwise. This is the position taken by Toni L. Craig in her article for the Florida State University Law Review in 1998. In the opinion of Craig, "When an unwed father contests the at-birth adoption of his child, the federal Constitution requires application of the biological rights doctrine."
Others worry about CHILDREN'S RIGHTS and say that children should not be treated as if they were the property of the biological parents but that their best interests should and must be considered in contested adoptions where the child is already in the adoptive home. This is a concern of Marcus T. Boccaccini and Eleanor Willemsen, Ph.D., in their article on contested adoptions for the St. Thomas Law Review in 1998. Say the authors, "Children have protected constitutional rights to their established intimate family relationships, conventionally known in constitutional law as 'liberty interests.' In contested adoption cases, these liberty interests should have priority over the rights and interest of their biological parents."
They also argue that in "some circumstances, the mother may have excellent reasons for not naming a father. Based on the constitutional right to privacy, it has been suggested that a mother's right to remain silent outweighs a father's right to notice."
Some also argue that birthfathers should not be given veto rights over an adoption because they may use their parental rights as a psychological weapon to maintain contact with the birthmother.
Some states have taken the position that notice of a planned adoption must be given to a birthfather. Others have taken the position that "notice" occurs at the point of sexual intercourse, when a man should know that he may have conceived a child with a woman. Others rely on whether or not a birthfather has registered with a state putative fathers registry (see PUTATIVE FATHER REGISTRIES) to determine if his parental rights may be exercised. Some states also look at whether the birthfather provided financial support to the birthmother during her pregnancy. If he did not, it is assumed he was not and consequently is not sufficiently interested in the child.
If notice is required and the birthmother does not know who or where the birthfather is (or says that she does not know), in some states, legal notices or advertisements must be taken out to protect the birthfather's interests. If he does not come forward, it is then assumed he is not interested in the child and the adoption can go forth.
Problems have arisen when birthmothers have lied about who the birthfather is, and some states have yet to resolve complex issues, such as how long does a biological father have to come forward and claim his parental rights, assuming he was denied knowledge of the child? If he is in a state where he is entitled to notice, this may be a problem. It should be noted that such situations occur infrequently and by no means are as prevalent as many adopting couples fear.
Of course, not all birthfathers are opposed to adoption, and many willingly sign consent to the adoption or sign a document or statement (sometimes called a waiver) that disclaims any personal interest in the adoption. Some states allow birthfathers to sign consent to an adoption before the child is born. This is known as PREBIRTH CONSENT.
Whenever possible, social workers and/or attorneys obtain information about and from the birthfather, not only to protect his legal rights, but also to ensure that important medical and genetic background information is provided to adoptive parents.
If birthparents are married, the birthfather must usually consent to an adoption along with the birthmother. In almost all cases, the married man is presumed to be the biological father and is also the LEGAL FATHER.
The birthfather rights issue came to the forefront most dramatically in recent years. In 1993, an Iowa birthfather successfully challenged an adoption by a Michigan couple after a battle of several years (In re Claussen). The case became publicized throughout the United States as the adoptive parents openly struggled with the birthfather over custody of the child the adopters had named "Jessica DeBoer."
In this case, the birthmother had named one man as the father of her child and he had signed consent to the adoption. After the child was placed, the birthmother stated that the biological father was really another man. The actual birthfather sought custody and won his court struggle when the child was about three years old. She was placed with him and the birthmother, whom he had married.
Another case, known popularly as "the Baby Richard case" in Illinois, also received national notice, primarily because of stories written by Chicago columnist Bob Greene and a nationally prominent author, Dennis Prager. In this case, a birthmother placed a child for adoption and told the birthfather the baby had died. She later admitted the adoption and the birthfather actively sought custody. He prevailed when the child was about three years old. The birthparents later divorced and the child purportedly is being reared by his noncustodial birthmother.
Because these two cases received an unusually high level of media attention, nearly all state legislatures subsequently reviewed their laws on birthfathers, and many new laws were enacted. Some states created putative father registries, while other states created laws allowing for prebirth consent from a birthfather. Some states required the birthfather to appear in court within a certain timeframe or to submit documents to a particular court or organization in order for paternity to be established.
History of Birthfathers' Rights
Prior to 1972, unwed birthfathers were rarely involved in adoption proceedings, and a birthmother could decide to place her child for adoption or parent the child as she chose. It was generally presumed unwed fathers had no interest in parenting an illegitimate child or, if they did, would make unfit parents.
Married men whose wives desired to place their children for adoption were (and remain) in a different category. They must consent to an adoption of their child unless parental rights are lawfully terminated or special circumstances are met.
Supreme Court decisions about unmarried fathers point to a trend indicating the court is clearly interested in whether or not the birthfather has or had a parental relationship with the child and the nature of that relationship. (Supreme Court cases are summarized at the end of this essay.)
Such groups as the Committee for Mother and Child Rights argue that birthmothers considering adoption may feel compelled to parent a child if the birthfather says he will contest the adoption. Rather than allow the birthfather to rear the child and fearing the court would allow him to parent the child if the birthmother sought adoption but the birthfather protested, the birthmother might feel unable to make an adoption plan.
In addition, although the birthmother considering adoption for her child usually no longer has a relationship with the birthfather, if she elects to rear the child herself rather than have the birthfather rear the child, she may face the prospect of maintaining an unwanted relationship with the birthfather for the next 18 to 21 years as the child grows up. The birthfather often presses for visitation rights and other parental rights especially if, as is frequent, he is required to provide financial support for the child. In addition, if the birthfather decides to parent the child, he could successfully sue the birthmother for child support.
The birthmother may suffer severe economic stress. There is no guarantee that the birthfather who presses the birthmother to parent the child (or who alleges he would like to parent the child) is in a financial position to provide the necessary economic support. The birthmother may be compelled to apply for public assistance.
Susan Sapp has written recommended statutes on the issue, combining various existing statutes, in her article for the Nebraska Law Review. These set forth the duties of the person who notifies the biological father about the child, the appointment of a guardian ad litem for the child, the formal notice of termination of parental rights by publishing information (usually in a newspaper) and the termination of the rights of the unknown father or known father who fails to appear at a paternity hearing.
Important U.S. Supreme Court Cases
In 1972, the landmark case of Stanley v. Illinois was heard by the U.S. Supreme Court. Stanley was an unwed father who had lived with the birthmother periodically for 18 years and who had a parental relationship to their three children.
When the birthmother died, the state sought to remove the children from Stanley's custody and denied him a hearing based on his nonmarital relationship with the deceased and the out-of-wedlock status of the children.
Stanley ultimately won his case and custody of the children because the court believed he had been denied due process. The court was sympathetic to Stanley's case because he had maintained a relationship with his children and had acted in a paternal manner. In this case, the court apparently strove to maintain existing family units.
The next landmark birthfather case was Quillon v. Walcott, which the Supreme Court heard in 1978. Quillon was an unmarried father whose lover later married. Their child lived with her mother and stepfather as a family unit, and Mrs. Walcott's husband sought to adopt her.
Quillon attempted to block the adoption of the 11-year-old child. But he had never taken responsibility for the child, nor did he seek custody. He lost his case.
The next major case was Caban v. Mohammed in 1979. The unmarried couple had lived together for five years and parented two children. Ms. Mohammed later moved away and married, and her husband petitioned to adopt the children. New York law held that a birthmother could block an adoption but not a birthfather, so there was no bar to this stepparent adoption.
The Supreme Court rejected the distinction between birthmothers and birthfathers; however, very important to the court was the fact that the children were older and were known to and by the father. In addition, Caban had established "a substantial relationship" with his children and had admitted paternity. (He was listed on the birth certificates as the father.) As a result, Caban was successful in blocking the adoption of his children.
The case of Lehr v. Robertson was another case of birthfather's rights and was heard by the U.S. Supreme Court in 1982. Mr. Lehr had never provided financial support to Ms. Robertson or the baby, nor did they live together after the child's birth. His name was not listed on the birth certificate, and he never registered with New York's Putative Father Registry.
Robertson later married and her husband sought to adopt the child. Lehr tried to block the adoption and asked for visitation rights. The court rejected Lehr's claims and held that "the mere existence of a biological link" does not guarantee due process unless the unwed father "demonstrates a full commitment to the responsibilities of parenthood" and is involved in the rearing of his child.
These cases were all interesting to birthfather rights advocates, but not until 1988 was an adoption case involving unrelated adoptive parents scheduled. Edward McNamara was a birthfather who had conceived a child as the result of a casual affair. When he learned the birthmother had placed the child for adoption in 1981 through a San Diego, California, county agency, he began his fight to stop the adoption. (In re Baby Girl M.)
While he began his legal battle, the agency placed the baby with Robert and Pamela Moses, an adoptive family selected by the birthmother.
When his case was heard initially, the court decided it would be in the "best interests" of the child for the child to remain with the adoptive parents. McNamara continued to fight until his case was heard in 1988, seven years after the child's birth. He sought to have himself declared the legal father and to obtain visitation rights with the child. A California court denied his claim, contending that the parental rights of a fit parent could be terminated in the best interests of a child.
The Supreme Court dismissed the case and said that no federal question had been raised.
The most recent Supreme Court case involving birthfathers as of this writing was Michael H., and Victoria D., Appellants v. Gerald D. (June 13, 1989), wherein an alleged birthfather and the child's legal father were in conflict.
The mother had had a relationship with an unmarried man and had a child. Because she was married, the LEGAL FATHER was presumed to be her husband. The alleged father did have a relationship with the child; however, the mother elected to return to her husband. The alleged father sued for visitation rights.
The Supreme Court found the presumption of the legal father's paternity in this case as irrebuttable, and the requests for visitation and a continuing relationship was denied. (However, in many states the contention of paternity based on marriage to the child's mother may be rebutted and may also require proof, such as genetic testing.) The court also stated that had the husband or wife wished to challenge the law, that request would have been considered; however, the unmarried man who alleged paternity had no standing.
Marcus T. Boccaccini and Eleanor Willemson, Ph.D., "Contested Adoption and the Liberty Interest of the Child," St. Thomas Law Review 10 (winter 1998).
John Hamilton, "The Unwed Father and the Right to Know of His Child's Existence," Kentucky Law Journal 76 (1987-88): 949-1009.
Joan H. Hollinger, editor-in-chief, Adoption Law and Practice (New York: Matthew Bender, 1989).
"Michael H. and Victoria D., Appellants v. Gerald D.," United States Law Week, June 13, 1989, 4691-4705.
Susan Kubert Sapp, "Notice of Relinquishment: The Key to Protecting the Rights of Unwed Fathers and Adoptive Parents," Nebraska Law Review 67: 383-407.
Jo Lynn Slama, "Adoption and the Putative Father's Rights: Shoecraft v. Catholic Social Services Bureau," Oklahoma City University Law Review 13 (spring 1988): 231-255.
Sue Wimmershoff-Caplan, attorney for proposed Amici Curiae, "In the Matter of the Adoption of A Child Whose First Name is Raquel Marie," Court of Appeals, State of New York, March 5, 1990.
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©2000 by Christine Adamec and William Pierce, Ph.D. Reprinted from The Encyclopedia of Adoption, 2nd Edition (2nd Edition) with permission of Facts On File, Inc.