encyclopedia of adoption

legal father

The man legally recognized as the father of a child, irrespective of whether he is the biological father or not. When a couple is married, and the wife bears a child, the law generally presumes her husband is the biological father of the child, even though he may not be. (See birthfather for more information on the 1989 challenge to this status, which the U.S. Supreme Court denied.)

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In a few states, this presumption cannot be challenged, and the U.S. Supreme Court has upheld such laws (Michael H. v. Gerald D., 57 U.S.L.W. 4691, June 13, 1989). In many states, however, the presumption of paternity can be legally challenged with strong evidence, such as genetic testing. If there is no challenge to the legal father's status, then it stands.

Also, in about half the states, the husband is specifically described as the legal father in the case of artificial insemination.

As a result of statutes regarding legal fathers, if a married woman wishes to plan adoption for her child, her husband, as the presumed legal father, must also sign the consent for adoption forms. Some agencies and attorneys may seek consent from the alleged biological father as well as the husband if the mother states that the child's father is someone other than her husband.

If the name of a man not married to the child's mother is listed on the birth certificate of a child with his consent and if the mother is not married to someone else, then he is the presumed father. Some states, however, permit rebuttal of this presumption by proof (usually genetic tests) showing that the presumed father is not the biological father.

Adoptive fathers become legal fathers upon finalization of an adoption when a new birth certificate is issued with the adoptive father's name appearing as the father. (See also SEALED RECORDS.)

Joan H. Hollinger, editor-in-chief, Adoption Law and Practice (New York: Matthew Bender, 1989).

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