Parental Rights: Unmarried Fathers and Adoption

Without establishing paternity, the unmarried father of a child is not a legal father. He cannot make decisions for the child. He also has no right to object to the adoption of the child.

At the birth of their child, married parents share parental rights and responsibilities for their child. They will place their names on the child's birth certificate. They do not need further legal processes to establish custody rights. They can start making important decisions for the child immediately. This includes decisions about the child's health care and upbringing. If the parents decide to place their child for adoption, they must provide legal consent for the adoption to proceed.

Today, some 40% of children are born to unmarried mothers. In these cases, the birth father may or may not be known or involved. Most state laws will name the unmarried mother as the sole legal custodian of the minor child. An unmarried father of the child must act to establish his legal rights. This needs either a voluntary acknowledgment of paternity or filing a paternity action. Placing the unmarried father's name on the child's birth certificate does not establish paternity.

The following article gives an overview of the parental rights of unmarried fathers and their impact on adoption.

Acknowledging Paternity

Establishing paternity is an essential step in an unmarried father's demonstration of commitment to raising a child.

If a single father wants to have a say in an adoption plan or adoption decision, he should establish paternity as soon as possible. Failure to establish paternity can prevent or delay the biological father of the child from gaining parental rights. Waiting too long to do so could be seen as a lack of commitment to parenting the child. Sometimes, it may be wise to establish paternity before the child's birth. For example, an alleged father may act quickly when the mother shows a plan to put the child up for adoption early in the pregnancy.

Paternity establishment can be voluntary. When both parents agree, they may sign an acknowledgment of paternity affidavit. A notary will confirm the identity of the parents signing the affidavit. When litigation is pending, the parties will file the affidavit with the correct state agency or the court. Such an acknowledgment of paternity is usually enough for the child support agency to establish a child support order. It may also allow a court in a parentage action to determine child support and other matters, such as custody and parenting time.

Some states have a putative father registry. A putative father is the same as a presumed father. When a father registers in the putative father registry, he is putting others on notice of his claim to be the father of a child. The putative father registry is a confidential register that includes acknowledged fathers and court determinations of paternity.

Paternity Proceedings and Genetic Testing

When unmarried parents do not agree or cooperate, either party may file a paternity action in family court and seek a paternity test. The state may also request paternity proceedings when the child is a beneficiary of state benefits (e.g., TANF or Medicaid). Keep in mind that paternity laws differ by state. You may seek legal advice on the law of your state.

In a paternity hearing, the court will likely order genetic testing to confirm whether the alleged father is the biological father of the child. The court order may require the alleged father to appear for a blood or saliva DNA test. The biological mother may also need to appear with the child for testing. The threshold for DNA testing results may vary by state. Genetic test findings usually have a 90-99 percent accuracy when identifying the child's father.

The court and the parties will review the findings from the DNA testing. The court may then issue a finding of paternity. If the court does so, it will also direct the state bureau of vital statistics to add the father's name to the child's birth certificate.

Once the father has established paternity, he can object and not provide consent in a later adoption proceeding.

If the father has filed a motion to prove parental rights, the court may schedule hearings to decide the parents' custody and visitation rights.

Timing and Unaware Fathers

Fathers who do not know of their children until after they are born can find themselves in difficult situations. Most states do not provide a long waiting period before a birth mother's infant adoption can proceed. Courts may find that fathers who were unaware of their child may not later object to the child's adoption, particularly when the father's lack of knowledge occurred due to personal fault.

The facts of each case will differ. But, to have the best chance to be heard in adoption decisions, an unmarried father should not wait. In cases where paternity concerns may be in play, a father should contact a partner early in her pregnancy. Confirming the likelihood of fatherhood early will go a long way in establishing a father's rights.

Unmarried Fathers and Adoption: Commitment to Parenting

Beyond establishing paternity, unwed fathers must meet many requirements in showing a commitment to parenting. A court may not find merit in a father's objection to the adoption of his child in cases where there was little or no contact between father and child.

Courts want an unmarried father to prove his strong relationship with the child before they recognize his constitutionally protected paternal rights. Establishing a committed parental role includes helping pay pregnancy, birth, and child support expenses after delivery. Some courts consider the fitness of the father to parent when determining commitment to parenting. Fathers who have not provided financial support may fail to show such a commitment. Fathers who take no interest in building a relationship with a child after birth show little commitment to parent. Fathers who show a pattern of negative behaviors such as alcohol or drug abuse may not convince a court that they have more than minimal ties to their child.

The degree to which an unmarried father has the opportunity to play a parental role in the child's life often varies. But, taking steps to form a parental relationship can show reasons a father should be heard in adoption and other parental decisions.

Objecting to Adoption

When a child's mother or a state with legal custody of a child files an adoption action, it must join all appropriate parties with legal rights to the child. These interested parties must provide valid consent to the adoption for the adoption to proceed. Depending on state law, fathers who do not consent to the adoption of their child may file an objection to the adoption in court or in some cases, with their state's health and human services department.

If a father has established paternity or is otherwise listed in a putative father registry, the court will notify him of adoption proceedings involving the child. Upon receiving notice, he may file an objection and seek a hearing before the court. Often, an objection to adoption must include a show of intent to petition for custody of the child in a short period.

The court will hold a hearing with all relevant parties before approving an adoption. It can weigh the facts and circumstances of any objection filed by an unmarried father and issue a ruling. In its decision, the court must determine what is in the best interests of the child. The court may deny adoption if the father can show substantial ties and a commitment to parenting the child.

In contrast, if the unwed father has waited and has not filed a timely action to establish his legal rights, the court may reject his later efforts to remove the child from the adoptive parents.

What Are Your Rights as an Unmarried Father? A Lawyer Can Help

If you are struggling with establishing paternity and asserting your parental rights, contacting a lawyer is wise. In cases where a possible adoption of the child is expected or possible, an unmarried father needs to act quickly. If you have questions about establishing paternity or the adoption process, consider speaking to a family law attorney in your area.

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Can I Solve This on My Own or Do I Need an Attorney?

  • You can represent yourself in a paternity case, but establishing paternity can be emotionally and legally complex
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An attorney can explain the legal procedures and consequences of establishing paternity. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

If you are in the midst of a paternity case, it may be an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and provide for your children. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.

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