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Adoption and Fathers' Rights

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Does the Biological Father Have Rights in an Adoption Proceeding?

A birth father has a Constitutional right to be notified that he might be the father of a child who is being put up for adoption.  He also has the right to be heard in court if he believes the adoption should not go forward.  One of the biggest parental rights is the right to consent or the right to object to the adoption of one’s child. Generally, both parents of a child must consent to an adoption only if both parents meet certain requirements that give them the parental right to block or consent to the adoption.

If the father is not known, or the whereabouts of the father is unknown, many states require that some sort of notice be published in the legal advertising section of the newspaper, informing all persons claiming to be the biological father of the pending adoption.

How Can the Biological Father’s Rights Be Protected During an Adoption?

Many adoptions take place without involving the child’s birth father in any way. The birth father does not receive any counseling, notice, have the option to consent or reject the adoption, or even choose the adoptive parents. However, a birth father should have the same rights as the birth mother and has the right to terminate or block an adoption. Every adoption that proceeds without the birth father’s notice or consent carries a degree of legal risks.

To protect a father’s rights during an adoption proceeding, agencies and birth mothers should do the following:

  • Inform the father of the adoption plan and ask him if he is interested in participating in the proceedings.
  • Try to locate the missing birth father and inform him of the adoption plan.
  • Get consent from the birth father in whether he wants to participate in the adoption proceedings and let him know of the full situation.

Some states do not require the mother to take steps in locating the birth father and place the burden on the birth father to locate whether he has a had a child with another person. In states that place the burden on the father, the amount of time that a father needs to respond to a notification of adoption proceeding varies from state to state.

Does the Biological Father Have to Consent to an Adoption?

Whether or not a father's consent is needed for an adoption to go forward can depend on the state, the relationship between the father and the child, and the relationship between the two parents.

  • In virtually all states, a child cannot be adopted without the consent of the birth father if the parents are married, or were married within a certain time period before the birth of the child.
  • If the parents were not married, but lived together either at the time of the child's birth, or within a certain time before the child's birth, some states require consent of the father.
  • If the biological parents were never married and have never lived together, most states do not require the father's consent before placing a child up for adoption.  The birth father is given notice of the intent to put the child up for adoption, and if he does not challenge the adoption, his parental rights are terminated.  If he does challenge the adoption, a hearing will be held to determine whether the adoption is in the best interests of the child.

How Can a Biological Father Block an Adoption?

An unmarried birth father has certain rights to block or terminate a adoption proceeding, but has to meet certain legal requirements:

  1. Establish Paternity: If the biological father of a child wishes to stop that child from being adopted, he must file a court action to establish his parental rights by proving that he is the father of the child through a DNA paternity test.
  2. Commit to the Child: In most states, an unmarried father will not be allowed to block an adoption unless he has taken every reasonable measure to accept his responsibilities toward the child and mother. Giving the mother reasonable can do this and consistent economic support such as paying her medical bills and sending her child support.
  3. Make Regular Visits and Communicate: A father must also be involved in the child’s life by trying to commit to the child by communicating and conducting regular visits.

In Arizona, California, Florida, Georgia, Kansas, New York, Oklahoma and Wisconsin, an unmarried father must attempt to act responsibly to the child prior to the placement for adoption in order to have the right to block the adoption.

Do I Need A Lawyer?

If you are dealing with adoption and parental rights issues, you should contact a family lawyer experienced in the field of family law.  Laws on paternity rights and adoption are complicated and vary from state to state, and an experienced attorney can help you to understand the law.

Photo of page author Kourosh Akhbari

, LegalMatch Legal Writer

Last Modified: 02-19-2018 09:53 PM PST

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