Determining a child’s paternity is essential for establishing a variety of legal matters involving the child. This includes determining child custody, obligations for child support, inheritance rights, and visitation rights. The rights afforded to biological fathers depend upon the legal categorization of the father. These categorizations may include:
- Putative Father: This term refers to the alleged father of the child. A putative or alleged father is most commonly defined as a man who alleges himself to be the biological father of the child, but has not legally established his paternity;
- Unmarried Father: According to the law, unwed fathers are treated differently than married fathers in regards to paternity rights. In general, states define an unmarried father as the child’s biological parent who was not married at the time of the child’s birth. The paternity of unmarried fathers is not presumed. This means that unmarried fathers must sign an acknowledgement of paternity in order to legally establish their rights as a child’s father. Once a father has been determined to be the father of the child, they will have the full legal obligation of caring for the child, such as by paying child support; and
- Presumed Father: This is typically the person presumed to be the father of the child due to meeting certain conditions. These conditions include:
- When a child is born during or shortly after a divorce in which the husband of the marriage is considered to be the child’s father;
- When the presumed father acknowledges the paternity of the child voluntarily; or
- When the presumed father openly acts and behaves as if the child were his own, such as by receiving the child into his home.
Once paternity has been established, the father has the right to child visitation and custody. If a father has custody of their child, they will be able to make decisions regarding the upbringing of the child.
When going through the adoption process, a biological father has a constitutional right to be notified of paternity for a child who is being put up for adoption. If he believes the adoption should not proceed, and would like custody of the child, he has the right to be heard in court and initiate a paternity proceeding. Under such proceedings the father may be given custody of their child once he establishes paternity and proves that he can care for the child on his own.
Other rights granted to the biological father throughout the adoption process include:
- The right to participate in the adoption planning;
- The right to participate in interviewing prospective parents;
- The right to receive limited financial support for pregnancy and birthing medical expenses, if applicable;
- The right to select the adopting family; and
- The right to receive counseling during and after the adoption process.
How Can the Biological Father’s Rights Be Protected During the Adoption Process?
One of the main biological parental rights is the right to consent, or the right to object, to the adoption of the child. In general, both biological parents must consent to an adoption if they have met certain requirements that establish them as the child’s biological parents. Therefore, courts grant both biological parents the right to consent or object to adoption.
If the child’s biological father is not known or cannot be located, many states require that some sort of public notice be given in order to inform all people claiming to be the child’s biological father of the pending adoption. This typically takes the form of a notice published in the legal advertising section of the local newspaper.
Many adoptions occur without the involvement of the child’s biological father. In fact often biological father’s do not receive any notice or counseling, have the option to consent or reject, or are involved in selecting the adoptive parents. However, this does not mean that they do not have these rights. Every adoption that proceeds without the biological father’s knowledge or consent carries a certain degree of legal risk.
In order to protect the biological father’s rights and potentially avoid legal issues later on, the child’s biological mother should:
- Inform the child’s biological father of the adoption plan, and ask if he is interested in participating in the adoption process and proceedings;
- Attempt to locate the missing biological father and inform him of the plan for adoption; and
- Obtain consent to proceed with the adoption process from the biological father.
Not every state requires that the biological mother take these steps in order to locate and protect the biological father’s rights. The burden is on the biological father to determine whether he has a child with another person. In these states, the amount of time in which a biological father has to respond to a notification of adoption proceedings varies.
Can a Biological Father Block an Adoption?
Once again, not every state requires the biological father’s consent for an adoption to proceed. It is also dependent upon the relationship between the father and the child, and the relationship between the two biological parents. However, in nearly every state, an adoption cannot proceed without the father’s consent if the biological parents are or were married within a certain amount of time before the child’s birth. If the biological parents were not married, but did live together at the time of the child’s birth or within a certain time before, some states require the father’s consent.
If the biological parents of the child were never married and never lived together, most states do not require the father’s consent. As previously mentioned, fathers are given notice of the intent to place the child for adoption, and if he does not challenge the adoption, his parental rights to the child will be terminated. Should he challenge the adoption, a hearing will be held in order to determine whether the adoption is in the child’s best interest. In order to block an adoption, the biological father must do the following:
- Establish Paternity: The father must file a court action in order to establish his parental rights by proving paternity through a DNA paternity test;
- Commit to the Child: Most states do not allow the biological father to block the child’s adoption unless he has taken every reasonable measure to accept his responsibilities to both the mother and the child; and
- Make Reasonable Visits and Communicate: The father must be involved in the child’s life by attempting to communicate with them, and regularly visiting them according to the mother’s wishes.
Do I Need an Attorney for an Adoption?
If you are experiencing issues with biological father’s rights, especially as it pertains to adoption, you should consult with a skilled and knowledgeable father rights attorney or adoption lawyer. This type of attorney specializes in the paternity rights area of family law and can help you establish paternity, block an adoption, or represent you in court as needed.