Birth Father Rights
It is important for all parties involved in an adoption to understand the rights of any potential birth fathers. Birth father rights vary widely state to state. In most states, the rights of birth fathers often are different than the rights of birth mothers. For example, in many states, the parental rights of a birth father can be addressed prior to the birth, whereas the parental rights of birth mothers cannot be addressed until after the birth.
What kind of categories can men fall into to be considered a “birth father?” This may seem like a strange question, but there are different categories for potential birth fathers. And a man may have different rights depending on the category into which he is placed. Here are the main categories:
- Married or Presumed. If the birth mother is married, then generally the law creates a presumption that her husband is the biological father, making him a presumed birth father. A presumed birth father may have to consent to an adoption or in some cases, sign a waiver or denial of paternity in order for an adoption to proceed. Alternatively, if they have been separated and the husband is clearly not the father, then in some cases the birth mother can sign an affidavit that she did not have intercourse with her husband during the conceptive period. Some states require that notice of an adoption be provided to a presumed father. If the presumed father is in fact the biological father, then generally he will be entitled to the most rights such as actual notice of the adoption and the right to consent or object.
- Acknowledged. In other cases, a birth mother may have listed a father on the birth certificate, and that man may have signed an affidavit of paternity (or similar document) at the hospital putting him on the birth certificate (even if they are not married). This makes that man an acknowledged father. In some states there are additional ways besides being put on the birth certificate that a biological father might be found to be acknowledged, such as the child is given his last name and placed on his health insurance or is declared on his tax return as a dependent. An acknowledged father often is entitled to more rights such as actual notice of the adoption and the right to consent or object.
- Adjudicated. If a court has declared a man the biological father of a child, based on DNA testing or other evidence, then that makes the man an adjudicated father. Like an acknowledged father, he often is entitled to more rights such as actual notice of the adoption and the right to consent or object.
- Putative. A common category that birth fathers fall into is the putative birth father category. A putative father is not married to the biological mother, has not been listed on the birth certificate or otherwise been officially acknowledged as the father, and has not been adjudicated (found by a court) to be the father. In some cases, a birth mother may not be sure who is the biological father of the child, and there may be more than one possible biological father. A putative father typically has the least amount of parental rights in an adoption unless there is a putative father registry available and that man registers with the registry (or registries if several states are involved). In some states, if the identity and whereabouts of the putative father are known, they may be entitled to notice of the adoption. In other states, a putative father may be entitled to full rights such as actual notice and the right to consent or object. However, in most states with putative father registries, they are not entitled to notice unless they have registered. In some states, a birth father also may change his “category” from putative to adjudicated by filing a paternity action. Find more information about putative father registries.
What rights do birth fathers generally have? Depending on what category he falls into, as described above, the rights of a birth father will vary. And again, birth father rights vary widely state to state. As a general rule, the rights of a presumed, acknowledged, or adjudicated birth father will be more extensive than the rights of a putative birth father. This is because the men in the first three categories have generally taken affirmative steps to establish themselves as a parent before an adoption takes place. However, if any birth father wants to be involved in, or object to, an adoption process, it is important that he speak to an attorney as soon as he is alerted to the pregnancy and the possibility of an adoption plan and find out what he must do to protect his rights. In some cases, a putative birth father may have a very limited amount of time to register with a state putative father registry if he wants to receive further notice of any adoption proceedings or participate in the adoption plan. Find more information about putative father registries.
What if a putative birth father doesn’t know about the pregnancy? A putative birth father’s lack of knowledge about a pregnancy is not generally grounds for disrupting or reversing an adoption when all other appropriate legal steps have been taken to address the putative birth father’s rights. The concept of having a putative father registry in place is that any man who has sex with a woman is then automatically on notice that he might be a father and that the child might be placed for adoption. In other words, sex is notice of potential pregnancy. In some states with putative father registries, the biological mother is under no duty to even tell the man that she is pregnant and that the child might be his child. Also in some cases, the birth mother may not know who the birth father is, or may not know how to find or contact him, and in those cases, there may be no way for her to inform him of the pregnancy prior to the adoption. State laws vary greatly regarding what steps must be taken to address the rights of putative birth fathers. Any man who has reason to believe he may have fathered a child should familiarize himself with his state laws if he wants to ensure his right to participate in any potential adoption plan for his biological child.
What about cases where a birth father is involved in the adoption plan? Generally, when a birth father is involved in the adoption plan, either along with the birth mother or on his own (for example, where the birth mother is deceased or has disappeared), then he will have all of the same rights as a birth mother. These rights may include the right to select or help select the adoptive family, the right to consent to the adoption (and in some cases may have the right to revoke that consent up to a certain time), and the right to a post-adoption contact agreement with the adoptive family. Find out more about Birth Parent Rights.