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Invisible Rights of Some Fathers in Adoptions

Is a Father’s Consent Necessary?

Adoption law has a long and uneasy relationship with biological fathers, and our state’s paternity statutes are a messy patchwork of old laws defined in part by marital status. The law presumes a married man is the legal father of the child born to the wife.  If a parent is not married, a father (or mother) must prove paternity of a child if they do not formally agree.

In an adoption case, a father’s rights include either giving consent to, or objecting to, the adoption. His consent is not required if he has been convicted of rape resulting in the birth of the child, or if one of several other unique exceptions apply. Otherwise, on paper at least, a father has a legally protected status as a parent, and his consent is necessary for an adoption to proceed.

If for any reason the father is not a part of a child’s life or he has failed to participate in the pregnancy and birth phases, his rights are limited. This focus of this article is rights in those circumstances, when the parents are not married, don’t live together and no court order is in effect.

The Legal Debate: Right to Object

There is strong and heated debate in the legal community about what a man must do legally, and how quickly he must do it, to protect his parental rights in adoptions. The standards change as the cases are appealed to appellate courts. My own interpretation of the current law in effect as of January 2015* is that a father must somehow know the mother is pregnant and immediately act accordingly, even if he is unaware of an actual pregnancy or no longer knows where the mother is after one isolated act of intercourse with her. It appears the notice of his right to object to the adoption is created merely because he had intercourse with a woman because he knows an act of intercourse might result in pregnancy.

Supporters of the current law say the most important policy is to create a permanent home with adoptive parents as soon as possible, especially if a man has not exercised his rights and responsibilities related to the mother and/or child. Critics of the law call it the “sex is notice” [of a pregnancy or birth] law, arguing the law is unfair to fathers who may not be aware of their rights until after those rights are extinguished. Sometimes, the parental rights not exercised by fathers are denied before the child is even born, if the man can even show he is the father.

Rights of Fathers During Pregnancy

During the pregnancy, a man has no legal rights at all until a baby is born. He cannot object to, or consent to, abortion. Nor can he file any child custody/visitation claim until there is a surviving child delivered. Even a claim to prove paternity cannot be filed until after a child is delivered. As I interpret adoption laws in North Carolina, a father who is not married to (or living with) the mother may become a bystander of the legal process until it is too late.

Pre-Birth Determination of a Fathers’ Rights to Object

If at least six months have passed after the date of conception, the pregnant mother, an adoption agency or a person the mother has chosen to adopt the child may file a request for the court to rule on whether the father must give his consent to the adoption. However, fathers are denied the right to file this request on their own behalf.  If he has been served with legal notice of this proceeding, the father does have the right to respond and be heard by the court within a specific time period. A father cannot file a paternity claim, proving he is the father, until the child has been born.

Fathers’ Rights to Object After a Child is Born

Unless the father’s consent was deemed unnecessary at the pre-birth determination or he consents to the adoption, he is generally entitled to be served with legal notice of the intended adoption itself. Notice allows him to file various claims, including a request that the court recognize his right to object to the adoption.

One of the most controversial examples of when a court will protect the father’s right to object involves actions he must take before the adoption petition is even filed. One such example is acknowledgement and support by the father before the adoption petition is filed or before he even knows the woman is pregnant. He is entitled to give or withhold consent when he has “acknowledged his paternity” and he is “obligated to support the minor under written agreement or by court order.” Or, he can acknowledge paternity and provide “reasonable and consistent payments” to the mother and/or child. The law doesn’t say what amount of support is enough, or what proves he has “acknowledged his paternity.” The court decides whether the father has acknowledged the child on a case-by-case basis.  Acknowledgment may be done in writing, orally or even by a father’s acts/behavior.

Paternity and adoption laws are complex and change frequently. Only a small handful of specific situations are mentioned in this article. For legal advice about father’s rights and/or adoptions in North Carolina, consult an attorney who will analyze your particular facts and give you legal advice based on those facts.

 

In re: Adoption of S.D.W., 758 S.E.2d 374 (2014). See opinion and strong dissent of several justices on constitutional grounds.  N.C. Gen. Stat. 48-3-601.

 

 

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