Academic journal article The Review of Litigation

Protecting the Unwed Father's Opportunity to Parent: A Survey of Paternity Registry Statutes

Academic journal article The Review of Litigation

Protecting the Unwed Father's Opportunity to Parent: A Survey of Paternity Registry Statutes

Article excerpt

Introduction

Nature dictates that the mother be present when a newborn baby takes its first breath, but the biological father need not, and often is not. It is clear that the law may compel a biological father to financially support his child, if the mother chooses to keep the baby, but if the mother wishes to place the child up for adoption, the nature and extent of the father's legal rights in relation to the child vary from state to state. If the mother opts for adoption, can the father demand custody? If he does not want custody, must he consent to the adoption? Should he at least be notified that the adoption will occur, or even that the child exists?

At common law the answers to these questions were clear; over time, however, they became less so. At common law, no legal relationship existed between the father and the child if the biological parents were not married.' Gradually, both society and the law began to recognize and protect the relationship between a man and his outof-wedlock child. As this Note will show, modern Supreme Court cases have conferred a degree of legal protection upon unwed fathers; however, the precise nature of an unwed father's legal interest in his child remains unclear.

The question of whether a putative father has a legal interest in his child is of great practical importance for adoption. State laws require that everyone with a legal relationship to the child have his or her rights terminated before an adoption can proceed. Thus, courts must determine whether, under the relevant state statute, an unwed father has a legal interest in his child. If so, the court must afford the biological father at least the statutorily prescribed degree of due process protection before it terminates his legal relationship to the child.

The state's interest in placing children with adoptive parents quickly requires that the nature of the father's rights be determined promptly. However, the Supreme Court has provided little guidance in defining the rights of unwed fathers. States, therefore, have great discretion in devising the legal rules on the subject. Not surprisingly, states differ dramatically in the requirements they impose on an unwed father who wishes to preserve his legal interest in the child.

Many states have addressed this issue by creating paternity registries.2 The idea behind the registries is that the onus of protecting the legal relationship between the father and the child should be on the father himself. When a man registers with the appropriate state agency, he ensures that he will be notified of any petition to adopt the child. The right to notice does not give him full-fledged parental rights; rather, it merely informs him of a hearing at which he can argue that the adoption is not in the best interest of the child. Thus, by simply filing a form with the appropriate state agency, a putative father guarantees his parental rights will not be terminated without his knowledge.

Although the effort required to file with the registry is minimal, the effect of failing to register can be quite severe. For example, New York law provides that if the father does not register, his rights may be terminated, and the child may be adopted without his knowledge.3 The statute assumes that a man who does not bother to file with the registry is not and would not be a good parent. Thus, states use paternity registries as a vehicle not only for protecting the rights of an unwed father, but also for terminating those rights more expeditiously.

This Note will compare different types of paternity registries and examine the roles registries play in determining fathers' rights in adoptions of out-of-wedlock children. Although paternity registries have been adopted by many states, this Note argues that they do not effectively protect the rights of many unwed fathers. Because these statutes ultimately allow complete severance of the father-child relationship, states should modify existing statutes to ensure that they operate fairly. …

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