Birth Father Rights in an Adoption

You are pregnant and considering adoption. The best-case scenario is to be supported by the baby’s birth father in going over your options with this pregnancy.  It is unfortunately most common for women to be facing this decision alone. Perhaps since you became pregnant your circumstances have changed and parenting a child is no longer an option for you right now. Maybe you weren’t in a serious relationship or birth control was not available or effective. It’s also possible you may have been assaulted or under the influence and unable to consent.

Any of these scenarios can be devastating. We understand and empathize with you during this difficult time. This is your body; only you have the right to choose to carry the child or terminate the pregnancy. If you are facing this decision alone, you need to know what are your rights and obligations regarding the birth father.  Moore Law for Children can help.

Do you need to notify the birth father of the pregnancy, birth or adoption?

What if you choose to go through with the pregnancy but place your baby for adoption?  Do you have that sole right, or does the birth father have a say in an adoption plan? Does he even need to know you are pregnant? Must you notify him of the adoption plan?  Can he stop the adoption?  Though we hope you have the support of the baby’s father and you both agree with the decision made, there are many possible different scenarios. When you do not agree to an adoption plan, or you do not want to tell him about your adoption plan, you need to know your right and his rights.

Notice to the Birth Fathers:

If you become pregnant and decide to terminate the pregnancy or parent the child yourself, there is no law requiring you to notify the birth father.  However, if you decide to place the baby for adoption, the law requires you notify the birth father of the adoption plan.  Each state has different laws regarding how you notify the birth father. In some states, the adoption placement must be listed on a paternity site.  In others, the baby’s father must be personally served written notice and, in some cases, give him an opportunity to appear in court.  Here in California, it depends on whether the birth father is a presumed or alleged father under the law.

Presumed and Alleged Fathers:

The law before paternity testing and DNA testing categorized fathers into two categories: presumed and alleged fathers, which has zero to do with actual blood relationship.

If you are married when you become pregnant, whether your husband is the biological father or not, the law presumes him to be the father. If you are not married, but you and a man sign a declaration of paternity to place his name on the birth certificate, whether he is the biological father or not, he is also a presumed father.  Presumed fathers have the right to be personally served with notice of a court hearing to terminate their parental rights in an adoption proceeding.

If you cannot find him to serve him an actual notice, then a notice must be placed in a legal newspaper in the jurisdiction where he was last known to reside for 4 consecutive weeks. This is called constructive notice.  At that hearing, he may show up to contest the adoption, in which case it will be set for trial.  If he does not appear at the court hearing, after proving abandonment his rights will be terminated.  The adopting parents will be parties to this termination action and will pay for the attorney that tries the case to terminate the father’s parental rights.

If the baby’s father choses to appear at the termination hearing and take it to trial and succeeds in stopping the adoption by maintaining his parental rights, your parental rights will also be intact. California does not allow the biological mother’s parental rights to be terminated simply because she placed her baby for an adoption that was stopped by a birth father in court—in that scenario, both you and the baby’s father would have parental rights after the attempted adoption placement.

If you are not married to the biological father and he is not on the birth certificate, then he is considered an alleged father.  If he is not on board with your adoption plan, the law requires you personally serve the alleged father with written notice that he is alleged to be the father of your unborn child and he has four legal options:

  • Do nothing and the adoption will proceed without him;
  • Sign a court form denying paternity and the adoption will proceed without him;
  • Sign a court form waiving his rights to notice of the adoption planning and the adoption will proceed without him; or
  • File a paternity action within 30 days of receiving the notice.

Sometimes you may need to notify more than one “father.” This occurs if you were married but never divorced your husband and got pregnant with your new boyfriend. Or you may have been sexually active with more than one partner and you are not sure who is the biological father. These are more common situations than you might think. The adoption attorneys at Moore Law for Children will help you determine who needs notice and we will do that for you.

Unknown Birth Fathers:

If you had a one night stand and do not know the full name of the birth father, or you don’t know where he lives or how to reach him, or if you were under the influence and don’t remember when you got pregnant or were sexually assaulted by a stranger, the law requires you try to search for the birth father with whatever information you have.  If you cannot identify him or find him, then the adoption lawyers will file a motion with the court to terminate his rights without notice.

Fraud:

It is sometimes tempting for a birth mother to say she does not know who the birth father is to avoid telling him. We do not recommend that.  You need to file your statement about the birth father under penalty of perjury with the court. A court would consider any misinformation to be fraud. It could result in criminal prosecution. This could void the adoption for up to three years after the finalization. In our experience, most birth fathers do not object to an adoption. If they do, they rarely actually do anything to legally fight it. For those rare circumstances where a birth father will fight an adoption, the adopting parents will pay for a lawyer to represent your wishes for the adoption to finalize in court.

Moore Law for Children cares about all parties involved in an adoption – the birth mother, the child, the birth father, and the adoptive parents. Placing your baby for adoption is a special choice and there are many factors to consider.  If you are pregnant and considering adoption talk to the legal team at Moore Law for Children. We will protect your rights. We are experienced legal professionals, and adoptions are personal to our lives.

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