Proposed Legislation Designed to Safeguard Birth Fathers’ Rights, Protect Adoptive Families

Birth fathers contesting adoptions are rare, but a few high-profile cases in recent years have drawn more attention to the legal process of ensuring that fathers of unborn or newborn children who a mother has chosen to relinquish have been notified.

A new law proposed in the House of Representatives by Reps. Vicky Hartzler (R-Mo.) and Rep. Annie Kuster (D-N.H.) would help to prevent contested adoptions by birth fathers. The Permanency for Children Act, or HR-3092, would “connect the voluntary responsible fatherhood registries in 34 states with the Federal Parent Locator Service, providing a broader, more efficient way to locate absent birth fathers during a pending adoption.”

“Currently, a father would need to register separately in the Responsible Father Registry in all 34 states to provide the greatest possible amount of legal protection for his parental rights,” Hartzler shared in an email. “By increasing the probability of finding the father and engaging earlier in the process, this will hopefully lead to less legal uncertainty and disruptions for prospective adoptive parents.”

Co-sponsor Kuster is a former adoption attorney and shared in a press release that “A consolidated fatherhood registry will greatly benefit the adoption system and families across the country. Every child deserves to have a safe and stable home to grow up in, and this commonsense legislation will make it easier for birth fathers to voluntarily assert their rights as parents by connecting the 34 state Responsible Father Registries with the Federal Parent Locator Service.”

The National Council for Adoption is backing the bill with Executive Director Chuck Johnson stating in an email: “Our concern is with the 16 states that provide fathers no access to secure notice of a possible adoption and the vulnerability that this gap leaves the adopting family and child.  We also know that administration of these 34 registries are state-specific and they don’t work together.  A national registry will give fathers a clearer path to signing a registry and securing notice of a pending adoption, as well as give fathers in the states without a registry more opportunity than they currently have. And, finally, it gives the adopting family protection against legal challenges to the adoption.”

One of the most visible cases of a contested adoption was that of Adoptive Couple v. Baby Girl, where Dusten Brown contested the adoption of his daughter, Veronica, by Matthew and Melanie Capobianco stating that he was not properly notified under ICWA guidelines. The case ended up going all the way to the Supreme Court where the court ruled against Brown’s contest of the adoption in a 5-4 decision, stating that the non-custodial father did not have rights under ICWA. The case was returned to the South Carolina state courts where custody was given to the Capobiancos. Other cases have highlighted the challenges of the putative father reporting system and the difficulty birth fathers may have in tracking down their child after birth. Some of these cases include that of Phillip J. James in Utah and Christopher Emanuel in South Carolina.

“This bill greatly improves the ability of courts to find fathers during the foster and adoption process and greatly expands the legal certainty for responsible fathers registering in state responsible father registries,” Hartzler shared in an email. “Many of the high profile contested adoption cases are a result of imperfect information. While this bill won’t resolve all potential scenarios, it makes improvements to the system that will hopefully increase the number of fathers proactively asserting their parental rights and provide quicker paths to permanency for children in both biological and adoptive families.”

Adoption attorney Michelle Hughes says the proposed law would help protect birth fathers and ultimately the prospective adoptive families who could get caught up in legal battles if the adoption is contested.

“It would balance fathers’ rights for notification with babies’ rights for permanency,” Hughes said. “A nationwide registry also prevents mothers from jumping states to avoid a registry result.”

While the bill is a positive step forward, Hughes said there is room for additional safeguards as well: “I would like to see a registry that expands beyond the 34 states that is well publicized, that putative fathers have the ability to register throughout the pregnancy and 30 days following for notification of an adoption proceeding anywhere in the United States.”

The bill also doesn’t address the concerns that some prospective birth mothers may have about a child’s birth father and his family in regard to their ability to raise a child (such as domestic violence or is a known sex offender). Some women who would prefer to relinquish their child actually end up parenting instead of relinquishing their rights to the child’s birth father in cases where they fear for the safety of the child.

In one such case, Iowa couple Rachel and Heidi McFarland were awarded $3.25 million this year for emotional distress for adopting a child who was reclaimed by the birth mother and then murdered by the birth father just weeks later in April 2014.

“However, this law will require many states to either change their relinquishment forms or the way they practice taking relinquishments to protect mothers who would prefer to parent than have the father parent,” Hughes said. “The perception is mothers must weigh in their decision process only whether they place for adoption or parent the child. But many mothers have weighed if they should let the father parent, not to mention extended family on both hers and his side of the baby’s family. There is often well-thought-out reasons why a mother prefers placing for adoption than giving the father the child to parent. Adoption is complicated and each situation has its own unique consideration regarding placement.”

The Permanency for Children Act was introduced in June and is currently pending committee review.

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Kim Phagan-Hansel
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