What’s the number one way to spoil a gallon of milk? Answer: leave it out.
The same goes for adoptions and putative fathers. The number one way to spoil an adoption is to leave out the putative father . . . sometimes.
But, what if there’s no room in the fridge? … Okay, I’m not sure where this analogy is going – let’s get back on track.
How do you know when a putative father has to be brought into an adoption? When does an adoptive family have to give notice to and obtain consent from a putative father?
First of all, a putative father is simply “the alleged or reputed father.”[1] The status of putative father is contrasted with the legal or presumed father (whose consent is always required) and is not necessarily the biological father.
The relevant statutes governing the question of when to include a putative father are as follows:[2]
§ 26-10A-17. Notice of Petition
§ 26-10A-9. Implied consent or relinquishment
§ 26-10A-7. Persons whose consents or relinquishments are required.
§ 26-10C-1. Registration of putative fathers; notice of intent to claim paternity; release of information
A plain reading of these code sections suggests that, unless a potential putative father signs the registry, he is not entitled to notice and his consent is not required.
This interpretation is consistent with the position taken by the Department of Human Resources, as expressed in their pamphlet, Putative Father Registry.
However, some counties seem to take a divergence from this plain-reading in their practice of what they require adoptive families to file; what I call their “playbook.” This discrepancy between the courts has led me to dig further into the case law interpreting these statutes. The following case law supports the conclusion that a putative father is not entitled to notice unless he signs the registry and his consent is not required.
In the 1999 case of M.V.S. v. V.M.D., the Court of Civil Appeals interpreted the Adoption Code in the following manner:
“26-10A-17(a)(10), a part of the Alabama Adoption Code, requires that a putative father be given notice of a pending adoption. Section 26-10A-7(a)(5), also a part of the Alabama Adoption Code, requires the putative father’s consent or relinquishment if he has responded within 30 days to the notice he received under § 26-10A-17(a)(10). Section 26-10C-1(i) of the Putative Father Registry Act, which went into effect in 1997, now provides that the putative father will irrevocably consent to an adoption unless, within 30 days of the birth of the child, he files a notice to claim paternity. Only where the putative father has complied with the provisions of the Putative Father Registry Act is the consent of the father to the adoption required today. Section 26-10C-1(f), specifically provides that when the court handling the adoption ‘receives said notice of the intent to claim paternity, that court shall forthwith give notice of the pendency of the adoption proceeding to the putative father listed in such notice of intent to claim paternity.’ There would be no purpose in providing unregistered putative fathers with notice under § 26-10A-17(a)(10), because a right to consent to the adoption would have been waived by a failure to register under the newly enacted Putative Father Registry Act. Putative fathers who have registered would be entitled to notice under § 26-10A-17(a)(10), and their consent or relinquishment would be required under § 26-10A-7(5), provided that they responded within 30 days of the notice of the pending adoption.” M.V.S. v. V.M.D., 776 So. 2d 142, 154 (Ala. Civ. App. 1999) (emphasis added).
The Alabama Court of Civil Appeals and the Alabama Supreme Court have consistently upheld this interpretation of the statutes in question. The spirit of this sentiment was reiterated in 2007 by the Alabama Supreme Court in the concurring opinion of Ex parte D.B.[3] In addition, this sentiment was affirmed by the Alabama Court of Civil Appeals in the 2010 case of A.D.S. v. S.J.L.[4]
In short, the statutes and case law clearly support the conclusion that unless the putative father signs the Putative Father Registry within 30 days after birth, he is not entitled to notice and his consent is not required.
Before concluding, I would like to offer one note of caution: there are other ways that a putative father can make himself known to the court besides signing the Putative Father Registry. In the 2001 case of Ex parte S.C.W., the Alabama Supreme Court held that a biological father may make himself known “in a variety of ways (such as by the putative father’s filing a paternity action or a declaration of legitimation).” Ex parte S.C.W., 826 So. 2d 844, 851 (Ala. 2001). By thus making himself known to the court, a biological father will be entitled to notice and his consent will be required for an adoption to proceed.
This would obviously be a rare circumstance, but one to be aware of.
So, unlike milk, sometimes you can leave the putative father out of an adoption and it won’t spoil. But, knowing when is the trick.
For help with specific cases, contact The Adoption Law Firm.
Photo by iBjorn.
[1] § 26-10A-2(12)
[2] § 26-10A-17. Notice of Petition
“[N]otice of the pendency of the adoption shall be served by the petitioner on . . . (10) the father and putative father of the adoptee if made know by the mother or otherwise known by the court unless the court finds that the father or putative father has given implied consent to the adoption, as defined by Section 26-10A-9.”
§ 26-10A-9. Implied consent or relinquishment
“(a) A consent or relinquishment required by Section 26-10A-7 may be implied by any of the following acts of a parent:
(1) Abandonment of the adoptee. Abandonment includes, but is not limited to, the failure of the father, with reasonable knowledge of the pregnancy, to offer financial and/or emotional support for a period of six months prior to birth.
(2) Leaving the adoptee without provision for his or her identification for a period of 30 days.
(3) Knowingly leaving the adoptee with others without provision for support and without communication, or not otherwise maintaining a significant parental relationship with the adoptee for a period of six months.
(4) Receiving notification of the pendency of the adoption proceedings under Section 26-10A-17 and failing to answer or otherwise respond to the petition within 30 days.
(5) Failing to comply with Section 26-10C-1.”
§ 26-10A-7. Persons whose consents or relinquishments are required.
“(a) Consent to the petitioner’s adoption . . . shall be required of the following:
. . .
(5) The putative father if made known by the mother or is otherwise made known to the court provided he complies with Section 26-10C-1 and he responds within 30 days to the notice he receives under Section 26-10A-17(a)(10).”
§ 26-10C-1. Registration of putative fathers; notice of intent to claim paternity; release of information
“(f) The Department of Human Resources shall, upon request, provide the names and addresses of persons listed with the registry to any court. The information shall not be divulged to any other person except upon order of a court for good cause shown. The Department of Human Resources shall further after receiving notice pursuant to Section 26-10A-17 of the pendency of any adoption proceeding wherein the proposed adoptee is a child born within 300 days of the date or dates of sexual intercourse listed in the registry and to the same biological mother listed in the registry, immediately send a copy of the notice of intent to claim paternity to the court handling the adoption. When the court handling the adoption receives the notice of the intent to claim paternity, that court shall forthwith give notice of the pendency of the adoption proceeding to the putative father listed in such notice of intent to claim paternity and at the address therein listed, and additionally notify the biological mother that the putative father has registered in conformity with the putative father registry.” (emphasis added)
[3] “ . . . The concept of a putative-father registry may be burdensome to a putative father, but it cannot be contradicted that it gives him an opportunity to, and a procedure by which he can, perfect and propound that right, which he did not have before such registries. A putative-father registry also protects the privacy rights of the unwed birth mother by not forcing her to disclose the identity of the birth father against her wishes. The concept of a putative-father registry further protects the rights of the adoptive couple by giving them the confidence and assurance that the rights to notice and the issue of consents, whether express or implied, of all necessary parties has been judicially considered in the adoption forum and that there will never be a heartbreaking Baby Jessica or Baby Richard ending to their adoption. A putative-father registry advances the state’s interest in promoting “the welfare or best interests of the [adoptee], which include the encouragement of adoption in general and an expeditious and positive adoption specifically.’ 2 C.J.S. Adoption of Persons § 4 (footnotes omitted). Finally, and certainly most importantly, a putative-father registry helps protect the best interests of the adoptee, especially an infant child, so that this child will either know and receive the love and benefit of his or her biological father, or the love and benefit of adoptive parents, but not have to undergo the emotionally wrenching experience of coming to know both through a change in custody occasioned by protracted litigation that only belatedly considered and protected the rights of the biological father.
“There can never be a perfect procedure for giving notice to putative fathers in newborn adoptions. It is a biological and common-sense fact that the identity of the mother will always be known, but not so the biological father. Given the competing interests of the parties involved, there is only so much that government can do to search out putative fathers and give them notice of an adoption proceeding while protecting the privacy interests of the biological mother, who cannot be forced to disclose the identity of the putative father, and at the same time providing for an expeditious adoption proceeding. Various commentators have brought forth criticisms of putative-father registries on different grounds. Some believe that the establishment of putative-father registries as the sole vehicle for putative fathers to propound their rights does not go far enough, and that a mother should be encouraged to disclose the father’s identity so that more effective means of notice can be used. Analogies have been made that governmental programs exist that require mothers receiving public aid to cooperate in good faith in establishing paternity of their children. Jeffrey Parness, Adoption Notices to Genetic Fathers: No to Scarlet Letters, Yes to Good-Faith Cooperation, 36 Cumb. L. Rev. 63, 76-81 (2006). While this may be an effective economic incentive for birth mothers in need of financial aid, there would be no such economic motivation for the birth mother who is placing the child for adoption. Others note that it may be faulty to assume that “putative fathers know the registry exists and understand the requirements of proper registration,” Robbin Pott Gonzalez, The Rights of Putative Fathers to Their Infant Children in Contested Adoptions: Strengthening State Laws that Currently Deny Adequate Protection, 13 Mich. J. of Gender & Law 39, 49 (2006), and that “[f]ew states include publicity requirements in the registration statute.” Laurence C. Nolan, Preventing Fatherlessness Through Adoption While Protecting the Parental Rights of Unwed Fathers: How Effective Are Paternity Registries?, 4 Whittier J. Child & Family Advoc. 289, 321 (2005). These may be valid criticisms, but there must be a balancing of all competing interests when considering the overriding concern — the best interests of the adoptee. Certainly, states can be encouraged to publicize these putative-father registries and to advise potential fathers of their rights under such registries. It must be remembered that the predicament being addressed was created when a potential father engaged in an extramarital sexual relationship that he knew could possibly lead to the conception of a child. The irresponsible putative father who has no interest in any child so conceived does not have to register and thus frees the child for adoption into a loving home. Should he belatedly decide that he wants to establish a relationship with the child, neither the child nor the adoptive parents have to worry about a subsequent traumatic interruption of their family unit. However, the responsible putative father who wants to establish and have the privilege of enjoying a father/child relationship has the ability to do so simply by perfecting his registration — a small price to pay for the preservation of his right to a parental relationship. Again, by putting the child’s best interests uppermost in the adoption process, a putative-father registry allows obstacles to the adoption to be quickly discovered so that if the adoption cannot be finalized, the litigation surrounding it will not drag on for years. A national putative-father registry would further protect against extended litigation caused by multijurisdictional disputes as is the case here.” Ex parte D.B., 975 So.2d 940, 955-967 (Ala. 2007) (concurring opinion of Bolin, Stuart, and Smith, J.J.) (footnotes omitted).
[4] “As we noted in J.L.P. v. L.A.M., [Ms. 2070578, October 31, 2008] So.3d, n.1 (Ala. Civ. App. 2008), the provisions of the Adoption Code in effect at the time that the intervenors initiated the adoption proceedings in this case ‘[did] not explicitly require consent of a “father” to a proposed adoption except insofar as a “father” is the “presumed father” or the “putative father” of the child to be adopted.’ We further discussed the crucial distinction between the two terms in this context at some length:
“The terms ‘presumed father’ and ‘putative father’ mean different things under the Adoption Code: a ‘presumed father’ is ‘[a]ny male person as defined in the Alabama Uniform Parentage Act, ‘ i.e., Ala. Code 1975, § 26-17-1 et seq. (‘the AUPA’), whereas a ‘putative father’ is ‘[t]he alleged or reputed father.’ Compare Ala. Code 1975, § 26-10A-2(11), with Ala. Code 1975, § 26-10A-2(12). There is a further significant difference between the two classifications. Under the Adoption Code, a ‘presumed father’ of a child who has never married or attempted to marry that child’s mother is afforded an unqualified right to object to a proposed adoption of that child, regardless of the child’s actual paternity, if ‘[h]e received the adoptee into his home and openly held out the adoptee as his own child.’ Ala. Code 1975, § 26-10A-7(a)(3)d.
“In contrast, a ‘putative father’ who is made known to the court considering the adoption is merely given the right to object to an adoption ‘provided he complies with Section 26-10C-1, ‘ i.e., the [PFRA]. Ala. Code 1975, § 26-10A-7(a)(5). That language reflects that, since 2002, a required consent is deemed given by implication by a failure to comply with [the PFRA]; such consent so implied ‘may not be withdrawn by any person.’ Ala. Code 1975, § 26-10A-9(a)(5) and (b). In turn, § 26-10C-1(a) provides for a central putative-father registry in which are to be recorded the names of, and other information concerning, any person filing a notice of intent to claim paternity of a child. The penalty for failing to file such a notice of intent is, under the [PFRA], severe:
“‘Any person who claims to be the natural father of a child and fails to file his notice of intent to claim paternity pursuant to [the PFRA] prior to or within 30 days of the birth of a child born out of wedlock[] shall be deemed to have given an irrevocable implied consent in any adoption proceeding.
“‘This subsection shall be the exclusive procedure available for any person who claims to be the natural father of a child born out of wedlock on or after January 1, 1997, to entitle that person to notice of and the opportunity to contest any adoption proceeding filed and pending on or after January 1, 1997.’
‘Ala. Code 1975, § 26-10C-1(i).’”
“J.L.P., ___So.3d at____ .”
. . .
“. . . Although A.D.S. contends that classifying him as a putative father violates constitutional principles of due process, we noted in M.V.S. v. V.M.D., 776 So.2d 142, 149 (Ala. Civ. App. 1999), that ‘due process for unwed fathers requires that state law provide an adequate opportunity for them to claim paternity and to take responsibility for their children in a timely manner,’ and we added that ‘limits on procedural protection for a putative father are necessary from the perspective of the child, who needs a stable start in life and needs stability early.’ The PFRA and the Adoption Code, taken together, afford males claiming the (sic) be the fathers of children out of wedlock, as A.D.S. has claimed to be the father of the child at issue in this case, a clear right to notice and rights to give or withhold consent to a proposed adoption upon compliance with those statutes. Without having shouldered those relatively light burdens during the mother’s pregnancy or the 30-day period following the child’s birth so as to ensure his substantive parental rights, A.D.S. is in no position to claim that his subsequent objections to the proposed adoption and professions of readiness to be a parent are anything more than mere appeals to biological affinity. Stated another way, A.D.S.’s due-process attack on the juvenile court’s judgment must fail because he failed to ‘establish[] a substantial relationship with the child to merit constitutional protection.’ M.V.S., 776 So.2d at 146.” A.D.S. v. S.J.L., 70 So. 3d 345, 349-352 (Ala. Civ. App. 2010).
