There are two kinds of fathers whose consents need to be obtained: 1) presumed fathers and 2) putative fathers who are made known to the court and comply with the Putative Father Registry. A man will fall into the category of a presumed father if the child is born during the marriage or within 300 days of the termination of the marriage. (See 26-10A-7, Alabama Code, 1975).
Alabama, unlike many other states, recognizes common law marriage. Will the consent of presumed father of a common law marriage be necessary to finalize an adoption?
The probate court could handle the claim of common law marriage in several different ways. The court may just say “Okay, we’ll take your word for it.” Or, they may require some showing of proof to satisfy the elements of a common law marriage.
To establish a common law marriage, the court will most likely look for “1) capacity; 2) present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships; and 3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation.” Crosson v. Crosson, 668 So.2d 868, 870 (Ala.Civ.App. 1995). “No specific words of assent are required; present intention is inferred from cohabitation and public recognition.” Waller v. Waller, 567 So.2d 869, 869 (Ala.Civ.App. 1990).
If the court does not buy the common law marriage claim, then you will most likely need a paternity test for the father.
Photo by Yuri Samoilov.
