Birth Fathers + Adoptions: Inequality in Parental Rights
From Washington Lawyer, February 2014
By Thai Phi Le
Dada. For many babies, it’s their very first word. It’s simple. Two syllables, four letters. But some things are never as simple as they first appear, including fatherhood.
What makes a man a father? Traditionally, “dad” has been the husband of the woman who has given birth to a child. In 2013, however, tradition is all but thrown out the door. Parents now run the gamut: spouses who adopt, gay partners, artificially inseminated couples, divorcees, people in lifelong unmarried relationships, couples with a gestational surrogate, parents to a child resulting from a one-night stand.
While the public’s views regarding the unconventional definition of a parent have evolved, laws by nature take significantly longer to change. Critics of certain adoption laws believe that the rights of unwed fathers often fall victim to the transitional gap created as laws slowly adapt to the times. They point to stories like that of John Wyatt, Cody O’Dea, and other unwed fathers who fought lengthy court battles in an attempt to retain their parental rights.
As with most contested adoptions, the stories differ. Wyatt’s story begins in 2009 in Virginia, where he resides. His then girlfriend, Emily Colleen Fahland, got pregnant at 19. The two agreed to co-parent, but a few days before Fahland gave birth, she sent Wyatt a text message stating that she was getting information from a Utah adoption agency. He argued that he thought the text meant she was just looking into adoption, not a statement that she was going forward with it.
A day after Fahland had “Baby Emma,” Wyatt went to the hospital, but neither mother nor baby was there. A week later, he sued for custody of his daughter who he discovered was adopted by a couple in Utah. He lost. Utah’s district court said Wyatt waited too long to assert his parental rights. A Virginia court disagreed, issuing a competing order that awarded custody to Wyatt.
More than four years later, the appeals have ended and Baby Emma remains with her adoptive parents. The controversial case put a spotlight on a lingering question on adoption law: Do unwed fathers have equal rights to parent their children?
Proving a Father’s Fitness
The U.S. Supreme Court first tackled the issue of unmarried fathers’ parental rights in Stanley v. Illinois in 1972. Peter and Joan Stanley lived together and had three children, but they never got married. When Joan died, the children automatically became wards of the state. Peter sued, arguing that the removal of his children without evidence that he was an unfit parent deprived him of his rights under the Equal Protection Clause of the Fourteenth Amendment. The case made its way to the Illinois Supreme Court, which ruled that there were no constitutional violations because there was a presumption that unwed fathers were unfit to take or retain custody of their children. The U.S. Supreme Court overturned the lower court, ruling that Peter was entitled to a hearing under the Due Process Clause to prove his fitness as a parent before losing custody.
Other cases followed. In the 1979 case Caban v. Mohammed, the High Court ruled that New York Domestic Relations Law § 111 was unconstitutional because it did not allow involved unwed fathers to stop the adoption of their children, but permitted either married parents or unmarried mothers to prevent an adoption.
Another case, Lehr v. Robertson, showed that there were limitations to the rights of an unwed father, often referred to as a putative father. The case originated in Ulster County, New York. In the 1970s the state established its putative father registry, which allows an unmarried male to officially document that he had relations with a woman that might produce a child. Registering does not guarantee a putative father rights to the child, but it provides him with notice if a child is born and the mother begins adoption proceedings.
John Lehr never registered with the New York putative father registry after his daughter was born out of wedlock in 1976 to Lorraine Robertson. He did not offer child support and rarely saw her. Two years after her birth, Robertson’s husband petitioned to adopt the girl, and the adoption was finalized on March 7, 1979. Lehr did not know about the adoption proceedings until four days before the final order was signed. He asked the court to vacate the adoption, stating that his due process rights were violated.
In 1983 the U.S. Supreme Court upheld the New York Court of Appeals, ruling that Lehr had not established a relationship with the child and did not sign up for the putative father registry. His failure to “graspthat opportunity and accept some measure of responsibility for the child’s future” meant that he forfeited his right to notice of an adoption proceeding. The ruling legitimized putative father registries.
“I love that—if he ‘grasps the opportunity.’ The biological link is not enough. He has to grasp the opportunity to establish the parent–child relationship,” says Cynthia Mabry, a professor at Howard University School of Law where she teaches family and adoption law.
Despite some progress, the legal scales seem tipped against unmarried fathers. Today, advocates continue their fight to carve out more parental rights for birth fathers, especially as the number of children born to unmarried parents continues to grow. According to the Centers for Disease Control and Prevention, 40.7 percent of children were born out of wedlock in 2011.
“The history of adoption, and very often still today, is that men involved are seen as obstacles [rather] than as participants. That doesn’t smack of equality to me,” says Adam Pertman, president of the Donaldson Adoption Institute and author of Adoption Nation: How the Adoption Revolution Is Transforming Our Families—and America. “Is it true that many men are not interested in parenting in these situations? It is true. Anecdotally it seems very clear, but it also seems clear that a sizable and growing number [of fathers is] interested in being honest, real participants, whether it’s making adoption decisions, having an open adoption, or parenting.”
New York was the first state to establish a putative father registry in an effort to recognize a potential father’s rights and offer him an opportunity to assert those rights. According to the Child Welfare Information Gateway, a clearinghouse of adoption and child welfare resources under the Children’s Bureau of the U.S. Department of Health and Human Services, 24 states, including Virginia, have established putative father registries as of 2010. Eleven states and the District of Columbia offer forms for fathers to voluntarily acknowledge their paternity. Since their inception, however, putative father registries remain controversial among adoption reform experts who debate their efficacy and benefits to birth fathers.
“On paper it’s effective, right?” Mabry says. “A putative father who registers should get notice of the adoption and termination of parental rights proceedings. The problem is that putative fathers or unwed fathers don’t know they exist.”
Virginia’s putative father registry faces that very issue. In 2005 the state legislature convened a study group to review potential revisions to Virginia’s adoption laws. Mary Beck, a professor at the University of Missouri Law School, created the original draft for the state’s putative father registry. Stanton Phillips, who runs the Adoption Legal Services at Goldenberg & Phillips, P.C. in McLean, Virginia, and another attorney assisted with the procedural aspects of revising and updating the laws. The registry went into effect on July 1, 2007.
An article from the winter 2010 issue of the Virginia State Bar’s Family Law News noted that only 64 men signed up for the putative father registry during its first year when approximately 38,000 children were born out of wedlock in Virginia in 2007. The registry recorded 399 putative fathers from 2007 until November 2010.
Phillips believes the low numbers partially correlate to the fact that most birth fathers are usually not interested in raising a child, but he acknowledges that publicity about the registry must increase. “As any new system, there are kinks that need to be worked out,” he says. “Overall, in the long run, I think it’s going to be beneficial, but until the publicity gets out there, until there’s an awareness of the existence of the registry, we’re not going to have as many birth fathers being able to establish their rights.”
Every state that has enacted a putative father registry has included provisions to publicize the registry. Virginia, like most other states, instructs its Department of Social Services to create and distribute publications and to issue public service announcements to inform the community of the existence of the registry. (Other putative father registries are run by the states’ respective Department of Health.)
“I know the legislation talks about a public information campaign, but . . . we have a history of lots of realms where public information campaigns just aren’t that complete,” says Pertman.
One need not look further than the current education campaigns surrounding the health care exchanges and other provisions of the Affordable Care Act (ACA). In April 2013, Sen. Max Baucus (D–Mont.), a key architect of the ACA, criticized the Obama administration’s outreach efforts. A Washington Post–ABC News poll in September showed that more than six out of 10 Americans believed they did not have the information they needed about the law.
“And by the way, the consequences aren’t as big. If a man doesn’t sign up [for a registry] and wants to be a father, the consequences are really huge,” Pertman adds.
Mark McDermott of the Law Offices of Mark T. McDermott recognizes that getting the word out is a huge concern, but he believes it is getting easier to inform fathers. “We’re in the electronic information age. Put stuff up on the Web, and these birth fathers will be more likely to see it than they would in some other places,” he says.
Mabry suggests placing ads where men typically go, such as sporting events, bars, and public transportation, as well as hosting community-based “know your rights” sessions.
But why wait to inform men of putative father registries? In the age of smartphones and considering the many distractions in our increasingly Internet-driven society, outreach efforts still may reach adults too late or not at all. Early education could play a key role in increasing awareness about these registries.
“I would love to see it taught in school. When they teach health and sex education classes, put it into the curriculum that there is such a thing as a putative father registry to protect their rights,” Phillips says.
The proposal may face an uphill battle, however, as many school systems already are dealing with criticism over sex education in schools.
“I think this country is schizophrenic. On the one hand, you’ve got Miley Cyrus all over the Internet. Then on the other hand, we don’t talk about sex at all. Let’s decide. You have to start educating kids,” says Michele Zavos of Zavos Juncker Law Group PLLC in Silver Spring, Maryland.
Mabry agrees. “I know parents cringe at the thought, but [children] are engaging in sex, so they might as well know what the consequences are.”
In addition to lectures about contraception and sexually transmitted diseases, children may also benefit from learning about their legal rights and responsibilities as they make their way to adulthood. A study that appeared in the April 2008 issue of the Journal of Adolescent Health concluded that teens who participated in comprehensive sex education programs were 60 percent less likely to get pregnant or get someone pregnant than students who did not.
Zavos recalls numerous situations during her career where a mother realizes years after her child is born that she could have received child support. “It’s not just young men who don’t get it. Young women don’t get it. We don’t educate people. We just assume everybody should know this, or maybe we don’t care that they don’t know it,” she says.
Even with early education and public outreach, Pertman believes the registries will remain underutilized. “Whether it’s men or women, the notion that people are going to sign up after they have sex in case there might be a baby is really stretching the imagination to believe things that the evidence indicates might not happen. Are human beings really going to sign [up for] a registry of any sort, anywhere, as a matter of routine every time they have sex? It just strains credulity.”
Zavos agrees. “It’s kind of presumptuous to think that they even work. . . . Yes, one should know that if you have sex with someone, there’s a possibility of having a child, even if you use protection. To then take that to the next step and say, ‘Well, now that person has a responsibility to try and figure it out,’ I just don’t think that’s really viable.”
At some point, however, some of the responsibility must be shouldered by the father.
Zavos recognizes it’s a balancing act. “On the other hand, if a birth father really wanted to be a parent, doesn’t that person have some responsibility and obligation to find out if the woman he slept with had a child and that he’s responsible?” she asks.
For McDermott, the theory behind the registry is that if a man has unprotected intercourse, he’s on notice that he might be a father, that he has legal rights, and that he can grasp those rights, but he has to act. “If he has unprotected sex and he wants to assert his parental interest in a potential child that might come into existence, then yes, he should put his name on the list,” he says.
Call for a National Registry
In most cases, a man is not likely to register as a putative father a day after sex as a precautionary step. Often it’s the whispers and gossip about a potential pregnancy of a former partner that spur him to act. If he crosses the first hurdle—awareness of the registry’s existence—he faces the next challenge: where to register. That has become a more difficult question to answer as states have different laws on how birth fathers could assert their parental rights and because there is no national putative father registry. Some states require a father to register with the state in which he resides, and if different than the state where the mother lives, he must register with that state as well. Others, like Virginia, require fathers to register with the state where the child was conceived or born to protect their rights.
In the Baby Emma case, Wyatt started legal proceedings on February 18, 2009, in Stafford County, Virginia, to obtain custody of his daughter, well within the state’s 10-day post-birth limit to assert his paternity. Unknown to him, however, Baby Emma was in Utah, a state with some of the strictest laws in the country for unmarried fathers to assert their rights. In Utah, putative fathers must register within 24 hours of the baby’s birth, after which the mother can initiate the process to relinquish her rights or consent to adoption. Wyatt missed the state’s deadline.
“We have 50 different sets of laws and they’re dramatically different. It’s just astoundingly different on every little point. Since I’m licensed in D.C., Maryland, and Virginia, I get to see this every day. It’s all day long—I’m switching from Virginia to Maryland to D.C. law,” McDermott says.
To simplify the process and reduce confusion, legislation for a national putative father registry was drafted. In 2006 U.S. Sen. Mary Landrieu (D–La.) introduced the Protecting Rights of Unknowing Dads and Fostering Access to Help Encourage Responsibility Act of 2006, also known as the Proud Father Act. Had the law been approved, putative fathers would have to register only in one place. A national registry also would have alleviated potential jurisdictional issues and confusion when a mother moves to another state, or chooses to give birth or consent to an adoption in a place different than where the father resides.
The legislation was reintroduced by Sen. Landrieu in 2012 as the Protecting Adoption and Promoting Responsible Fatherhood Act of 2012, and again in 2013 by U.S. Rep. Ann Kuster (D–N.H.), but it has yet to pass.
McDermott believes in the benefits of state registries, but he also strongly advocates for a national one. “This is a law that not only promotes adoption, but also the biggest beneficiaries of the national registry are the birth fathers because they no longer have to run around and play this guessing game because there will be a central place.”
Phillips, the adoption attorney who was instrumental in drafting and rewriting Virginia’s adoption laws, recounts the case of Cody O’Dea. O’Dea was in a relationship with Ashley Olea while both were residing in Sheridan, Wyoming, but when it ended, she moved to Buffalo, a city about 35 miles away. Through the grapevine, O’Dea heard that Olea was pregnant, and he offered to support her and the baby financially. Weeks later, she told him that she miscarried. She had not. Toward the end of Olea’s pregnancy, O’Dea discovered that she was still pregnant with his child, but planned to put the baby up for adoption. He registered with the putative father registries in Wyoming (the state of conception) and Montana (where Olea was working with an adoption agency). On June 15, 2006, he received a call from Olea informing him that she was in Utah. She gave birth there the same day. Utah’s Supreme Court ruled that O’Dea didn’t have any parental rights because he registered in the wrong states. Having a national registry would have protected a father like O’Dea by reducing the ability of a mother to thwart a father’s efforts.
Despite support among those in the family law community, legislation for a national registry has failed to gain major traction. In addition, skeptics still question the registries’ effectiveness.
“A national registry is better than having a hodgepodge of state ones,” says Pertman of the Donaldson Adoption Institute. “I don’t know [if] it’s the answer, but it certainly helps mitigate the problems of state registries. It’s not going to be a complete answer until everybody is on board. Even then, it’ll still have significant gaps.”
State Autonomy, Standardized Rules
Even if a national registry is established, would everybody be ordered on board? None of the bills proposed by either Sen. Landrieu or Rep. Kuster made state participation in the registry mandatory.
“That all has to do with the concept that Congress can’t tell states what to do. They have to give them an incentive to do it,” McDermott says. He believes that one of the fundamental policies of a national registry should be to not supersede state law.
Family law has historically been governed by state law, which is also why it’s likely that even if all states were to participate in a national registry, many of the standards—from registration deadlines to revocation periods—still would vary from state to state.
A national registry with national standards may encounter pushback because of deference to state law, says Mabry, the Howard University law professor. “You have what are projected standards that all states would be expected to follow, but leave some leeway for states,” she recommends.
“As much as possible, [states] want to have the prerogative. The laws of the states stay in place . . . just overlay [them] with this clearinghouse concept so the information can be accessed no matter what states are involved,” McDermott proposes.
On the other hand, Zavos believes national standards are necessary for putative father registries to work as effectively as possible. She argues that allowing states to choose how to run their own registry gives too much room for “playing the game.”
“When you look across the country and look at things like Medicaid [where] states are allowed to play with them in some way, when you allow that, people get hurt,” she says, adding that if legislation allows for state input on the registries, then the elements should be standardized. “Make it as specific as possible, and [states] get to decide whether they use ‘the’ or ‘an.’ That’s how I would see it,” Zavos says.
Complicating matters is the fact that more adoptions take place across state lines. The Internet has been a game-changer in family law over the past 10 to 20 years, according to Phillips. People are no longer looking at newspaper ads to find a mother putting her child up for adoption; they’re surfing online.
“It would simplify things if there was a national standard. If each state followed the same rules and procedures, there’d be less confusion,” Phillips says.
At the heart of the putative father registries are the notice provisions that inform a man of a potential adoption proceeding or termination of his parental rights. In Virginia, if the state knows who the birth father is and where he resides, it will send him a notice during pregnancy or after birth that there’s an adoption plan for the child. He has up to 10 days to register. If he does not, he will receive no further notice of the proceedings. When there are no adoption plans in the works, a potential father has 10 days to register after the birth of the child to protect his rights.
“Until the registries become more widely known as a way of protecting rights, I think this is a good method of informing them [of] what’s going on,” Phillips says.
The lines, however, start to get blurry when it comes to notice through text messaging, which is often the primary form of communication among teens and even adults. A 2011 survey by the Pew Research Center’s Global Attitudes Project showed that 67 percent of people in the United States who have cell phones use them to text. The center’s Internet & American Life Project also found that American teens’ daily use of text messaging has grown from 38 percent in 2008 to 54 percent in 2009, with over half of them sending more than 50 texts a day.
But should texting count as notice to putative fathers? In Utah, it may. In the Baby Emma case, the text message Fahland sent to Wyatt was deemed sufficient notice that an adoption might occur.
“You have states that, I think, tend to be abusive such as Utah,” Phillips says. “You have a birth mother from another state and she mentions the word ‘Utah’ in a text message, as [in] ‘I’m looking at an agency in Utah,’ [and] that’s considered notice in Utah. . . . I don’t believe that was an adequate constitutional notice.”
“I do not think a text message is sufficient. I think it’s the equivalent of putting the agate type in the back of the newspaper,” Pertman says. “It’s a good way of saying, ‘See, I did it,’ without really doing it. If you’re serious and you want dads to step up, if the goal is to get them to step up rather than to shove them out the door, then a text message is clearly insufficient.” Currently, no laws specifically address the use of text messages as notice.
In the District, which has no putative father registry, notice of a potential adoption can be by publication and posting.
“Where’s this posting? The posting is in the courthouse in this little room up on the fourth floor, in the back, on a little piece of paper on the wall. Nobody even looks at it,” says Zavos, whose practice includes adoption, parenting, and assisted reproductive technology. “Even if you publish, which most judges are going to require to both publish and post, in all the adoptions I’ve done in my entire career—probably over 1,000 adoptions, and I’ve done a fair number of ones we had to post and publish—I had one person come in,” Zavos says.
Zavos recalls putting a notice in a local paper in a small town in either North Carolina or South Carolina. A cousin of the birth father came forward, stating that he wanted the child. The birth father was not interested in taking custody of the child, and the judge ruled the adoption could go forward. That was the only time that happened in Zavos’ career.
Mabry remembers the first time she saw the courthouse posting. “I was walking up the escalator and I see this board. It’s like one of these old-fashioned cork boards. All these little papers on it, little squares, three-by-five cards. I go over and say, ‘What in the world is this?’” she recalls. They were postings about adoptions. “I tell my students in Civil Procedure the same thing for the notice by publication. You have to get a judge’s permission to do it. Yeah, it’s in the newspapers in the classified section, [but] only Civil Procedures people look for it who want to share it with their students.”
Thoughtful, Ethical Adoptions
Groups like the National Parents Organization (formerly Fathers and Families) point to stories of fathers like Wyatt and O’Dea to show that registries may appear pro-birth father on the surface, but when explored further they actually impede these men’s rights. Both Wyatt and O’Dea wanted to be fathers but were denied their parental rights due to what some would call legal technicalities.
“They are ostensibly designed to enable men to step up, but in practice, at least it appears that just as often they’re used to cut them out in a very deliberate fashion,” Pertman says.
The beneficiaries of putative father registries are often adoptive parents, Zavos says. "Putative fathers don’t know those [registries] are there,” she says. “That’s also a reflection of how money works in society. Most adoptive parents are going to have more money.”
McDermott disagrees with the perception that the registries are pro-adoptive parents. “I would say that’s just uninformed opinion or they’re just trying to sell a position because actually these facilitate birth fathers. It gives them an ironclad, easy, understandable way to make sure he gets notice and participates in the proceeding,” McDermott says.
If putative father registries aren’t the solution to ensuring equal rights for unwed fathers, then what is? Pertman would like to see the same flexibility toward fathers that courts extend to mothers.
“There are a lot of cases where women get more flexibility—one more rehab, one more hearing, one more time—because she’s a mom. That’s a good thing. I’m not denigrating that, but we do very often put fathers on a lower tier,” Pertman says.
He emphasizes that this is not a battle between men and women, but one for stronger rights of parents to their biological children. He hypothesizes a scenario where a competent mom shows up late to a hearing and loses custody of her child. “I don’t think that’s a likely scenario or it wouldn’t be very prevalent,” he says. “But these registries and other circumstances, [these are] the standard for men. You didn’t step up in X amount of time. You know, life happens. I’m not excusing anyone. They do have to step up. They do have to show responsibility. . . . This is not an argument for deadbeat dads being forced to parent their children. It is an argument for taking circumstances into account and giving some priority to men who want to be parents.”
In addition to flexibility, Pertman would like to see more clinical-based research, extensive survey work, and the development of some uniform standards. “I’m an adoptive parent,” he says. “I’m not looking to stop adoptions. I’m looking to make them more thoughtful and ethical.”
There have been attempts to enact uniform standards before. In 1994 the Uniform Adoption Act was created and proposed by the Uniform Law Commission, also known as the National Conference of Commissioners on Uniform State Laws. The act’s extensive framework included provisions on how to handle jurisdictional issues, the rights of adoptees, consent and relinquishment requirements, grounds for terminating parental relationships, and investigations and notice to an unknown father, among many others. The goal was to make the adoption process smoother and to enact laws that would create fewer disputes and provide more predictable results across the board.
“You can get to the heart of the matter of dealing with that child’s best interest instead of . . . fighting over procedures and which procedures apply from one state to another,” Phillips says.
Some adoption advocates vilified the law, and so far only Vermont has adopted it. McDermott, however, would like to see a revival of the Uniform Adoption Act to protect birth father rights, but he has no expectations it will happen.
“This product has been lying around since , so that’s a long time. If the states are going to get excited about it and do something with it, they would’ve done it by now,” he says.
The reality is that it’s unlikely a uniform interstate adoption law will be enacted anytime soon, Mabry says. “It took us years to sign uniform laws about intercountry adoptions. I can foresee it’s going to take more decades . . . to get that because states are holding on to their province.”
For now, Phillips believes that most state laws are fairly balanced. “There is a pendulum that swings. Sometimes it goes more in favor of birth father rights, and sometimes more in adoptive parents. The legislatures keep going back and forth in little degrees. Overall, you go back to the general concept that a birth father is given his notice and an opportunity to be heard. That’s generally carried out in most states.”
McDermott agrees. “I think it’s becoming more and more balanced. Implementing putative father registries is a step to try to protect fathers,” he says.
Reach D.C. Bar staff writer Thai Phi Le at email@example.com.
 Phillips was one of John Wyatt’s attorneys who helped petition the U.S. Supreme Court in December 2011 to hear the Baby Emma case. The High Court chose not to review the case.
 McDermott, former president of the American Academy of Adoption Attorneys, represented Colleen Fahland’s parents in Baby Emma’s adoption arrangements. In April 2012, the Virginia Supreme Court allowed Wyatt to sue McDermott and others involved in the adoption for “tortious interference with parental rights.” McDermott told Washington Lawyer he could not discuss the case for this story, but stated that the suit for money damages was settled.