Father’s Rights in Adoption: An Overview

One of the questions which you may face when considering a New York adoption placement is whether the birth father has the legal right to interfere with or upset the adoption. This summary is intended to help you understand these rights so that you may effectively respond to a placement which may be presented.

To begin with, the mother’s consent is required in virtually all infant adoptions in New York. Similarly, if the mother is married, her husband’s consent is ordinarily required if he is the biological father. However, the laws relating to the rights of unwed birth fathers are somewhat more complicated.

The general rule in New York is that if an unwed father (1) has filed an acknowledgement of paternity, (2) has been identified by the mother as the father in a sworn statement, (3) is living with the child and mother and holding himself out to be the father, (4) is listed on the child’s birth certificate, (5) has filed a notice of intent of paternity or (6) has obtained an order of filiation, he is entitled to be notified of the adoption. A so-called “notice” father is not entitled to veto the adoption. Instead, he can only attempt to demonstrate to the court why the adoption would not be in the child’s best interests.

However, if the unwed father promptly takes every available step to show parental interest and intent during the mother’s pregnancy (E.g., filing for paternity, paying the mother’s expenses, offering to care for the child, offering to marry the mother, taking the mother to doctor’s appointments, holding himself out as the father, etc.), is otherwise fit to raise a child and actually wishes to do so, he may be entitled to withhold his consent to the adoption of an infant.

Ordinarily, the unwed father’s time in which to qualify as a “consent” father is limited: he must complete the steps before the child is legally placed with the adoptive parents (normally, several days after birth). Therefore, a father who remains unaware of the mother’s pregnancy due to his own inaction — or who turns his back on the mother after hearing of her pregnancy — cannot upset the adoption after the mother has signed her paperwork. With the one exception detailed in the next paragraph, if the unwed father takes these steps after the placement is completed he will have acted too late.

However, if the father contacts the mother during the pregnancy and asks about her condition, she cannot lie or deceive the father, nor can she conceal the fact of her pregnancy from him. Any dishonesty by the mother will enable the father to apply to challenge the adoption once he becomes aware of the pregnancy.

The damage that can be done by an oppositional father, even one who is not a “notice” or a “consent” father, is great. Accordingly, it is very important for the adoptive family to assess the father’s status with respect to any placement. Is he truly a disinterested father? Has he taken any steps to reach out to the mother, or has he abandoned her? These questions are critical.

The adoptive family’s task of evaluating a birth father’s actions is complicated by several factors. First, some women are simply not able to identify the father. Others, for acceptable reasons (E.g., father’s abuse or addictions, confidentiality), are reluctant to identify the father. Moreover, New York law normally allows a woman to place a child for adoption without notifying the unwed father of her pregnancy and without identifying him on her paperwork.

In any placement involving unwed parents, the mother must sign a statement under oath which states that no man has taken steps which would entitle him to either notice or consent, nor has she lied about her pregnancy or concealed her pregnancy from anyone claiming to be the father.

As a result, you may encounter a situation where a mother who wishes to make an adoption plan and who knows the father’s identity nonetheless chooses not to identify him. Although this may be the right decision for her, it will make your decision more difficult. Your FIA case manager, working with you and your attorney, will strive to confirm that the father will not be able to raise an objection to the adoption.

 - This article is part of the Friends in Adoption Newsletter: Connections.

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Written by Brendan C. O'Shea, Attorney
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