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Article Excerpt
In the United States, every third child is born to an unwed mother. (1) These children are relinquished for adoption at a greater rate than those born to married mothers. (2) Adoption of a child born to an unwed mother creates a quandary of how best to protect the parental rights of the father and the privacy rights of the mother while simultaneously securing the best interests of the child. Baby Jessica, Baby Richard, and Baby Emily were highly publicized court cases in the early 1990s where unmarried birth fathers contested the adoptions of newborns. The public felt strongly about state courts disrupting the adoptions of these children vis-a-vis the late assertion of their birth father's rights, but the United States Supreme Court declined to review the States' decisions in these cases. (3) In the wake of Baby Jessica, state legislatures, in an attempt to avert such disrupted adoptions, enacted putative father registries designed to mandate notice of adoptions to unwed fathers who file notice of intent to claim paternity with registries in the prescribed time. A State's putative father registry protects the rights of an unwed father and an adoptee within its State.
Recently, in the context of adoptions where interstate travel was used to thwart their efforts to assert paternity, two unwed fathers successfully sued in tort for intentional interference with their parental rights. (4) These costly torts have re-focused attention on the rights of unwed fathers in adoptions. Individual state putative father registries cannot protect the parties in such adoptions, because registration in the State of conception will not ensure notice of an adoption proceeding in another State.
This Article analyzes putative father registries and proposes federal legislation to create a national database that will enhance and connect the state and local registries. Issues and events leading to the development of registries are reviewed in Part I. Putative father registry mechanics and applicable case law are analyzed in Parts II and III. The case law examined includes unwed fathers' rights, in-state paternity registry contests, requests for impossibility exceptions exempting registry requirements, and tortious interference with parental rights. Part IV argues for a national putative father registry database and investigates avenues of federal participation and recommendations for specific legislation.
I. BACKGROUND
In 1972, the Supreme Court first upheld and defined the constitutional rights of men who fathered children out of wedlock. (5) In Stanley v. Illinois, the Court held that equal protection requires state law to treat the unmarried mothers and fathers of children similarly. (6) This heralded a societal shift away from deferring to the wishes of unmarried mothers.
Upholding the constitutional rights of unmarried fathers to their children does not assure that these men will assume parental responsibilities, however. Protecting paternal rights of unmarried fathers without requiring corresponding responsibilities fails to ensure permanent and stable parents for children because unmarried fathers who have no legally defined role in their children's lives have no legal requirement for custody or support. Consonant with enhancing parental responsibility of undefined and non-custodial parents, between 1984 and 1996 Congress passed legislation and established child support guidelines designed to increase the adequacy of child support sums (7) as well as enforcement of its payment. (8) The impact of child support legislation on adoption is not documented, but, unmarried fathers certainly factor into their adoption decision the nearly inescapable requirement to pay child support for at least eighteen years if the child is not adopted.
Adoption has evolved over time in response to these legal developments and to social trends as well. In the 1970s, the number of American adoptions decreased in association with the legalization of abortion and society's increasing acceptance of single motherhood. (9) While reports on adoption rates conflict, that downward trend apparently continued for the adoption of infants at least through 1995. (10) In contrast, the total number of all children adopted in 1992 was a substantial 127,441, which represented a seven percent increase over the prior year. (11)
The number of adoptions is also affected by foster care policies, which in turn are affected by laws regarding the termination of parental rights. The number of adoptions of children from foster care decreased up to 1990, before federal and state initiatives caused the number to increase dramatically. (12) Child protective services emphasize a public policy of family preservation that prioritizes returning foster children to the home of their biological parents. (13) But, "[a]bout one third of the children that return to their homes from foster care re-enter the foster care system within six months." (14) This cycle of entering foster care, returning home, and re-entering foster care blocks children's availability for adoption and consumes time during which the chances for children to find permanent adoptive families diminish. (15) One of the factors responsible for foster care drift is the difficulty in terminating parental rights, including those of the unwed father. (16) Thus, the birth father problems that burden the stable placement of children for adoption exist for foster children as well as newborns.
Adoption is an important issue to the United States not merely because it affects many families. Every child adopted is less likely to grow up in poverty, more likely to obtain an education, and more likely to have a participating father than a child raised by a single mother. (17) Thus, the personal effects of adoption upon the individual child and its economic effects upon the nation are significantly positive.
Suitably, the federal government has implemented a pro adoption policy. In 1994, Congress authorized federal tax credits to adoptive parents for qualified adoption expenses and provided financial incentives to States for each foster child or special needs child adopted over a base number. (18) In 2001, Congress and President Bush re-authorized and increased the adoption tax credit. (19) While he was in office, President Clinton directed an Executive Memorandum to the Department of Health and Human Services effectively recommending strategies to double the number of American adoptions. (20) Facilitating and supporting adoptions has bipartisan support.
Despite pro-adoption federal policy and case law protecting the parental rights of birth parents, contested adoptions continue to arise. Wrenching publicity caught the nation's attention when the thwarted father of Baby Jessica, who was born to an unwed mother, disrupted the adoption of a then two-year-old Jessica. (21) Babies Richard and Emily followed Jessica, and in their wake States began following New York's lead by enacting putative father registries for unwed fathers in an effort to decrease contested adoptions. (22) The Uniform Adoption Act requires notice either personally or through publication, (23) while the Uniform Parentage Act and over thirty States currently have putative father registries. (24)
The phenomenon of contested adoption leads to litigation and demonstrates the inadequacy of existing legal regimes to secure adoption placements. A 1998 tort award of large damages for the intentional interference with parental rights further expanded the rights of unmarried fathers in newborn adoptions. (25) This case involved an unwed West Virginia father whose efforts to establish paternity and to prevent the child's adoption were thwarted by the mother who moved between States during her pregnancy. She delivered the baby in California and ultimately relinquished her child to a Canadian couple. This case involved a novel application of tort law to a thwarted father adoption and opens the gates to more such litigation. (26) It also demonstrates the inadequacy of individual state laws to protect the rights of unmarried biological fathers, adoptive parents, and children in a globalized world in which interstate and even international travel is commonplace.
Children, their biological parents, and their adoptive parents experience extreme anguish in a disrupted adoption. Intentional interference with parental rights torts can exact huge economic and psychological tolls on all the parties and their attorneys. Adopted children, birth mothers, unmarried birth fathers, adoptive parents, and their respective attorneys require a solution upon which they can comfortably rely. Individual state putative father registries can alleviate problems where the adoption is filed in the State of conception as long as the statutory scheme contains a time deadline within which the father must file. But individual registries cannot cure contests arising where the adoption is filed in a State unknown to the father. Imagine this hypothetical: college students in Missouri conceive a child, and the birth mother travels to deliver and relinquish the baby not in her home State of Illinois, but in her grandmother's home town in Nebraska. In this scenario, the birth father has not been notified of his duty to file with the Nebraska registry to protect his parental rights irrespective of whether the mother concealed or disclosed the pregnancy.
Congress should enact a national putative father registry database to address the interstate effect of adoptions. This system would have the dual purposes of facilitating notice of adoptive proceedings to unmarried birth fathers in interstate adoptive situations and of promoting secure adoptive placements. The state putative father registries should file with the national putative father registry database for every man who files with the State. Each State should maintain its own statutory adoption scheme including regulation of the parental rights and responsibilities of unwed fathers. The national link should provide a means for the registered unwed father to obtain notice of the need to protect his parental rights in any of the participating States despite the interstate travel of the mother. The federal government should offer funds to the States for the erection and maintenance of compatible registries.
States can implement a variety of steps to facilitate the adoption process and ensure protection of fathers' rights. All States should enact putative father registries that permit pre-birth registration and guarantee notice to a father who files within a state-set time limit, beyond which notice is not guaranteed. The registries should exist in a format compatible with a national database. States should structure individual state filing such that it is immediately (both by electronic means and by hard copy) transmitted to the national registry. State laws should provide for publicizing the existence and purpose of the registries and notify fathers that filing with the registry may be used as probative (though not conclusive) evidence in a paternity child support action. State laws should require attorneys, state agencies, and/or adoption agencies in a planned or pending adoption to search the nationally linked putative father registry before final disposition of the adoption proceedings.
Furthermore, States should amend their long arm statutes to assert personal jurisdiction over the putative father who was served or not served notice in compliance with state law consonant with the search results of the national database--where the State of adoption has proper jurisdiction over a filed adoption. States should immunize attorneys, agencies, and parties from suit for tortious interference with parental rights where they have complied with the State's adoption procedure on putative fathers, including searching the national database. States should place a surcharge on the filing of adoption petitions to fund their state registries and should charge a putative father registry filing fee in order to cover the cost of filing with the national registry. States should develop a procedure for men to register in forma pauperis where appropriate.
To protect the privacy of women, Congress and the States should regulate who may search the registries and criminalize fraudulent registry filings and searches.
While a national putative father registry link may protect the rights of birth fathers, it does not assure that these children will have responsible fathers. State laws should also compel unmarried fathers to legally establish paternity and assume parental responsibilities during the period of pregnancy of the mother and within a short and finite period of time after the birth where they wish to thwart adoptions. The end result advances the best interests of children either by insuring the active participation of birth fathers or securing prompt and permanent adoptive placements.
II. PUTATIVE FATHER REGISTRY MECHANICS
A. Registration and Notice
The mechanics of paternity registries require a man who believes he may have fathered a child out of wedlock to file a notice with the appropriate state agency. Putative father registries typically operate by providing any registrant with notice of any adoption petition for a child of the woman named in his filing. (27) Notice provides the man with knowledge of any adoption plan, and thus gives him the opportunity to consent to the adoption, default on the adoption petition, or argue at the initial hearing that he should parent the child instead of the prospective adoptive parents. Such a hearing is intended to ensure the best interests of the child either by establishing the biological father's intent and capacity to parent or by securing the adoptive placement. The putative father registries may exist alone in a State to guarantee notice, (28) but more commonly they co-exist with a statute that provides consequences for failure to file by the deadline. These consequences delimit the father's rights either by cutting off his right to notice, (29) voiding his right to consent to an adoption, (30) and/or establishing grounds for termination of his parental rights. (31)
Paternity registry deadlines commonly operate to cut off the notice guarantee for those men registering after the State's deadline. States have taken different approaches to deadlines--some setting a finite deadline measured from the child's birth, some setting a deadline up to the time a petition for adoption is filed, and some setting a hybrid deadline. (32) These deadlines range from five to thirty days after birth. (33) Typically, statutes permit registration prior to birth, making the effective period of registration nine months plus the State's deadline period. (34) States tend to strictly construe registry deadlines against fathers. (35)
Where a State's registry has a deadline and a man fails to register by that deadline, he may or may not be entitled to notice of an adoption depending upon state law and constitutional due process guarantees. The Supreme Court has held on three occasions that an unmarried father is constitutionally entitled to notice of adoption proceedings of a child with whom he has established a relationship. (36) Additionally, state law often entitles men to notice if they have filed a timely notice of intent to claim paternity with the putative father registry, have been adjudicated to be the father, are the "presumed fathers," or are required to give consent. (37) State statutes may define a presumed father as one who has married or attempted to marry the mother within certain time frames, has acknowledged his paternity in writing and filed with the state bureau of vital statistics, has consented to have his name on the birth certificate, or has tissue or blood testing confirming his biological paternity. (38)
Thus constitutional guarantees and state law requirements limit the deadlines that can be imposed by putative father registries in order to protect those fathers who have assumed certain responsibilities or established relationships with their children. Nonetheless, the full putative father registry paradigm places increasing responsibility on the man to protect his own paternal rights. The intention of this system is to enable the father to effectively assert paternity and assume related duties, or to timely foreclose his rights so that the child may safely develop ties to adoptive parents without risk of disruption.
B. Jurisdiction over Interstate Adoptions and Non-Resident Fathers
The issue of notice as provided by putative father registries intersects with an analysis of state-court jurisdiction over interstate adoption and non-resident fathers. State courts routinely terminate the parental rights of absent fathers, some of whom are non-resident fathers, because they default on adoption petitions after published service. Searching the national putative father registry database not only promises to facilitate personal service to registered fathers, its existence may statutorily eliminate the need for published or personal service in those cases where the father has not registered and no constitutional guarantee requires notice. Many jurisdictional issues are raised, however, about judicial proceedings affecting the parental rights of absent and non-resident fathers.
Several issues bear on the jurisdictional analysis: 1) whether States must obtain personal jurisdiction over non-resident birth parents in adoption cases or whether notice and an opportunity to be heard suffices; 2) whether a State has subject matter jurisdiction over the adoption of the child and the relevance of the Uniform Child Custody Jurisdiction Act (UCCJA) (39) in competing state court determinations of paternal rights; 3) whether compliance with a putative father registry notice scheme abrogates whatever need for personal jurisdiction exists and/or satisfies constitutional requirements; and 4) the relevance and applicability of long arm statutes on such jurisdiction. (40)
1. Is Personal Jurisdiction over the Father Required?
In 1953, the United State Supreme Court in May v. Anderson (41) held that a state court must have in personam jurisdiction over a parent to make an order that validly affects his/her rights to child custody. In May, a Wisconsin court did not have in personam jurisdiction in a dissolution necessary to validate child custody order with personal service on the mother living in Ohio with her children. (42) This holding suggests that service of notice by publication would not establish in personam jurisdiction over a non-resident parent for matters affecting child custody--a question that the court has not addressed in subsequent cases (43) and had previously expressly refused to address in New York ex rel. Halvey v. Halvey. (44)
In 1972, the Supreme Court recognized in Stanley v. Illinois (45) an unwed father's right to notice and an opportunity to be heard. (46) The Court has subsequently narrowed that right to fathers who have come forward, identified themselves, and developed a relationship with, and assumed some responsibility for, the child. (47) The Court, which decided Stanley nineteen years after handing down May, cited May in its Stanley opinion, but did not otherwise suggest that personal jurisdiction, as distinguished from notice and the right to be heard, was constitutionally required to resolve a biological father's rights in an adoption. (48) Personal jurisdiction was not at issue in Stanley, which was a wholly intrastate Illinois dependency case.
The common practice of publishing notice of an adoption to a non-resident father may not establish personal jurisdiction under May. A State's long arm statute may be adequate for the State to obtain jurisdiction over non-resident fathers who have conceived a child within the State, however. (49)
Child custody orders differ substantially from adoption orders because custody orders are modifiable, apportion visitation and custody, and do not sever the relationship between parent and child. In contrast, adoption orders are final, non-modifiable, and ultimately terminate all biological parental rights, effecting a permanent severance between parent and child. While scholars agree that personal jurisdiction is required over a parent in matters of child custody, (50) the same scholars observe that the opinion in Stanley is unclear with respect to whether only notice and an opportunity to be heard is required to terminate the parental rights of a birth parent. (51) The proffered rationale is that requiring personal jurisdiction would destroy adoption practice. (52) Whether this rationale will satisfy due process may depend upon whether providing only notice and an opportunity to be heard is adequately related to advancing the State's legitimate interest in securing permanent placements for children in adoption and whether a State could obtain personal jurisdiction without jeopardizing the State's interests in adoptive placements. (53)
2. Subject Matter Jurisdiction and the Relevance of the UCCJA
Whereas competing courts analyze who has jurisdiction over a father's rights, the UCCJA has come into play in determining subject matter jurisdiction, or jurisdiction over the child. (54) For example, during an Oregon adoption case, a putative father filed a paternity action in his home State of California but the Oregon court terminated the father's rights under its own putative father registry statute. Upon analysis, the Oregon court found that the child was born in Oregon, that his birth mother...
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