Joanna L. Grossman

Can Unwed Fathers Block Adoptions? Navigating a Tricky Legal Terrain

By JOANNA L. GROSSMAN


Tuesday, December 22, 2009

When can an unwed father's biological child be adopted without his consent? In a recent ruling, the Nebraska Supreme Court held that the state's statutory scheme for determining the rights of unwed fathers was unconstitutional as applied to the plaintiff before them – an unwed father who had not been adjudicated to be a legal father, but who had maintained a longstanding familial relationship with the child.

Unwed fathers in most states do not have the same rights as unwed mothers vis-à-vis their children. Their parental rights turn not just on biology, but also on whether they have carried out the obligations of fatherhood and, in some situations, whether they have complied with technical legal requirements necessary to establish their status. The Nebraska case, In re Corbin J., reveals the limitations of this approach to determining legal fatherhood.

In re Adoption of Corbin J.: The Facts

The recent Nebraska case involves a child, Corbin J., who was born to Rusti M. in 1999. John J. is named as the father on Corbin's birth certificate, and no one disputes that John J. is, indeed, the child's biological father. Rusti and John never married, but, for the first three years of Corbin's life, the three lived together as a family. In 2002, however, Rusti took Corbin and left the house, leaving no indication of their whereabouts.

Shortly after leaving, Rusti filed a court action seeking to establish John's paternity, to get full custody of Corbin, and to impose a child support order on John. The trial court issued a temporary order granting custody to her and visitation to John, and ordering John to pay child support. For a little more than a year, John exercised his visitation rights and paid child support. During that time, Rusti married another man, Ilja M.

In July 2003, the court dismissed Rusti's paternity action for lack of prosecution (Rusti, in other words, had not taken all the steps necessary to pursue the petition.) After that ruling, John stopped paying child support for Corbin, though he continued paying for Corbin's health insurance.

In September 2003, Rusti did not arrive at the time and location where John usually picked up Corbin for visitation. Moreover, John claims that Rusti's phone had been disconnected and he had no way of knowing how to track them down. For five years, John had no contact with Corbin. He says he could not find them; she says he knew the location and phone number of her family's ranch and could easily have found them.

John received a legal notice in September 2008 informing him that Ilja, Rusti's husband, was planning to file a petition to adopt Corbin. The lawyer representing Rusti and Ilja sent John the forms necessary to relinquish his parental rights and to make Corbin available for adoption by his stepfather. However, John did not sign the forms and filed a formal objection to the adoption once the petition was formally filed in January 2009.

Over John's objection, the adoption was granted.

Background on the Rights of Unwed Fathers

The issue on appeal before the Nebraska Supreme Court is whether the trial court correctly treated John as a "putative" father – one who was without standing to object to the adoption because he had failed to properly exercise his rights – or whether the Constitution requires that John's rights vis-à-vis Corbin be more robustly protected.

A little background on adoption law and unwed fathers' rights is necessary to understand the choice before the court:

As a general rule, a child is available for adoption when its biological parents have surrendered their parental rights or had them terminated. An adoption has the effect of severing the legal ties between the child and his biological parents, and establishing a new parent-child relationship with the adoptive parents.

In the context of a stepparent adoption, a child can retain legal ties to one biological parent, while being adopted by that parent's spouse. But here's the hitch: A child cannot have three legal parents, so, before a stepparent adoption can proceed, the child's other biological parent must be out of the picture, legally speaking. Stepparent adoptions can thus take place when the other legal parent has died, has had parental rights terminated, has relinquished parental rights, or, as allegedly occurred in this case, has failed to take the steps necessary to have legal rights as a father in the first place.

Children born out of wedlock were considered the "child of no one" in early American law; as a corollary to this principle, neither unwed mothers nor fathers were legally tied to the child. States changed that rule for mothers during the Nineteenth Century, assigning the same rights and obligations of motherhood regardless of legitimacy. But for unwed fathers, the law's shift was slower and, ultimately, the law stopped short of granting unwed fathers legal rights on par with those of unwed mothers.

By the early Twentieth Century, virtually every state imposed a duty of support on unwed fathers, enforceable through "bastardy" proceedings in civil or criminal court. But the obligation of support came with little or nothing in the way of parental rights for the fathers who desired them. Those rights came later, after a series of decisions by the U.S. Supreme Court, beginning in the 1970's, that established constitutional protection for the rights of unwed fathers.

In the 1972 case of Stanley v. Illinois, the Supreme Court ruled that it was unconstitutional for Illinois to remove three children from their father when their mother had died, simply because the couple had never married. The law in question presumed unwed fathers to be unfit, and relied upon that presumption to justify the placement of the children in foster care. But the Court said that this categorical denial of parental rights for unwed fathers violated the Due Process Clause, which had been interpreted to provide strong protection for the right of parents to control the care and upbringing of their children. In another case, Trimble v. Gordon, the Court struck down a law categorically denying illegitimate children the right to inherit from unwed fathers.

States responded to these cases by eliminating most of the categorical rules regarding unwed fathers. But rather than equalize the rights of unwed mothers (who were automatically given the full benefit of a parent-child relationship) and unwed fathers, most states adopted a compromise approach that gave full rights to unwed fathers only if they had satisfied certain criteria.

Under a typical law, an unwed father could earn full parental rights through marriage to a child's mother, being named on a birth certificate, being adjudicated the biological father, or living openly with the child and its mother. Most states also set up a "putative father registry," which would permit men who registered to be notified of proposed adoptions or other actions regarding their children.

Can Unwed Fathers Refuse to Allow Their Children to be Adopted by Another Man?

In two subsequent cases, the Supreme Court addressed the specific right that is at issue in Corbin J. – the right of unwed fathers to veto a proposed adoption. In the 1979 case of Caban v. Mohammad, the Court struck down a New York law that gave unwed mothers, but not unwed fathers, the right to consent to (or veto) an adoption of their child.

The trial court in that case had permitted two children to be adopted by their stepfather without the consent of their biological father. The children were 8 and 10 years old when the adoption was proposed and had lived with both biological parents during their early years of life.

The Court rejected the idea of "any universal difference between maternal and paternal relations at every phase of a child's development," insisting that unwed mothers and fathers be treated equally with regard to children with whom they had an existing relationship. However, it left open the question whether unwed mothers and fathers necessarily deserved equal treatment with respect to infants, with whom they had not yet developed a relationship.

In 1983, the Court answered that question in Lehr v. Robertson, a case also involving a proposed stepfather adoption. In that case, the child was born in New York, which maintained a putative father registry. The child's biological father, Jonathan, was not listed in the registry, but he filed an objection to the proposed adoption of his daughter by his stepdaughter once he learned of the proceedings. He argued that a putative father's "actual or potential relationship" with a non-marital child is protected by the Due Process Clause, and also challenged the statute for providing greater procedural rights to unwed mothers than unwed fathers.

The Court, however, upheld New York's statutory scheme and its bypassing of Jonathan's consent to the child's adoption. By not satisfying any of the statutory criteria for legal fatherhood, the Court reasoned, Jonathan had not earned full-blown protection of his parental rights. As the Court wrote, the biological tie "offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development. If he fails to do so, the Federal Constitution will not automatically compel a state to listen to his opinion of where the child's best interests lie."

The Nebraska Supreme Court's Ruling in In re Corbin J.

Like most states, Nebraska has a somewhat technical scheme for dealing with the rights of unwed fathers. An adjudicated father – one who has been determined to be the father by a court of law – must give his consent in order for an adoption to proceed. A mere "putative father," however, has less solid rights.

To have standing to object to an adoption, a putative father must file a "Notice of Objection to Adoption and Intent to Obtain Custody" with the state's registry within five days of the child's birth or of receiving notice of a proposed adoption. The putative father's failure to do so entitles the mother to request a certificate of non-compliance; and that certificate eliminates the need for the father's consent to an adoption. A putative father, in other words, loses his standing to object to adoption unless he makes the timely filing required by the statute.

In the Nebraska Supreme Court case, John argued that he was an adjudicated father, but he lost on this claim. Although Rusti had brought a paternity action against him, the court had issued only a temporary order before the suit was dismissed for lack of prosecution. His paternity was therefore never "adjudicated" in a final court order.

As a putative father, John had to jump through an additional hoop in order to gain standing to object to the adoption. But he did not file the requisite "Notice of Objection" within five days of learning of the Ilja's proposed adoption of Corbin. He did make his objection clear, but not until the petition to adopt was actually filed, six months later, and not in the right technical form. Under the Nebraska code, his failure to make the appropriate filing in a timely manner means, ultimately, that his "consent shall not be required" for the proposed adoption.

The Nebraska Supreme Court, however, ruled that the statutory scheme was unconstitutional as applied to John. The constitutional violation, in the court's view, arose from the fact that John both was Corbin's biological father and had "established a familial relationship" with him. These two factors, the court reasoned, were enough to trigger constitutional protection for John's parental rights – per the U.S. Supreme Court's precedents on unwed fathers' rights.

Those cases, discussed above, distinguish between biological fathers who have developed a parent-child relationship with the child at issue and those who have not. To the extent that the putative father laws do not reflect that distinction, the Nebraska court held, they cannot be constitutionally applied. Here, John's longstanding relationship with Corbin was disregarded completely in the Nebraska lower-court proceedings; his parental rights were effectively severed because of his mere failure to file a simple form, just as they would have been had he never laid eyes on Corbin.

The Right Ruling; Unwed Fathers Deserve Rights When they Shoulder Commitments

The court in Corbin J. was right to stand up for the rights of unwed fathers – or at least this particular one. The putative father registries, which determine rights for unwed fathers in many states, are seldom used. Thus, there may be many men like John who are both biological and functional fathers, and yet are deprived of parental rights by technicalities. Balancing the rights of unwed fathers with adoption procedures and their goals can be tricky, but the Nebraska court was right here to side with John. Although there may well be good reasons to distinguish legally between unwed fathers and mothers in some cases, men who, like John, have acted as a father – and carried out the concomitant obligations – ought to see the benefits of that status as well.


Joanna Grossman, a FindLaw columnist, is a professor of law and John DeWitt Gregory Research Scholar at Hofstra University. She is the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009), an interdisciplinary collection that explores the gaps between formal commitments to gender equality and the reality of women's lives. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.