The United States Supreme Court initially acknowledged the right to raise children in 1923 when it held that the liberty interest referred to in the Fourteenth Amendment was “not merely freedom from bodily restraint but also the right of the individual to … establish a home and bring up children ….” Despite this well recognized right, many parents chose to place their children for adoption for a myriad of reasons.
Over the years, adoption in the United States has become more recognized, legally structured and more common. In fact, today every November is National Adoption Awareness Month. In many states, the Probate and Family Courts set a specific day as National Adoption Day and judges make a concerted effort to clear their dockets to finalize the adoption of children who have been in state foster care.
There is a voice in the adoption process that is often unheard. Often to the detriment of children, that voice belongs to the unknown or unnamed father. Many possible fathers are never given the opportunity to decide whether to parent their child or participate in the adoption planning. Why is this so? Quite simply, many states have no adequate process of notifying the father, or expectant father, other than the mother’s identification.
For instance, the Massachusetts statute states that for a possible father to preserve his rights, he must take action prior to the termination of the mother’s rights. The statute presupposes that the mother has identified the father and that he is aware of the mother’s pregnancy and adoption plan. If the father is not notified by the mother of her pregnancy and plan to adopt, the father’s rights to the child can be terminated before he ever knows they exist.
Consequently, the father is in the precarious position of relying upon the mother to have his voice heard. A solution to this problem is a National Responsible Father Registry (hereinafter “NRFR”). This is a confidential database where a possible father of a child to be born, or of a child who has been born out of wedlock, may file notice of intent to claim paternity within a prescribed time. A NRFR would protect the right of a possible father to receive notice of any proceedings involving paternity, termination of rights, or a pending or planned adoption of a child he may have fathered. The registry would also give him notice of the child entering into state custody. With the notice that a child has been born, the father may also come forward and assert his parental rights and the opportunity to parent his child.
A NRFR also relieves the mother of having to identity the father, should she not want to, for whatever reason. For example, she would not have to disclose to anyone that she did not know the father, or that she is afraid that disclosing the father’s identity will jeopardize her safety or that of the child. With an active and well thought-out NRFR, the mother will not circumvent the child’s or father’s parental rights, whether intentionally or unintentionally.
Having the father involved from the outset has many advantages for the child, including the possibility of an early adoption into a stable family environment. Gone will be the fear of adoptive parents that a father may show up later and disrupt the adoption. The placement will be a permanent one. Additionally, in situations where the father chooses to participate in the adoption process, more reliable medical history and other notable information will be available.
A NRFR does not compel a possible father to identify himself. It simply levels the playing field so a possible father may assert his parental rights to choose to be a father and take an active role in making decisions for the health, welfare and best interests of his child, without the father’s rights being obstructed. All of the participants who can and want to contribute to placing children in safe and loving homes deserve a voice in the process.
There are responsible father registries in at least 33 states. This article addresses the importance of establishing a NRFR which, by its very nature, will allow possible fathers to exercise their parental rights if a pregnancy and eventual birth results from sexual relations with a woman while balancing the constitutional rights of all those involved in the pregnancy. Part II of this Article will discuss the trends in adoption in the United States as well as the rise in state-run father registries. Part III will discuss the constitutional concerns presented in the absence of a NRFR, the constitutional challenges that the state-run father registries have confronted and the efforts that have been made to date to establish a NRFR. Part IV will conclude by discussing the need for a NRFR and the constitutional balance a NRFR provides among all those involved in the adoption proceeding.