Bringing hearts together
Wednesday, September 29, 2010
Birthfather Laws Explained by Donna, Director of Heart to Heart
Many of us have been following the case in the news of the Virginia unmarried biological father who is attempting to gain custody of his child that was placed for adoption with a Utah family. The biological mother was from Virginia and came to Utah where she give birth to the child and placed through a local adoption agency.
This case has again raised the question, are Utah laws too stringent on unmarried biological fathers?
In this article I would like to briefly review the Utah law, then invite you to share with us your thoughts about this law. As an agency, we are an active part of the Utah Adoption Council that helps in writing the adoption law, so please give your comments.
The intent of the law is described in the Utah Adoption Act found in the Utah Code 78B-6 is stated as follows:
“It is the intent and desire of the Legislature that in every adoption the best interest of the child should govern and be of foremost concern…” 78B-6-102 (1)
This is the charge of a child placing agency as well as the courts, “to act in the best interest of the child.” This is a weighty responsibility as it is not always evident what is in the best interest of each child. To try and clarify this charge the Utah Adoption Act states in 78B-6-102 (5) (a-f) that:
a. The state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner, in preventing the disruption of adoptive placements and in holding parents accountable for meeting the needs of children;
b. An unmarried mother, faced with the responsibility of making crucial decisions about the future of a newborn child, is entitled to privacy, and has the right to make timely and appropriate decisions regarding her future and the future of the child, and is entitled to assurance regarding the permanence of an adoptive placement;
c. Adoptive children have a right to permanence and stability in adoptive placements;
d. Adoptive parents have a constitutionally protected liberty and privacy interest in retaining custody of an adopted child;
e. An unmarried biological father has an inchoate interest that acquires constitutional protection only when he demonstrates a timely and full commitment to the responsibilities of parenthood, both during pregnancy and upon the child’s birth; and
f. The state has a compelling interest in requiring unmarried biological fathers to demonstrate commitment by providing appropriate medical care and financial support and by establishing legal paternity in accordance with the requirements of [the] chapter.”
So basically, it is the responsibility of the unmarried biological father to take action in maintaining his right to have a say in what happens to the child.
The statute further explains in 78B-6-121(3) that a biological father can have the right to give or withhold his consent to the adoption if he does the following: files in a district court of Utah that he is fully able and willing to have full custody of the child; sets forth his plans for the care of the child; agrees to a court order of child support and the payment of expenses incurred in connection with the mother’s pregnancy and child’s birth; offered to pay and paid a fair and reasonable amount of the expenses incurred in connection with the mother’s pregnancy and the child’s birth, in accordance with his financial ability, unless, he did not have actual knowledge of the pregnancy, was prevented from paying the expenses, or the mother refused to accept his offer to pay.
The unmarried biological father needs to do this in a timely manner, i.e. prior to the birthmother relinquishing her rights or 20 days after the day that the unmarried biological father knew, or through the exercise of reasonable diligence should have known that the child or child’s mother were in Utah, intended to give birth or the child had been born in Utah, or the mother intended to place the child for adoption under the laws of the Utah. 78B-6-122(1)(a)
In summary: The unmarried biological father needs to file with the Utah Paternity Registry and the court that he wants and is able to care for the child. He needs to indicate that he has helped or has been willing to help care for the mother and child according to his abilities. And he needs to exercise reasonable diligence to learn what is going on with the mother and take action in a timely manner. All of this is to “demonstrates a timely and full commitment to the responsibilities of parenthood, both during pregnancy and upon the child’s birth.”
I recognize this is a very brief and somewhat incomplete synopsis of the law, but I hope conveys the essence of what the law requires. It is our experience as an agency that balancing the sometimes conflicting interests of the adoptive family, biological mother and biological father is challenging. Ultimately, we and the courts try to act in what is perceived as the best interest of the child as outlined above. A biological father who demonstrates his commitment to parenthood can and should have a right to the child. Unfortunately, we find that this is rarely the case in the situations we work with. As a rule, if the biological father were involved and committed to the biological mother and the child, that mother would generally not find herself in the position to place the child for adoption. But as indicated earlier, “faced with the crucial decisions about the future of a newborn child,” we feel she “is entitled to privacy, and has the right to make timely and appropriate decisions regarding her future and the future of the child, and is entitled to assurance regarding the permanence of an adoptive placement”.
There may be exceptions, of course, as there may be unmarried biological fathers that are willing and able to take on the responsibilities of parenthood but, for whatever reasons, are prevented from doing so. The intent of the law is to balance his rights with the needs and rights of the adoptive family, biological mother and ultimately the child.