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.


  1. We have adopted twice now and in both situations the birth fathers were "absent". My daughter's BF had known about her and abandoned the whole sitation, he came back about a year later and was un-aware that she had been placed. But, after 5 years he has still never made any attemtp to gain rights. My son, was born in Utah and his BF is here as well. He was un-disclosed to us, we have no idea what the situtaion was and if he even knew about him. So, being here in Utah, if he knew, he should have been aware of the laws and what he needed to do. For me, this is a huge fear of mine. Wondering if he had no idea of the pregnancy.. would he find out and decide to fight for parental rights? I think the law is very clear on what needs to be done and is more than fair to give a BF time to accept responsibility for the child. I guess in an out of state situation, it would be different, they are not aware of the Utah laws. But, I don't think it's fair to let them come back months later and fight for parental rights. Somehow those kinds of situations need to be adressed, so they better understand how Utah law works and what rights they do or don't have right from the beginning. In our situation, if my sons's BF were to come forward and say he did not know about the pregnancy.. would he have grounds to fight for custody? I think as adotpive parents this is all of our worst nightmare, to think of a BF coming back and wanting the child. As you said before, in the "best interest" of the child isn't always the way it works out. Which is VERY unfortunate.. the child's well being should always be number one priority!

  2. Utah does everything possible to steal babies away from their biological fathers. They help the mothers hide their pregnancy from the fathers. They allow women to come from outside the state to give birth, therefor making it easier to take the baby away from the father.

    This article by the Salt Lake City News is very telling about the difficulty Utah puts on fathers:

  3. You mention that the birth mother came to Utah to give birth. I have read she gave birth in Virginia. Can you clarify?

  4. I read the article Susie posted and find it very disheartening that "out of state" fathers are not given more of an opportunity to make a choice for themselves. I TOTALLY agree that there should be a National Putative Father's registry set in place. That would make it more fair for them to know what they need to do, regardless of what state the baby is born in. It's a hard situation, BM are doing what they feel is right for their babies in the sense that they want to avoid a life of fighting over the child. They want a stable environment for them and so they choose adoption. And while I think Utah may be a bit too strict on the law for out of state father's, I agree with the "put you're money where you're mouth is" thought. If they want to care for their baby I feel they SHOULD be made to lay out a clear plan, rather than just say they will and, drop the mother and child later on.

  5. So much of it has to do with intent. It is generally not the intent of birth mothers to hide the pregnancy as it is have the freedom to make a decision and follow through with it. It is certainly not the intent of Utah to "kidnap" children, but to try and act in the best interest of the child. Do birth fathers have the same intent?

  6. I agree with Utah's Birthfathers laws. I don't know how Utah is "stealing" or "kidnapping" children as many people say it does. Utah does not force women to come there to give birth to their children and then "kidnap" or "steal" the child. The law is looking out for the BEST interest of the CHILD. Why is that wrong? As this post said above that if the birthfather was involved and committed to the birthmother than the birthmother would not find herself in the situation to make the choice of adoption. These birthmothers are amazingly strong women who have to make an choice that is total SELFLESS. She is thinking of what is best for her child. Where is the birthfather at this time? Is he being as SELFLESS? Now there are those RARE situations the birthfathers want to be involved but aren't BUT the cold hard truth is that the majority of birthfathers don't want to be involved or don't care to be involved. In those RARE situations the best interest of the CHILD should be looked at. Not the interest of the adopted family or the interest of the birthfather but the interest of the CHILD. This law does that!

  7. ABSOLUTLY.. these women are amazingly strong and caring, and if it were not for them.. we would not have these precious children in our arms!! They are making the hardest decision of their lives in giving their child up for adoption. Imagine how hard that must be!! I think Utah's laws should stay as they are but, the national registry needs to be set up. Lets face it.. if there were a national registry how many BF's would really come forward and take responsibilty for their child?? Sadly, probably not many..