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Are Biological Fathers Receiving Appropriate Due Process When Their Parental Rights Are Terminated?

When a child is born to unmarried biological parents or results from a married biological parent's affair, there may be a conflict between the biological parents concerning appropriate parenting for the child.
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When a child is born to unmarried biological parents or results from a married biological parent's affair, there may be a conflict between the biological parents concerning appropriate parenting for the child. If the biological mother, with or without consultation with an adoption agency, determines that termination of the biological father's parental rights is in the best interest of the child, the legal question of the appropriate notice to the biological father and the legal reasons for the termination arises. This comment suggests that state and federal legislatures, as well as the U.S. Supreme Court, clarify and update the notice and termination hearing due process rights of biological fathers. While the current law is briefly mentioned in an incomplete educational overview, this comment is not intended to provide legal advice. Consult an experienced attorney in specific family law situations.

Three U.S. Supreme Court decisions from the 1980s use the term "putative father" (one who claims or is alleged to be the biological father). Each decision is briefly overviewed:

A 1981 unanimous decision stated that an imprisoned individual named by an unwed mother as the putative father was entitled to free blood testing evidence in determining paternity (Little v. Streater).

A 1983 6:3 split decision upheld a New York State putative father registry and adoption process that resulted in the termination of the biological father’s parental rights (Lehr v. Robertson). The majority opinion noted:

"In this case, we are not assessing the constitutional adequacy of New York's procedures for terminating a developed relationship. Appellant has never had any significant custodial, personal, or financial relationship with Jessica, and he did not seek to establish a legal tie until after she was two years old. We are concerned only with whether New York has adequately protected his opportunity to form such a relationship. ... If this [registry system] scheme were likely to omit many responsible fathers, and if qualification for notice were beyond the control of an interested putative father, it might be thought procedurally inadequate. Yet, as all of the New York courts that reviewed this matter observed, the right to receive notice was completely within appellant's control. By mailing a postcard to the putative father registry, he could have guaranteed that he would receive notice of any proceedings to adopt Jessica. The possibility that he may have failed to do so because of his ignorance of the law cannot be a sufficient reason for criticizing the law itself. The New York Legislature concluded that a more open-ended notice requirement would merely complicate the adoption process, threaten the privacy interests of unwed mothers, create the risk of unnecessary controversy, and impair the desired finality of adoption decrees. Regardless of whether we would have done likewise if we were legislators instead of judges, we surely cannot characterize the State's conclusion as arbitrary."

A 1989 6:3 decision involved a married biological mother whose affair with the biological father resulted in a child (Michael H. v. Gerald D.). The biological father was faced with a California statute that presumed paternity by the husband in the marriage that the majority opinion upheld as being a matter of legislation and not constitutional law.

As many commentators have noted, the currently widespread typical U.S. system for terminating the parental rights of biological fathers contains procedural shortcomings. Among the problems are the following:

.The biological father may be unaware of the pregnancy and birth and without notice is unable to either prepare an acknowledgment of paternity or participate in a state "putative father registry" system.

.The acknowledgment and registry systems have a very limited time frame in which action must be taken.

. The existence of state putative father registry systems is either not publicized or the process is not transparent.

. The biological mother may travel with the infant to a state with relaxed termination of parental rights standards without the biological father being aware of what is occurring.

. A national putative father registry database would provide better notice to judges in adoption cases and avoid conflicting state standards.

. Parental rights are being terminated with a limited amount of procedural due process that is not commensurate with the fundamental nature of parental rights.

. Under a "best interest of the child" standard and desire to have adoption finality, there is an inappropriate rush to judgment.

. The current system seemingly provides biological mothers more legal rights than biological fathers.

. The current legal standards were created prior to scientific advances in DNA testing.

. Societal expectations concerning male parenting skills and the nature of "family" have significantly changed since the U.S. Supreme Court last considered the termination of the rights of putative fathers.

. A number of procedural issues surrounding the termination of parental rights have never been addressed by the U.S. Supreme Court.

. The current system does not adequately address the interest of grandparents.

Consequently, state and federal legislatures as well as the U.S. Supreme Court should revisit and consider revising the way in which biological fathers' parental rights are terminated. A well designed and publicized national putative father registry system is an especially needed first step, given the mobility of mothers and children. While there are complex issues surrounding parentage and children, society is long past the time when biological fathers were perceived only as having an obligation to provide financial support to their children. Care, upbringing and nurturing of children are the privileges of both biological parents. This brief comment is a call for legislative and judicial action and does not provide legal advice. Always consult an experienced attorney in all specific family law situations.