If adoption were math, a key equation would be mother + father = baby. It takes both a mother and a father to biologically create a baby. Unfortunately, sometimes this adoption equation evokes memories of high school algebra. Why? Because it contains an “x” which must be identified. What’s the “x”? Why it’s Mr. X—the baby’s father.
Why do we need to know who the baby’s father is if there is a birth mother willing to place her child for adoption and a prospective adoptive couple willing to adopt her baby? At least three good reasons exist why it is crucial to know who Mr. X is in an adoption. First, the child is a genetic product of the biological father. Learning the paternal family medical history provides adoptive couples with information about health concerns they may face while raising the child. If significant medical conditions are a possibility, the adoptive couple might decide to pass on that match. Even if they are willing to proceed based on the paternal family medical history, knowing what conditions could be passed down assists adoptive parents in providing proper medical care for their child. They are in a position to alert their pediatrician about health issues which could arise.
A second reason knowing who the baby’s father is can be important also relates to whether a match will proceed. Does the prospective adoptive couple have a specific racial preference for the child? If so, ascertaining the race of the birth father is crucial. For example, if a couple only wants to adopt a Hispanic child, it is not enough to know the birth mother is Hispanic. What if the birth father is African-American or Caucasian? In that instance, the child will be biracial, and the couple may decide to pass on the match opportunity.
The third, and perhaps the biggest reason for identifying who the baby’s father is relates to the legal nature of the adoption process. To finalize an adoption, the applicable state adoption law must be observed. Those laws set out how the father of a child being placed for adoption must be dealt with for the adoption to be granted. Of course, to deal with him legally, it is important to identify who the father is.
Identifying the mother of a child is not difficult. She is the pregnant woman who carries the baby and gives birth to the child. But the birth father is a man of mystery. There is no overt convincing physical evidence of paternity. So how do we know who the father is? We have to ask the birth mother. This questioning process is not one that is highly scientific or foolproof; it also does not guarantee a definitive answer will result. The birth mother herself may not be sure who the father is. This situation could occur if the birth mother has had more than one sexual partner, i.e., the father could be Tom, Dick, or Harry. It is also possible that the birth mother has no idea who the birth father is. A lack of knowledge is possible in instances of rape where the assailant’s identity is unknown.
Prospective adoptive parents need to be aware there may never be 100% certainty as to the child’s paternity. Paternity testing is not always required by the applicable state law. The goal in such cases is to make sure any possible parental rights of a named or claimed birth father are terminated to make the child legally available for adoption. Having the ground on which to base the termination is what is key, not whether that man is actually the child’s father.
The multiple sexual partners scenario is a typical situation where an adoption can be finalized without a scientific determination as to who the biological father is. Let’s assume the birth mother names three possible birth fathers—Tom, Dick, and Harry. If Tom, Dick, and Harry each sign a consent for the adoption, then grounds exist to terminate any possible parental rights of each one of these three men. The judge is merely concerned with whether grounds exist to justify termination, not whether a particular man is or isn’t the biological father.
In some cases, the question as to who a child’s father is will forever remain a mystery. A common scenario in which the father is likely never to be identified is the “cute guy in the bar” story. The birth mother goes to the bar, has too much to drink, and picks up a “cute” guy whom she does not know. Contact information is not exchanged, and the birth mother never sees him again. She can provide no information about this man beyond a superficial physical appearance. Even without his specific identity, an adoption can move forward and parental rights terminated. Abandonment and failure to register with the state’s putative father registry are possible grounds for termination despite lack of specific identification of the father.
When it comes to addressing fathers, the best place to begin is at the beginning. Who is a father? That’s a good question, and one which does not have a uniform answer. In fact, there’s no standard definition of a father in state statutes. A handful of states do not even attempt to define “father” in their statutes. While a child can only have one mother, he can have several fathers. Different types of fathers are recognized by law. Each state has its own provisions as to what fathers need to be dealt with and how.
The most basic definition of a father is a male parent of a child. Generally people think of a biological parent when the term “father” is used. He is the male genetic contributor to the creation of a child. But he is not the only type of father which the law recognizes.
Regardless of nature and biology, a child can have a legal father. Such a father is a man who, in the eyes of the law, is recognized as the child’s father. The concept of a legal father stems from the presumption of legitimacy. A strong legal presumption exists that a woman’s husband is the father of any child to whom she gives birth. This presumption is a common law rule of evidence which made proof of paternity easier. In the olden days, there was no ability to conduct a paternity test, but it was possible to produce documentary proof of a marriage. Under Roman law, the fact of marriage made a father. Romans felt that the mother was always certain; the father was identified by who had said marriage vows with the mother.
But biological and legal fathers are not the only types of fathers. Some men are known as putative fathers. A putative father is a man who has an alleged biological relationship to a child but who has not been established as the child’s father. Let’s say pregnant Jane Doe, a never-married female, consults an adoption attorney about placing her child for adoption. There is no legal father of the child since Jane has no husband. But if Jane names Sam Smith as the father, Sam is a putative father. He might turn out to be the child’s biological father if a paternity test is conducted, but until such time, he is simply a putative father.
Putative fathers are common in today’s adoption context given how often children are now born to unwed mothers. According to Child Information Gateway, back in 1950, a mere 4% of births occurred to unmarried women; nevertheless, such births have surpassed 40% every year since 2008. Without a paternity test having been conducted or a marriage certificate produced, the man the birth mother names as the baby’s father is merely a putative father.
Identifying a child’s mother is a straightforward process which will produce the name of one woman and one woman only. Identifying who a child’s father is may produce several different men and different types of fathers. In pursuing an adoption, a prospective adoptive couple needs to have a clear grasp of who these fathers are and if/how they are involved.
The existence of more than one father brings to mind a popular old game show, To Tell The Truth. The players would come on stage and introduce themselves; each would claim to be the same person by saying, “I’m (name).” Four celebrity panelists would quiz the players to determine which one was truly the named individual. If a similar event occurred in an adoption, three men would consecutively appear each of whom would say, “I’m the baby’s father.” In the end, they might all truthfully reveal they are the baby’s father. How can this be? Consider this fact pattern.
Jane Doe is married to John Doe. Jane is three months pregnant; her husband is on active duty military and has been deployed for the last six months. Fred had a one-night stand with Jane after her husband deployed; a post-birth paternity test reveals Fred fathered Jane’s child. Chad has been Jane’s boyfriend for four months; she tells the adoption attorney she believes Chad is her baby’s father, and Chad states he believes he fathered Jane’s baby. Which one of these three men is the baby’s father? The correct answer is all of them.
Because John Doe and Jane Doe were married when Jane’s baby was born, John Doe is the child’s legal father. The law presumes legitimacy, so the fact that John Doe is not biologically related to the child is irrelevant in deeming him to be the child’s father. Fred, however, is genetically related to the child. He is the child’s biological father. Chad is also the baby’s father. He is a putative father. The birth mother has named him as the father of her child, and he also claims to be the child’s father. This adoption case will be complicated, time-consuming, and more expensive (where charges are on an hourly basis) if three different men must be addressed in the adoption proceedings. The applicable state adoption law, of course, will control who is a father and the required procedure for dealing with him.
Not only may there be more than one father, but there may be more than one type of father in an adoption case. If the birth mother has more than one sexual partner and is not married to these partners, multiple putative fathers will exist. For example, if Jane Doe names Tom, Dick, and Harry as her sexual partners during the time her child could have been conceived, then there are three putative fathers; Tom, Dick, and Harry are all putative fathers. There has been no connection to the child established for any of these men, but the birth mother is alleging possible paternity on their part.
Surprisingly, it is also possible to have more than one legal father. A husband is the most common example of a legal father. Nevertheless, some states recognize other situations in which a man is considered a legal father. In Florida, for instance, a man who has signed a birth certificate application and is listed as the father on the child’s birth certificate is a legal father. Therefore, if a married woman’s boyfriend signs her child’s birth certificate application and is subsequently listed as father on the birth certificate which is issued, he is a legal father. But the woman’s husband is also the child’s legal father. Both legal fathers will have to be addressed in adoption proceedings concerning the child.
Prospective adoptive parents need to realize the cast of characters in an adoption case may be large and unclear, particularly as it relates to a father. There are different types of fathers, and a father is not simply a man who is biologically related to the child; in fact, he may have no biological connection whatsoever. Who the father is or might be is a key concern for prospective adoptive couples at the outset of a case. An unknown birth father will mean that paternal family medical history will be nonexistent. An uncertain birth father may raise doubt as to the race of the child. Multiple fathers who must be addressed in the case can raise the cost of the case and add to the stress and emotions of the adoption journey.
The bottom line is that the math in an adoption case is important. It may not be possible to solve for a specific identity of the “x” in the equation mother + father [x] = baby. But prospective adoptive couples have to consider who is or who may be Mr. X. What is known about him? What will not be known about him? How will he be addressed in the case? Mr. X is a man of mystery, but prudent prospective adoptive parents need to know how Mr. X, whoever he is, will impact the handling of their case. He’s a crucial part of the adoption equation.