A baby registry is a useful and commonplace tool to identify the baby gifts one wants to receive for a new baby. But in adoption, a registry may be utilized for a birth father. No, an actual father for the baby is not being sought. Instead, a man is registering to establish his desire to parent a child who he believes is his biological child. These types of registries are referred to as putative father registries.
While the concept of a registry is familiar to the average person on the street, the term putative father probably is not. Putative means to be reputed or alleged. This characterization of a father refers to a man whose legal relationship to a child has not been established; he is either alleged to be the biological father by the birth mother or he claims to be the biological father of a child born to a woman to whom he is not married. This definition may seem complicated, but the bottom line is that the father is not married to the birth mother and either he or the birth mother—perhaps even both—claims that he is the child’s biological father.
Why does a putative father matter in an adoption situation? Adoption laws, which vary from state to state, require the rights of a child’s parents to be terminated so the child can be adopted. If a man is indeed the child’s biological father, then his rights, if any, need to be addressed for the adoption to be finalized.
Determining the biological mother of a child who is to be adopted is a no-brainer; she is the woman who physically gives birth to the child. Identifying the father of the child, on the other hand, is not so straightforward. A man married to the birth mother is the child’s legal father and has a relationship with the child recognized by law. But if the birth parents are not married, paternity must be established for a man’s relationship to the child to be recognized.
The existence of an unmarried biological father in adoption scenarios is quite common. Births outside of marriage have soared in the United States since 1979. Based on data compiled by the Centers for Disease Control, 39.6% of births in this country in 2018 were out of wedlock. Where the birth mother is not married, a putative father must be addressed.
In many adoption scenarios, the pregnancy was unplanned and resulted from a one-night stand or a casual relationship. Thus, not only is the birth mother not married to the birth father, but she may not know his identity beyond “the cute guy from the bar.” Or she may not know his full identity; perhaps all she knows is a first name or a nickname. A putative father registry can help in situations where there is an unknown birth father.
Conversely, a birth father may not know the identity, or at least the full identity, of the birth mother. How can he establish his desire to parent a child which might result from an encounter with this unknown woman to whom he is not married? Again, a putative father registry comes into play.
Every state in this country has a provision for fathers to voluntarily acknowledge paternity or the possibility of paternity of a child born to a woman to which he is not married. According to the American Academy of Adoption and Assisted Reproduction Attorneys, at least 24 states, including Florida, Georgia, Ohio, New York, and Tennessee, have established paternity registries where putative fathers can make known their intention to claim paternity. These registries provide a central repository of information where data can be collected on claims of paternity.
Filing a claim with a putative father registry is a voluntary acknowledgment of paternity. A man is stepping up to the plate to take on the responsibilities which come with fatherhood. But this filing merely evidences his intentions to take on the role of father. Registration with a putative father registry is not the equivalent of establishing paternity in the eyes of the law. A court proceeding such as a paternity action may be required for a legally recognized relationship to exist.
Registering with a putative father registry is a crucial step to take if a man desires to parent a child he has conceived—or may have conceived—with a woman to whom he is not married. This filing, if timely accomplished, provides him with certain rights such as the right to receive a notice if court proceedings for the child’s adoption are pursued. As the Florida statutes expressly state, the purpose of the putative father registry in that state is to “permit a man alleging to be the unmarried biological father of a child to preserve his right to notice and consent in the event of an adoption.”
The information to be provided for registration with a putative father registry varies depending on the law of the state which has created the registry. At a minimum, the birth mother and the birth father would have to be identified as would the child’s name and date and place of birth if the child has been born. In states where pre-birth registration is allowed, of course, no birth date and place of birth can be provided. Since filing a claim would permit a man to receive notice of an intended adoption, contact information for him is essential.
Identifying the birth mother may be problematic if the encounter which led to the child’s conception was a one-night stand or occurred in a haze of alcohol or drugs. In Florida, for example, this challenge is met by having the registrant provide a physical description and approximate age for a birth parent as well as the location where the encounter occurred.
The timing of registration is set by the law of the state where the registry exists. Registrations may be required to be made before birth or within a specified timeframe thereafter. Failure to timely file with a registry precludes the notice of intent to claim paternity from being made and the ability to pursue the establishment of parental rights.
Some states, such as Florida, allow a claim to be made via an online application using one’s computer. However, a tangible paper claim may be required by other states. Regardless of how a claim is made, a specific claim form must be used. The state accepting the registration may charge a processing fee to accept the registration. In Florida, for example, a $9 fee must be paid. Once a claim of paternity is filed, it may be revoked in many states; however, the ability to take such action is generally limited to a specific timeframe for that action to be taken.
A state’s putative father registry is not a public file. Each state identifies who will be allowed to access the information contained in its registry, and this access varies from state to state. Most states authorize people who have a direct interest in the case to obtain information from the registry. These individuals may include birth mothers, adoption attorneys, adoption agencies, and prospective adoptive parents among others.
Searching the putative father registry is a prudent step when adoption is contemplated. Both the attorney handling the adoption case and the prospective adoptive parents need to know who the parties will be and what their positions are. Knowing that a biological father is willing to assume parental responsibility may lead a birth mother to select an option other than placing her child for adoption. Knowing that a birth father is not on board with an adoption plan may lead a prospective adoptive couple to pass on the match opportunity.
But which state’s putative father registry should be searched when an adoption case is a possibility? The issue is a complicated one and may require the search of more than one state registry. Each state’s putative father registry operates independently of the registries in other states. No mechanism is currently in place for coordination between state registries to search for claims of paternity. Accordingly, more than one search may be required. For example, a search may be required in the state where the adoption case is pending, the state where the child was conceived, and the state where the birth father believes the birth mother is living.
Multiple putative father searches are complicated, time-consuming, and expensive. As a result, attempts have been made to set up a national system to check claims of paternity. Former Senator Mary Landrieu, a Democrat from Louisiana, was a big proponent of such a national system and introduced the Proud Father Act of 2006, the Protecting Adoption and Promoting Responsible Fatherhood Act of 2012, and the Protecting Adoption and Promoting Responsible Fatherhood Act of 2013 to achieve such a system. These bills, however, were not passed.
Critics of putative father registries have voiced opposition not only to a nationwide system for claims of paternity but to the very idea of such a registry. They argue that a registry does not protect a father who is unaware he has fathered a child. While in truth a man may not have actual notice that a woman with whom he has engaged in sexual relations is pregnant with his child, he undeniably has constructive notice that this result is a possibility.
It is common knowledge that a man’s having sex with a woman of child-bearing age may lead to a pregnancy. Florida adoption attorney Anthony Marchese advocates the “pants on” theory. As Marchese explains, the moment a man puts his pants back on following sex, he is aware that a child could have been conceived. If a man chooses to have a casual encounter with a woman but then not remain in contact with her, that is his choice. That decision is also the reason why he needs to bear the burden to contact a registry and file a claim of paternity as opposed to a birth mother looking high and low for a man with whom she has had fleeting contact. A putative father registry is easily located by an online search while an unknown birth father may not be.
An additional argument against a putative father registry is that a man may simply be unaware that a putative father registry exists. Nevertheless, citizens are deemed to have constructive notice of the law. For example, the fact that a driver did not see a posted speed limit will not be a defense to a speeding ticket he receives. A putative father registry is set out in the state statutes, and its existence is addressed online. Additionally, in Florida for instance, brochures about the registry are freely available online as well as at public health departments, offices of the Department of Children and Families, and at the clerk of court offices. Like a posted speed limit, an unmarried biological father will be deemed to be aware of a putative father registry’s existence.
Despite criticism from unmarried biological fathers, putative father registries are in existence to assist these unmarried fathers. Their biological connection to a child alone is insufficient to merit legal protection. In 1983, the United States Supreme Court in Lehr v. Robertson made clear that it is only when an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the raising of his child that his parental rights acquire substantial protection under the Due Process Clause. Until such action is taken, his rights are inchoate only, or not fully developed. By filing a claim with a putative father registry, an unmarried biological father has concrete evidence to show he is taking steps to commit to the responsibilities of fatherhood.
While signing up for a baby registry may be entertaining for prospective adoptive parents, the impact of an unmarried biological father signing up with a putative father registry is of greater consequence to them. They will not get to the point of needing gifts for a new addition to the family unless the hurdle of terminating parental rights can be cleared. A putative father registry exists to allow the identification of a man who must be noticed and dealt with in an adoption case. Such a registry also provides a way for a man to move from an inchoate interest in the child towards possible fully recognized parental rights.
Although putative father registries are valuable in the adoption process, they are by no means perfect. The lack of a nationwide system to check claims of paternity and the varying requirements for making and researching such claims makes identifying possible fathers difficult. But this labor, like physical labor to give birth, must be undertaken to reach the goal of finalizing an adoption.