Need Help With an Argument About Putative Fathers

[Utah]

There are some pretty sharp minds on this board (even though some belong to complete whack jobs LOL) and I was hoping that you could help me with a legal argument I am having with a group of women.

It started when one of them told me there was this legal thing called a putative father registry. I was like "WTF is that!?!". Basically, it is a list that men must signup for or be completely dependant on a woman to tell him that he is the father of a child. Basically, the list needs to be checked before a woman can place a baby for adoption. If a father doesnt sign up for the list he has no recourse if he later finds out the child is his. Here is the kicker, the man man needs to sign up for every woman he has had sex with and he cannot wait for a pregnancy becuase he might not know the pregnancy exists. Basically, it is a law designed to strip birth fathers of their rights and to protect adoptive parents from having to worry about a father claiming his child.

I was shocked to hear about such a thing. Immediately, it was obvious that this was a gross violation of privacy and we would never in a million years force women to register every sexual partner they had. I also couldnt think of another fundamental right that a person actually needs to register for before the right is needed. I mean, it seems as silly as "well, I am sorry that you were shot but you didnt sign the I Dont Want to Be Shot registry".

Unfortunately, I cant really think of any legal defenses to this and it appears that the supreme court is very vague on the topic. This is a very tricky area of law because you are involving the rights of the child and the birthmoter.

Do you agree with this law? If not, how would you attack it legally (or ethically or logically)?

BTW - this doesnt affect me and I have been married for 10 years. I am just curious and a little peeved at such a stupid law imho.

[cardcounter0]

Sounds like some perversion of FL Law. Don't know if this actually exists, but that would probably be the State.

[Utah]

It exists today in about 30 states.

[elwoodblues]

Does anyone know what a biological father's legal rights are in a situation where the child has been adopted and the biological father later finds out that the child existed? I don't know the answer, but this law might actually give bio-dads greater legal rights than they had under the previous system --- it actually protects them from dishonest mothers.

The alternative to this system is one in which the child is adopted and then "taken back" by the bio-dad. While this is probably better for the father, I doubt that it's better for the child.


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I also couldnt think of another fundamental right that a person actually needs to register for before the right is needed

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What is the fundamental right that you're referring to here (serious question, not just rhetorical)?

[HDPM]

"and to protect adoptive parents
from having to worry about a father claiming his child."


To some extent this needs to be done. Sure, a father has an interest in kids, but here you are talking about somebody who doesn't even know he impregnated somebody. There is no reason to hurt the child at all because of the irresponsibility of the people who supplied biological material and nothing more. Even if you have rights, the law has always been that in some circumstances you have to do something to protect them or risk losing them. This is one of those situations in that if you want to have a role in your offspring's life you do something to show an interest. Most people show that interest by having enough of a relationship with the women they impregnate to get word they might be a father. In situations like this, I think the right of the kid to have a more stable upbringing is important to protect as against the right of a person who is a father in biology only. That said, I am not sure about all these laws. I am rethinking some things in these areas and don't know the law concerning a lot of it. So my opinions aren't final.

[andyfox]

http://www.state.il.us/dcfs/adoption/a_adoption_putative.shtml

[HDPM]

Parental rights and the right to procreate are given huge protection under relevant supreme court cases; parental rights are fundamental rights. I don't know them off hand, but have seen some of the effect in child protection cases, etc... Parental rights even if the parenting is merely biological get extensive protection.

[FeliciaLee]

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Here is the kicker, the man man needs to sign up for every woman he has had sex with and he cannot wait for a pregnancy becuase he might not know the pregnancy exists.

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That seems, indeed, quite a violation of privacy. Even if it the information is solely released to "interested parties" in the case, as the Illinois webpage indicates, it could be used against a biological father by the prospective adoptive parents. The biological father could be trapped in many ways. If he doesn't list all of the women he's had intercourse with, he could be attacked on the stand and made to look like a liar. This could happen even if his memory fails and he is trying to be honest. If he does list every women, he could be made to look like an irresponsible sexual deviant or something else that a tricky lawyer could come up with. It's a bad place to be in.

In a related topic, I'm probably not very popular with my gender, but I have always thought that both parties should consent to an abortion, as well. It should not be solely up to the female.

Felicia /images/graemlins/smile.gif
www.felicialee.net (http://www.felicialee.net)

[Sloats]

It seems that fathers have rights equivalent to grandparents. Just look at Elian. That shouldn't have even been a discussion. A surviving parent wants his child back and not with an uncle?

[Boris]

For reasons I don't completely understand, the law is not overly concerned about the biological father. It is more important that a child have consistency. In child support and custody cases, once a father has been designated as the father of a child there is no turning back. So for example, if your spouse or girlfriend had a baby and you thought it was yours, you are that baby's daddy in the eyes of the law. Even if you find out later that you are not the biological father.

[Utah]

Hi elwoodblues,

The fundamental right we have is the ability to raise our own offspring. This is held sacred in this country, although I am not sure if its legally protected. If it was the child's best interest only we would be removing a lot of kids from their homes.

[Utah]

I always thought that case was fascinating. There never would have been a discussion if it had been the father who took the child and it was the mother who wanted him back. If that had been the case the father taking the child would have been seen as evil and not as someone trying to give their child a better life.

[Kurn, son of Mogh]

The alternative to this system is one in which the child is adopted and then "taken back" by the bio-dad. While this is probably better for the father, I doubt that it's better for the child.

I agree with you. While I don't like the invasion of privacy issues raised with this statute, I also stand firm on my belief that biological fatherhood should have no claim against adoptive fatherhood. As far as I'm concerned, fatherhood is an active process that consists of ongoing support and nurturing. If I was an adoptive parent, who watched my child (yes *my* child) take his/her first steps, learn to talk, who read to him/her and nurtured him/her, etc. and then some guy showed up at my door claiming that he had some "right" based on the fact that a few years ago he got laid at a party and then chose to go his own way, well, that dude had better be ready for the fight of his life. The fact that he stuck his William Henry Harrison somewhere for enjoyment purposes holds no moral claim once I've performed all the duties of fatherhood that actually mean something.

Talk about the entitlement mentality run amok.

[Utah]

Even if you have rights, the law has always been that in some circumstances you have to do something to protect them or risk losing them.

Can you give me a comparable example. I cannot think of one.

Most people show that interest by having enough of a relationship with the women they impregnate to get word they might be a father.

That shouldnt affect anything should it. I mean, is my right to parent contingent on how strong a relationship I had with a woman. What if we dated but she moved away and we had no choice but to break it off? Do I need to call her in 30 days to see if she is pregnant?

In situations like this, I think the right of the kid to have a more stable upbringing is important to protect as against the right of a person who is a father in biology only.

I think it is a balancing of rights. Thats why I think it is legally tricky. Lets say that I took my kids and hid from my wife and raised them under a false name and I was found. No one would argue that the rights of the child to be raised in a stable and loving environment precluded the rights of the mother to have her children back. Although if it was the mom who took the kids I wonder what people would think.

[HDPM]

I agree it is a balancing of rights.

As to situations where you can lose rights, a few examples are statutes of limitation, requirements that opposing parties be given notice of your claim, or the equitable defense of laches. If you delay your right to have a claim can be eliminated by law. You lose a legal right by failing to take action. You can also lose real property by adverse possession if you don't do anything to protect your property rights against squatters. There are other examples. Rights aren't absolute and you have to assert them sometimes, not just rest on them later.

[elwoodblues]

Should there be a limit on this right at all (not taking the obvious examples of abuse, let's just use your example of a bio-dad discovering his offspring)
What if he discovered the kid 1 month after adoption?
What if he discovered the kid 1 year after adoption?
5 years?
10?
My point is that there is some limit at which we would both agree that while the bio-dad has rights, he's waived them by inactivity or that his rights are inferior to the best interests of the child. We can either have courts decide when this line is drawn (and be labelled activist courts when we disagree with their decision) or we can have our elected legislatures make that decision.

[Utah]

wow. Let me guess - you are an adoptive parent???

fatherhood is an active process that consists of ongoing support and nurturing.
Lets take that as true. Lets say a woman got pregnant and I told her to go to hell. Lets say that in the first few months after the birth I decided to offer zero support to the child. Lets say I told the birthmother that I didnt ever want to see the child and I could care less if the child lived or died.

Under your logic then I would in no way be the child's father correct?

[Boris]

correct. And I think Kurn makes a strong argument.

[Utah]

Okay. Then we would agree that I should in no way ever have to pay child support being that I am not the childs father.

Correct?

[Boris]

I believe that's the law in most states. Kind of sucks if you get cuckolded. Kind of good if you are a womanizer.

[elwoodblues]

Again, the only factor that is looked at is not "what is in the best interests of the bio-dad." Not paying child support and getting to take the kid away from adoptive parents might very well be in his best interests. However, state laws in this area have been written to provide for the best interests of the child. It is in the best interests of the child to have financial support from the bio-dad (and in those cases where he pays support, he knows about the kid and can probably get visitation rights). In those instances where he knows nothing about the child, he isn't ordered to pay support, but also (in some circumstances) gives up his parental rights to adoptive parents.

Looking at it another way, the state laws seem to say that if you know about the child (i.e. you know your girlfriend had a baby or someone tells you that you have a child by hitting you up for support), should know about the child, or have done whatever you can to determine if there is a child (i.e. you've signed up on the putative father rolls) you have certain rights and probably some responsibities as well.

When none of those apply, you have waived your rights by inaction.

[Utah]

I understand what they are trying to do. dont get me wrong. I am just trying to find a strong legal basis in this and I cannot find one. Either the biological father is the father or he isnt. So, I want to first get to what a father is. However, that doesnt appear to be so easy. If someone is not the biological father so be it. He has no "claim" to the child and the child has no claim to him. Therefore, while it might be in the best interest of the child to have someone support him, we just established that the father, through his actions, is not longer the father. That being the case than why should this man be forced to support this child more than any other child?

This gets back to the point, is a father biological, conditional, or both? I can make a case for any of the three, but I have a hard time making a case where it could be different based on outside circumstances (e.g., the mothers decision).

Can you define the term father as it relates to the birth of a child?

[elwoodblues]

The short answer is that the best interests of the child trump.

Where the child is born to the mother and the mother keeps the child, the bio-dad has financial responsibilities. Those financial responsibilities stem from the fact that it is in the best interests of the child to have as financially stable a home environment as possible.

Where the mother keeps the child and the bio-dad wants involvement with the child, he can probably get it. This involvement is in the best interests of the child as receiving the loving care of both a mother and a father are in the child's best interests.

Where the bio-dad is unaware of the child - blissfully unaware (they've done no follow-up with the mother, and haven't registered as a putative father) and the mother puts the child up for adoption, the best interests of the child (as determined by the legislature) is to maintain a stable home environment in their adoptive home. Here, the bio-dad has no rights to the child, but also no responsibilities.

[Utah]

Let me come at it another way. Yes, this is how the state operates. However, is there a constitutional argument that supports this? i.e., does the constitution support the "child trumps" argument? My intution tells me that it doesnt, but I could very well be wrong.

The supreme court has been very vague on this to date.

And, if we accept the "child trumps" argument, isnt that a great argument for abolishing abortion?

[elwoodblues]

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And, if we accept the "child trumps" argument, isnt that a great argument for abolishing abortion?

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Absolutely true if we accept that a fetus is a "child" and, therefore, has rights. Interestingly, a fetus whose father dies before birth is entitled to inheritance (suggesting that a fetus has at least some rights).

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However, is there a constitutional argument that supports this?

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We only need to ask that question (and I'm assuming you're talking about the Federal Constitution) if it is a Constitutional question to begin with. It is only a Constitutional question if, as you suggest, parental rights are covered by the constitution (they certainly aren't explicitly covered, so it would take an activist judge to make that finding /images/graemlins/grin.gif). Let's assume that it is a constitutionally protected right. Limits are placed on Constitutional rights all the time and, yes, often there is a trump card.

Free Speech - Defamation is actionable (injuries to others trumps). The famous "fire" in a crowded theatre (safety of the public trumps). Zoning laws and noise restrictions (reasonable desires of the populace trump/trespassing laws trump).

Freedom of Religion - You are free to practice your religion so long as that practice doesn't neutral civil laws (health/safety trumps)

Freedom of the Press - No tape recording at the US Supreme Court (the whims of the court/tradition trumps)

[HDPM]

Sovereign states have powers under the constitution. Legislating about paternity issues is a state power. If the legislature exercizes the power in a manner consistent with due process and equal protection, the state can take away rights. Same reason the state can lock you up forever for committing various crimes. So yes, the constitution supports the child trumps argument, albeit indirectly and with other constitutional provisions limiting the power.

[Utah]

6-3 ruling against the biological father. Typical supreme court vague logic. I like the desent. "Either he has a constitutional right or he doesnt".

It appears that there are clearly grounds to make a valid constituitional argument.

http://www.kylewood.com/familylaw/lehr.htm