Child Custody and Adoption

In the area of adoption, the interest that takes center stage is that of the biological parents. As the Supreme Court pointed out in Troxel v. Granville, it is well accepted that a biological parent has a fundamental liberty interest in the care, custody, and control of his or her child. Thus, a state generally may not take a child from the custody of his or her biological parent simply because it believes that another parent would do a better job of raising the child. In the case of adoption, this means that prior to handing down an adoption decree, the state must either have the voluntary consent of the parents or the state must have involuntarily terminated the rights of the parents.

One of the most common scenarios in the adoption arena is that of a mother putting her nonmarital child up for adoption, with or without the knowledge and/ or consent of the father. Consonant with the constitutional precepts outlined previously, all of the states require that, prior to an adoption, the State must obtain the biological mother’s consent and this consent must be informed and free from fraud, coercion, or undue influence. If the consent was not freely given, then the adoption decree is subject to being overturned. In addition, many states allow the mother to revoke her consent within a specified period of time and thus stop the adoption proceeding.

The question of notice to and consent of the biological father for the adoption of a nonmarital child is considerably more complicated. Unlike in the case of a mother, the question of who the father is of a nonmarital child is at times difficult to answer. Given this reality, the states have had to determine how much effort must be expended in giving notice of the adoption proceedings to the putative father(s) and whether the consent of the putative father is necessary. The issue then arises as to whether the resultant state statutory schemes violate the constitutional rights of the putative father.

Prior to 1972, the fathers of nonmarital children were generally afforded little constitutional protection. This changed somewhat in 1972 with Stanley v. Illinois where the Supreme Court held that the private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. Stanley v. Illinois, 405 U.S. at 651.

Because Stanley was a custody case, the question remained as to what rights a father had in the adoption arena. The Supreme Court gave partial answers in two cases, Quilloin v. Walcott (1978) and Caban v. Mohammed (1979). In these cases the Supreme Court found that if a father has established a substantial relationship with his child and has admitted paternity, then he has a constitutional right to consent to or veto an adoption. Thus, in Quillion the father was not entitled to veto the adoption even though, in the eleven years of the child’s life, he had made some support payments and had visited the child on numerous occasions. He had never had or sought custody and he had not legitimated the child. Conversely, in Caban the father was entitled to veto the adoption. He had lived with the mother for five years, during which time the two children were born, he continued to see the children frequently after he and the mother ceased living together, and at one point he had custody of the children.

Caban and Quilloin concerned the question of consent. The Supreme Court in Lehr v. Robertson addressed the issue of when a putative father is entitled to receive notice of the adoption proceedings. There the Court reiterated that when a putative father has a developed parent–child relationship with his nonmarital child, then his interest in continued contact with the child has substantial constitutional protection. A mere biological link does not merit equal constitutional protection, but it does afford the father the opportunity to form a parent–child relationship. Thus, if there is a biological link, yet the putative father has not developed a parent–child relationship, then the question facing the Court is whether the statutory scheme at issue adequately protected the putative father’s opportunity to form such a relationship. In Lehr the Court found that New York State’s statutory scheme adequately protected the father’s opportunity. The statute required that notice of the adoption proceeding be given to seven categories of putative fathers (the categories encompassed situations where the mother and/or the father had somehow acknowledged the father’s paternity) and the categories were not likely to omit many responsible fathers. Furthermore, qualification for notice was within the putative father’s control. The father in Lehr did not register his name with the state and did not fit within the other six categories, thus the state was not required to notify him of the adoption proceedings.

None of the preceding cases addressed the question of what rights a putative father has to veto an adoption when the child is placed for adoption as a newborn and/or the mother hides the child’s birth from him. Several state Supreme Court cases have, however, found that a putative father’s consent to the adoption may be necessary even if the father does not yet have a parent–child relationship. In such a case, the father’s consent is necessary if, once the father learns of the birth of his child, he does all he can to assert his interest in the child and to assume the responsibilities of parenthood. According to these states, this right to veto the adoption can only be overcome if the father is unfit such that the state has the right to terminate his parental rights. It should be noted that these courts, in the process of protecting the right of the natural father, often find themselves in the position of failing to protect the interest of the child in staying with her or his adoptive parents and/or the interest of the adoptive parents in retaining custody of the child.

Other state supreme courts have not, however, afforded putative fathers this same level of protection. For example, in the case of In re Baby Boy C., the D.C. Court of Appeals held that the best interests of the child could trump the father’s rights to custody even where the father had grasped his opportunity to form a relationship with the child. Thus, the court granted the adoption without the consent of the father and without a finding that the father was unfit, because granting custody to the father would be detrimental to the child’s best interests.

As mentioned earlier, in certain circumstances the state can terminate the parental rights of parents to their child, thus making the child eligible for adoption. However, because, of the nature of the parent’s constitutional rights, it is generally held that the state may only terminate the parent’s rights if the state can prove that the parent is unfit. Furthermore, the Supreme Court in the Santosky v. Kramer case held that the state must prove this lack of fitness with clear and convincing evidence.

As previously noted, traditionally in the area of adoption, the rights of the biological mother of a nonmarital child were often paramount. In the 1970s, the Court began to recognize that the biological father’s interest was also worthy of recognition. The question remains, however, regarding the rights of the child and the adoptive parents.

JANET W. STEVERSON

References and Further Reading

• Hollinger, Joan Heifetz. ‘‘Adoption Law.’’ The Future of Children, vol. 3, no. 1, (1993): 43–61
• Kessel v. Leavitt, 204 W.Va. 95, 511 S.E.2d 720 (1988). West Virginia Supreme Court does a very good job of summarizing the current state of the law regarding when the consent of the putative father of a nonmarital child is necessary
• Mnookin, Weisberg. Child, Family, and State: Problems and Materials on Children and the Law. 4th Ed. New York: Aspen, 2000

Cases and Statutes Cited

• Caban v. Mohammed, 441 U.S. 380 (1979) 
• In re Baby Boy C., 630 A.2d 670 (D.C. 1993), cert. denied sub nom. H.R. v. E.O., 513 U.S. 809 (1994) 
• Lehr v. Robertson, 463 U.S. 248 (1983) 
• Quilloin v. Walcott, 434 U.S. 246 (1978) 
• Santosky v. Kramer, 455 U.S. 745 (1982) 
• Stanley v. Illinois, 405 U.S. 645 (1972) 
• Troxel v. Granville, 530 U.S. 57 (2000)