Fathers' Rights

Adoption rulings may boost birth father's rights

By Rita Price
The Columbus Dispatch

Adoptive parents often don't worry much about challenges from an alleged birth father who wasn't married to the mother.

If the man didn't meet the 30-day deadline for signing the state's putative-father registry, offer support during the pregnancy or establish paternity before the adoption was filed, he might have little chance to halt the placement.

But two recent Ohio Supreme Court rulings in favor of birth fathers are putting putative-father laws on shaky ground, some observers say.

"I don't think it's hit people yet just how pervasive this might be," said Susan Eisenman, an Upper Arlington adoption lawyer. "If the guy doesn't want the adoption to go forward, all he has to do is file a paternity suit. Even if he's done nothing for the child, he can stop it."

Patrick Hamilton, a Columbus adoption lawyer, said the rulings could create "a race to the courthouse" to see which is filed first - the adoption petition or the paternity suit.

Others, however, praise the decisions as a fair and sensible tip of the scales toward biological fathers.

They say that putative-father registries in Ohio and elsewhere deserve to take some legal hits because the little-known laws can be used as blunt instruments to sever parental rights.

"Adoption attorneys won't admit that the registry is denying responsible fathers their rights," said Erik L. Smith, a Dayton-area paralegal who fought to block the adoption of his son in 1993. "What the legislature needs to do is come back and create laws that are reasonable. Put forth a hybrid deadline, not this 30-day limit for everyone."

The Ohio Putative Father Registry was created in 1997 as a way to allow children to be promptly placed for adoption and avoid court battles. Putative essentially means reputed - the man thinks he's the father of the child but is not married to the child's mother and has not established paternity in court.

To be considered a putative father, the man must sign the registry within 30 days of the birth. But, even then, he might not be able to block adoption if a judge determines that he was not supportive of the mother and child.

In the two cases the court decided by 4-3 rulings last month, neither father had paternity legally determined before the adoption proceedings began, according to Ohio Supreme Court documents.

One man, whose child was placed for private adoption in Lucas County, had signed the registry on time. Another had not signed the registry but had been involved with the mother and sought to contest the adoption of his daughter by the woman's new husband in Hamilton County.

Kenneth Cahill, attorney for the biological father in the Hamilton County case, said his client had an established relationship with his child. The girl was nearly 2 years old by the time her new stepfather filed to adopt.

"The legislative history of the putative-father registry didn't fit the facts of this case," Cahill said. "To use a technicality to say that a parent-child relationship is going to be terminated doesn't sit well."

Cahill doesn't think the rulings mean that the registry, which has been signed by just 1,116 men in more than 13 years, is moot. But the split decisions do reflect the complexity of child-centered cases playing out in different courts and states and under differing interpretations of law.

In Dayton, a man is fighting to halt the adoption of his 2-year-old daughter in a case that has drawn national attention. Although the man has four other children not in his custody, he signed Ohio's putative-father registry and says he doesn't want the toddler to stay in California with the woman she knows as her mother.

"Honestly, I think it's chaos," said Michael Voorhees, a Cincinnati lawyer who represents the prospective adoptive parents in both Ohio Supreme Court cases. "It could really be a precedent for not having to follow any statute."

Voorhees asked the court last week to reconsider; so did the American Academy of Adoption Attorneys.

Denise St. Clair, executive director of the National Center for Adoption Law and Policy at Capital University, said the court seems to be saying that, regardless of the registry, it wants pending paternity actions settled before adoptions proceed.

Time will tell whether that leads to more delays or litigation for families.

"In the middle sits a child," St. Clair said, "the innocent party in all of this."