Many years ago when I first began practicing adoption law, California Statutory Law (the law made by our State legislature) stated that if a child was born out of wedlock, the biological father of the child had no rights nor was there any requirement that he be notified or involved in any manner in the adoption of the child. Only the mother needed to sign documents enabling the child to be adopted.

Law is not only made by the State or Federal Legislature but also the Court (called case law). Twenty or so years ago, an action was instituted in Illinois by a man against a pregnant woman in an effort to establish the man's paternity of the unborn child. This action was the first of its kind in the United States and was characterized as an inverse paternity case (usually the case is brought by the woman against the man) and established a legal precedent.

The evidence submitted to the Court was sufficient to clearly establish the Petitioner's paternity and enabled him to have legal rights equal to the birth mother.

California courts accepted the decision of it's sister State Court (as it was permitted to do under the full faith and credit clause of the U.S. Constitution) and by accepting that decision caused the case law to supersede the statutory law.

Subsequently California adopted, along with most other States, the Uniform Parentage Act, which, statutorily, created, among other things, two categories of fathers, alleged and presumed.

California law creates the presumption-of paternity under the following circumstances:

"He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a Judgment of separation is entered by the Court.
Before the child's birth, he and the child's mother have attempted to marry each other by a marriage solemnized in apparent compliance with the law, although the attempted marriage is or could be declared invalid, and either of the following is true;
A. If the attempted marriage could be declared invalid only by a Court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce.
B. If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation.
. After the child's birth, he and the child's natural mother have married, or attempted to marry ... and if:
A With his consent, he is named as the child's father on the child's birth certificate.
B. He is obligated to support the child under a written voluntary promise or by court order.
He receives the child into his home and openly holds out the child as his natural child. This often arises when, after the birth, the birth mother and biological father live together with the child.
A second possible father is the biological father. In the majority of adoptions, this father is called the alleged father who, legally, has less rights than the birth mother and whose legal rights are capable of being terminated very differently than the rights of the presumed father.

A third possible candidate for paternity is the putative or supposed father of the child. He is the person who the mother believes to be the biological father, but if the mother had sexual relations with more than one person during the period of conception, there may be several putative fathers. A putative father may or may not be the biological father of the child.

A putative father under adoption law is generally referred as an alleged father.

California adoption law requires that, for the child to be legally free to be adopted, it is necessary that the parental rights of not only the mother but the alleged and/or presumed father of the child be legally terminated.

As an adoptive parent, you will generally have to rely on the information provided to you by the birth mother about the alleged/presumed father, not only as to his name, address and other identifying information but also as to the nature and extent of their relationship, both pre-dating, during and after the birth of the child.

State law does not require that the birth mother identify the father of the child. She will be asked to complete a State Department of Social Services form entitled "Declaration Of Mother" which is designed to not only identify the biological father and enable the adoptions Caseworker to attempt to locate him but also to provide information to enable the Caseworker to determine which legal category the father should be in, alleged or presumed.

The obligation of the caseworker who is assigned to do your homestudy is to exercise due diligence in attempting to identify and locate the biological father. The only tools available to the caseworker are the informational forms completed and submitted by the birth mother and any additional information she may obtain by a personal interview. The Adoption Service Provider is responsible for obtaining the completed forms from the birth mother but is not responsible for the accuracy of the information provided, nor does the Adoption Service Provider attempt to locate the alleged/presumed father.

State law requires that, in an effort to identify the natural father, the court shall cause inquiry to be made of the mother and any other appropriate person and the inquiry shall include all of the following:

Whether the mother was married at the time of conception of the child or at any time thereafter.
Whether the mother was cohabiting with a man at the time of conception or birth of the child.
Whether the mother has received support payments or promises of support with respect to the child or in connection with her pregnancy.
Whether any man has formally or informally acknowledged or declared his possible paternity of the child.
Since the efforts made by the adoption caseworker to identify and classify the father as alleged or presumed is not made until after the birth of the child, it becomes the responsibility of the adoption facilitator, the Adoption Service Provider and the attorney who will be representing the adoptive parents in the independent adoption proceeding to also exercise due diligence in identifying and classifying the father and to evaluate the information provided about him by the birth mother so that there will be no inconsistency between the legal category the father is put in by the State Department Of Social Services and the conclusion reached by those professionals involved in the process prior to the birth.

During my initial conference with the birth mother I ask her to complete a statistical information form providing me with information identifying the father of the child. If the mother provides me with the name of the person she believes to be the father and his name his address and phone number or some alternative way to contact him, I will generally write him a letter letting him know that I have been requested to assist the birth mother in arranging for the adoption of her unborn child and advising him that the mother has stated that he is the biological father of the child. I also outline his options if he agrees to cooperate in the adoption and I will generally send him several forms:

Denial Of Paternity.
Waiver of Right to Further Notice Of Adoption Planning.
As the alleged father of the child, either of these forms can be signed by him, before or after the birth in the presence of a notary public and will have the effect of voluntarily terminating his rights and eliminate any further involvement in the adoption proceeding.

If he acknowledges to me that he is the biological father and doesn't wish to sign the Waiver Of Right, he can, after the birth, sign a consent to adopt in the presence of the adoption caseworker.

If the alleged father is identified by the birth mother but is not willing to sign any document ending his right or is otherwise unresponsive, I can attempt to personally serve him with a Notice Of Alleged Paternity. This Notice alleges that he is or could be the natural father of the child to be adopted and requires that he take some legal action to establish paternity within 30 days after service of the Notice or the birth of the child, whichever is later.

If he fails to initiate any action, at the end of the statutory period, I can file with the Court an application to dispense with filing a petition to determine the necessity of consent and the Court will normally sign the order and his rights will be ended.

An alternate procedure is to serve the alleged father with a petition to establish parental relationship. This puts him on notice that at a designated time and place, the Court will hold a hearing to determine if he is the legal father of the child and, if he is the legal father, whether the child shall continue to remain in the care and custody of the adoptive parents. If personal service of the notice of this proceeding cannot be made and the Court is satisfied that a best effort was made to serve or the father was avoiding personal service, the Court can permit publication of the Notice of the hearing in a newspaper which will have the most likelihood of giving him the required notice.

If the birth mother refuses to identify the father, states that his identify is unknown (e.g. she went to a party and woke up pregnant or was sexually active during the period of conception and could have conceived by one of five or six different men) or provides a name but does not provide information sufficient to enable a due diligence search to be made, a petition can be filed with the Court after the birth of the child which will result in an order of the Court terminating his rights without the necessity of publication. This is the most common scenario experienced in adoptions.

The rights of a presumed, but not biological father (husband) can be ended by the husband signing a consent to adopt only after the birth in the presence of an adoption caseworker. The consent specifically says that he is the presumed but not the biological father.

A presumed father who is not the husband generally has his rights terminated in the same manner as the rights of the birth mother are terminated, i.e., being advised by the Adoption Service Provider prior to the birth and then signing the Independent Adoption Placement Agreement (consent to adopt) after the birth.

There is also a statutory procedure available to obtain an order of Court terminating the rights of a presumed/biological father who cannot be located or who chooses not to voluntarily terminate his own parental rights.

In my experience, it is very unlikely that the "father" of the child will make any effort to block the adoption or attempt to get custody of the child himself.

Ideally, personally meeting the "father" and satisfying yourself as to his commitment to the adoption plan is preferred but not always possible.

When you, as prospective adoptive parents are presented with an adoption opportunity, be sure that you receive as much information as can be made available to you about the child's "father" so that you can properly evaluate this issue so that you can move ahead with the adoption opportunity with relative peace of mind.

Alvin M. Coen, Attorney at Law

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