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The Rights of Presumed Putative Fathers

December 31, 2004

In the decades since 1960, out-of-wedlock births have increased dramatically. While much research on childbearing trends and the characteristics of unwed mothers exists, very little is known about putative fathers, the alleged or reputed fathers of children born out-of-wedlock. However, there is an expanding population of putative fathers who wish to play a role in their children's upbringing. Consequently, their legal rights have become increasingly important.

Putative fathers have had fewer rights with regard to their children than either unwed mothers or married parents. Over the past several decades, putative fathers have used the Fourteenth Amendment to challenge the termination of their parental rights when the birth mother relinquishes their child for adoption. Nevertheless, States have almost complete discretion to determine the rights of a putative father at proceedings to terminate parental rights or adoption proceedings.

Constitutional Rights

The U.S. Supreme Court has affirmed the constitutional protection of a putative father's parental rights when he has established a substantial relationship with his child. The Court defined a substantial relationship as the existence of a biological link between the child and putative father, and it defined the father's commitment to the responsibilities of parenthood as participating in the child's upbringing.¹

Several critical concerns, however, have been unresolved by the Court. For instance, when an infant is placed for adoption at birth, the putative father can have no more than a biological link to his child; he never received an opportunity to develop a substantial relationship with his child. The Court has yet to rule on what this putative father must do to protect his parental rights. Consequently, there is a lack of uniformity among States as to the level of protection available to unwed fathers.²

Putative Father Registries

In almost all jurisdictions, putative fathers are entitled to notice of proceedings to terminate parental rights or adoption proceedings. States generally require a putative father to register on the putative father registry or acknowledge paternity within a certain timeframe in order to receive notice of such proceedings.³

Approximately⁴ 23 States⁵ have statutes authorizing the establishment of putative father registries. Several States⁶, however, only mandate by law that a putative father file a notice of his paternity claim within a certain period of time. Failure to register or file may preclude the right to notice of termination or adoption proceedings.

Information Included in Registries

States differ in the information they maintain in their registries, although it may include:

Name, address, social security number, and date of birth of putative father and birth mother
Name and address of any person adjudicated by a court to be the father
Child's name and date of birth or expected month and year of birth
Registration date
Other information deemed necessary

Revocation of Claim

Approximately 22 States⁷ make provisions in their statutes that allow putative fathers to revoke or rescind a notice of intent to claim paternity. Of these States, approximately 12 allow revocation at any time,⁸ while revocation is effective only after the child's birth in Arkansas and Iowa, and Florida only allows revocation at any time prior to the child's birth. Other States⁹ limit the right of rescission to 60 days after the paternity claim is submitted or prior to a court proceeding to establish paternity, whichever occurs first. Most States will accept a written, notarized statement for rescission. Washington, however, requires a court proceeding for revocation of a claim.

Access to Information

Access to information maintained in registries also varies from State to State. Many jurisdictions permit certain persons access to registry records. In general, these are people with a direct interest in a case. Typically, persons entitled to access include:

Birth mothers¹⁰
Courts¹¹
Attorneys¹²
Licensed adoption agencies¹³
Prospective adoptive parents¹⁴
State departments or divisions of social services¹⁵
State offices of child support enforcement¹⁶
Any other person upon a court order for good cause shown¹⁷
Registries of other States¹⁸

¹ Stanley v. Illinois, 405 U.S. 645 (1972); Quilloin v. Walcott, 434 U.S. 246 (1978); Caban v. Mohammed, 441 U.S. 380 (1979); Lehr v. Robertson, 463 U.S. 248 (1983).
² This summary is limited to a putative father's right to notice of adoption or termination proceedings when the child is relinquished for adoption at birth or shortly thereafter.
³ Situations in which the birth mother and putative father reside in different States may be complicated by the variability in State adoption law regarding putative father registration or acknowledgment.
⁴ The word approximately is used to stress the fact that the States frequently amend their laws, so this information is current only through October 2004.
⁵ Alabama, Arizona, Arkansas, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Louisiana, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Mexico, New York, Ohio, Oklahoma, Tennessee, Texas, and Wyoming.
⁶ Alaska, Arkansas, California, Colorado, Connecticut, Hawaii, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Mississippi, Nevada, New Jersey, North Carolina, North Dakota, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Utah, Vermont, Washington, West Virginia, and Wisconsin.
⁷ Alabama, Alaska, Arkansas, Connecticut, Delaware, Florida, Georgia, Indiana, Iowa, Maine, Missouri, Montana, Nebraska, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Tennessee, Texas, Washington, and Wyoming.
⁸ Alabama, Delaware, Indiana, Missouri, Montana, Nebraska, New Mexico, New York, Oklahoma, Tennessee, Texas, and Wyoming. back
⁹ Alaska, Connecticut, Georgia, Maine, Oregon, Pennsylvania, and Washington.
¹⁰ Arkansas, Connecticut, Delaware, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Missouri, Montana, New Mexico, Ohio, Oregon, Texas, Washington, and Wisconsin.
¹¹ Alabama, Arizona, Delaware, Florida, Indiana, Iowa, Louisiana, Missouri, New Mexico, New York, Oklahoma, Texas, Washington, and Wyoming.
¹² Arizona, Arkansas, Delaware, Georgia, Illinois, Indiana, Iowa, Minnesota, Missouri, Montana, New Mexico, Ohio, and Texas.
¹³ Arizona, Delaware, Georgia, Indiana, Louisiana, Missouri, Montana, New Mexico, New York, Ohio, Oklahoma, Texas, and Wyoming.
¹⁴ Delaware, Florida, Illinois, Indiana, Montana, or Oregon.
¹⁵ Arizona, Arkansas, Georgia, Illinois, Iowa, Missouri, Nebraska, New Mexico, Oklahoma, and Washington.
¹⁶ Arkansas, Delaware, Iowa, Minnesota, Texas, and Washington.
¹⁷ Alabama, Iowa, Louisiana, Missouri, Nebraska, New Mexico, New York, Oklahoma, Oregon, Tennessee, and Wyoming.
¹⁸ Delaware and Texas.