Constitutional Protections

The U.S. Constitution (by means of the Fourteenth Amendment’s Due Process Clause) limits the right of a state to allow adoption over the objection of the parents. Only if the natural parents are shown to be “unfit,” justifying the termination of their parental rights, may their consent be dispensed with.

Traditionally, the mother had complete control over a nonmarital child’s custody, including any decision on adoption. Only a few states would hear the unwed father on the question of adoption when he had acknowledged the child in some way, or contributed to the support of the child, or if paternity had been established by a court.

The Supreme Court has heard many cases, and has had a significant effect on adoptions of nonmarital children. The Stanley case mentioned in the previous subchapter was an important one for adoption purposes because the Supreme Court defined the unmarried father’s rights in terms of his actual relationship with the children. Now, a father has legal rights to his child whether the child is born in wedlock or out of wedlock.

Where a child is born in wedlock, the consent of both parents is needed before an adoption can be finalized, unless the natural parents’ rights have been involuntarily terminated for unfitness or abandonment. If a child is born out of wedlock, the mother’s consent is of course needed; the father’s consent is more complicated. Where the father has actively and consistently cared for and supported the child, the state may not constitutionally allow an adoption without the parent’s consent. See, e.g., Stanley v. Illinois, 405 U.S. 645 (1972).

Example: A father lives with the mother and their out of wedlock children in a family unit for several years. The father has a good relationship with the children. One day, the mother decides she no longer wants to stay with the natural father and marries someone else. She excludes the biological father from the proceedings when her husband files a petition to adopt the children. The court would hold that the father is entitled to a hearing before adoption of his children is granted, especially since he can show an active interest in his children and prior support.

These types of actions bolster a father’s claim to custody of the child. Courts want to see evidence that the father has taken an interest in the child, best illustrated by a record of spending time with the child.

Conversely, with a non supportive father or one who never acknowledged the child, the state may constitutionally dispense with the father’s consent (and may even dispense with notice to the father). This applies when the father knows he is a father. See, e.g., Quillon v. Walcott, 434 U.S. 246 (1978). In Quillon, the U.S. Supreme Court denied an unmarried father a “veto power” over the adoption of his nonmarital child, when for 11 years he had not availed himself of the opportunity under Georgia law to legitimate the child, had supported the child only irregularly and had never lived with the child in a de facto family setting.

When a man has no knowledge that he is a father, the situation is uncertain because there are no Supreme Court cases on point. Nevertheless, a man so detached from the child’s mother may not be concerned about whether the child is adopted by someone else.

Example: An unmarried father had not supported and had rarely seen his two-year-old child. Yet, he sought to invalidate the child’s adoption by the mother’s husband on the ground that his right to due process was violated when he was not given advance notice of the adoption proceeding nor an opportunity to be heard. The court said, “when an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘coming forward to participate in the rearing of his child,’ his interest in personal contact with his child acquires substantial protection under the due process clause. But the mere existence of a biological link does not merit equivalent constitutional protection.” See Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983).

Parental Consent

The period in which the biological father must manifest his parental interest is limited in duration, and if the father’s actions are untimely, the state can deny a right of consent. Promptness is measured in terms of the baby’s life, not by the onset of the father’s awareness. This demand is a logical and necessary outgrowth of the State’s legitimate interest in the child’s need for early permanence and stability. See, e.g., Robert O. v. Russell K., 80 N.Y.2d 254, 590 N.Y.S.2d 37, 604 N.E.2d 99 (1992).

Typically, consent to adoption given before birth is not valid. Furthermore, there is some minimum time (typically 72 hours) that must elapse after birth before consent becomes effective. In some circumstances, consent may be revoked. This applies before the adoption becomes final. To protect the privacy of the parties involved, adoption records are generally sealed. Some states now allow open adoption records in case either party wants to find the natural parent or child.

Once the adoption becomes final, it is difficult to undo. Ways in which states limit revocation include a very short statute of limitation, such as a range of 48 hours to 10 days within which the adoption must be contested. Exceptions are in cases of:

1. fraud or duress - time period longer or no time period at all under these types of circumstances; or
2. best interests of the child - may cause a court to deny revocation altogether.

Revocation of adoption is generally reserved for instances of undisclosed disabilities or illnesses. There can also be a lawsuit against an adoption agency when the agency negligently withholds information in such a way that the adoptive parents were misled as to the truth. See, e.g., M.H. & J.L.H. v. Caritas Family Services, 488 N.W.2d 282 (1992).

Other Types of Adoption

Equitable adoption or “adoption by estoppel” does not involve an actual adoption. Rather, a “parent” has voluntarily assumed responsibility for a child. The “parent” must have a clear intent to adopt the child. He was just thwarted by some legal impediment. In keeping with the standard of looking out for the child’s best interests, it would be disruptive and detrimental to the child’s wellbeing to remove a child from the home.

Example: Judy lived with Paul intermittently for five years during which time they had two children. In addition, Judy had a daughter from her previous marriage. Paul voluntarily supported the children and held them all out as his own. One day, Judy was killed in a car accident. When the court must decide who gets custody of Judy’s daughter, it might invoke the theory of equitable adoption to allow Paul to retain custody of her. It would be disruptive to remove the child from Paul’s home, especially after she just lost her mother.

Given the dearth of adoptable U.S. children (particularly infants), some couples resort to international adoptions. The 1993 Hague Conference on Private International Law developed a new multilateral treaty—Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption to assist in these efforts. As of 2002, 46 countries were a party to the convention and another 13—including the U.S.—had signed but not yet ratified it. The treaty provides for minimum procedural standards and recognition of the adoptions in other member countries.

Another potentially controversial area is gay adoption. States such as Florida have a statute that prohibits lesbians and gay men from adopting children, although they can become foster parents and legal guardians. The law was passed in 1977 in response to Anita Bryant’s infamous anti-gay campaign. Although there have been recent challenges to the constitutionality of the statute, the Florida appeals court has not been persuaded to abolish it. In contrast, other states allow second-parent adoption so that both partners in a same-sex relationship can become the legal parents of a child.