CROSSING THE LINE FOR UNWED FATHERS’ RIGHTS: A
STATE OF CHAOS IN THE STATE OF OHIO
RACHEL M. GAGNON*
Imagine that the law requires one course of action, but a state supreme
court creates another. Imagine that in choosing to create this contradictory
course, the court does so under the belief that it is acting fairly according to
the Constitution and the jurisprudence of the Supreme Court of the United
States. Now complete this image by placing this chaotic scenario in the
context of family law. More specifically, consider it in a situation where
the court is forced to choose between a father’s fundamental right to parent
his biological child, and allowing a child to remain with his future adoptive
family, the only parents he has ever known. The results are guaranteed to
be tragic, regardless of which of the two options the court chooses. It is
sure to be even more tragic, however, if in making its decision the court
dismisses the policy directives given to it by the state legislature after
careful thought and consideration, and instead inserts its own policy
initiatives into its decision. The sheer chaos that ensues highlights an issue
in desperate need of clarification. The situation described above is exactly
what happened in a recent set of adoption cases in the Supreme Court of
This set was composed of two adoption cases where unwed biological
fathers had paternity actions pending, but not yet determined in juvenile
court, when petitions for adoption of their children were filed in probate
court.1 One of the fathers had filed with the putative father registry;2 the
other had not.3 One case involved a step-parent adoption,4 and the other
was an adoption through a private agency by a family with no relation.5
Copyright © 2012, Rachel M. Gagnon.
* Capital University Law School, J.D. Candidate, May 2012. I would like to thank
Professor Mark Strasser of Capital University Law School for his insight in writing this
article. Further, I would like to thank my family, and especially my husband Ian, for their
constant support and encouragement.
1 See discussion infra Parts III.A.1–III.A.2.
2 In re Adoption of G.V., 933 N.E.2d 245, 246 (Ohio 2010).
3 In re Adoption of P.A.C., 933 N.E.2d 236, 237 (Ohio 2010).
5 In re G.V., 933 N.E.2d at 246.
562 CAPITAL UNIVERSITY LAW REVIEW [40:561
Neither father had his paternity legally determined before the adoption
proceedings began.6 In both cases, the biological fathers preserved their
rights as fathers by halting the adoption proceedings during the pendency
of the juvenile proceedings.7
In both cases, the Supreme Court of Ohio held that when an issue
concerning parenting of a minor is pending in juvenile court, a probate
court must refrain from proceeding with the adoption of that child.8
Furthermore, it held that the determination of a parent-child relationship in
the juvenile court proceeding must be given effect in the stated adoption
proceeding.9 This seems, on the surface, to be a fair result. Yet the
significance of these two holdings lies not in their fairness, but rather in
their incorrect result. The Supreme Court of Ohio has given these putative
fathers more protection than provided to them statutorily by the Ohio
General Assembly, excusing their failure to demonstrate commitment to
their children, as required by Ohio law. In both cases, the court considered
a biological father’s right to parent with the state’s interest in using
adoption to further the best interests of the child. These rulings tip the
scale in favor of the father’s rights, ignoring the harmful effects they have
on the best interests of the child. In an effort to avoid a harsh result, the
court overstepped its boundaries. It therefore left the legislature no other
option to recapture and reiterate its initial policy goals than to revisit and
reform the current adoption structure in Ohio. Without this kind of reform,
Ohio’s collection of cases and statutes remain in conflict with each other,
leaving a system of confusion and “chaos.”10
This note dissects this chaos through an examination of Ohio’s
statutory adoption scheme as it relates to consent requirements and the
rights of putative fathers in adoptions. It examines whether a putative
father’s consent should be required depending on the actions he has taken
to establish his role as a father. It does this through an analysis of these
two recent cases, both of which draw attention to a struggle between the
courts and the state legislature in deciding the limits of these potential
This article begins with the constitutional foundation underlying states’
actions in this area, presented through a discussion of an important line of
6 Id.; In re P.A.C., 933 N.E.2d at 236.
7 In re G.V., 933 N.E.2d at 246; In re P.A.C., 933 N.E.2d at 237.
8 In re G.V., 933 N.E.2d at 247–48; In re P.A.C., 933 N.E.2d at 238.
9 In re G.V., 933 N.E.2d at 247–48; In re P.A.C., 933 N.E.2d at 238.
10 See Rita Price, Adoption Challenges: Rulings May Boost Paternal Rights, COLUMBUS
DISPATCH, Aug. 9, 2010, at B1.
2012] A STATE OF CHAOS IN THE STATE OF OHIO 563
United States Supreme Court cases.11 These cases help provide the
constitutional framework upon which Ohio’s statutes were based, and
provide guidance on what is and should be required of putative fathers to
legally assert their parental r ights.
Next, this article provides an overview and analysis of Ohio’s statutory
scheme, setting forth the consent requirements and legal statuses involved
under Ohio’s adoption law.12 It also provides a discussion of important
case law which guided the court throughout these two decisions.13 This
article then explores the policies and goals that motivated the legislature
when it enacted this statutory framework, as those policies and goals are
relevant in the analysis of why the court erred in its holding.14
Finally, this article thoroughly examines the two cases, including both
the factual similarities and differences between the two fathers’ actions, as
well as the overarching holding as applied to both.15 It explains the few
strengths in the majority’s opinion, as well as why the weaknesses in the
majority’s holding ultimately dominate. It concludes by offering possible
explanations for why the court felt the need to rule in favor of the fathers,
why that was wrong, and how Ohio should move forward in light of these
A. History of Parental Rights in the United States
The Supreme Court first acknowledged the right to raise children in
1923, when it held that the liberty referred to in the Fourteenth
Amendment of the United States Constitution is “not merely freedom from
bodily restraint but also the right of the individual to . . . establish a home
and bring up children . . . .”17 The Court later elaborated when it noted that
“[t]he liberty interest . . . of parents in the care, custody, and control of
their children . . . is perhaps the oldest of the fundamental liberty interests
recognized by this Court.”18 This fundamental right has long found
substantial protection under various provisions of the Constitution,
11 See discussion infra Part II.A.
12 See discussion infra Parts II.B.1–II.B.2.
13 See discussion infra Parts II.B.3–II.B.5.
14 See discussion infra Parts II.B.3–II.B.5.
15 See discussion infra Parts III.A–III.B.2.
16 See discussion infra Parts III.B.3–III.B.7.
17 Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
18 Troxel v. Granville, 530 U.S. 57, 65 (2000).