A National Putative Father Registry with Appendix 'Survey of Putative Father Registries by State'

• Author: Mary Beck - Lindsay Biesterfeld
• Position: Holds undergraduate and graduate degrees in nursing and a juris doctorate
• Pages: 295-361

Page 295

A NATIONAL PUTATIVE FATHER REGISTRY

MARY BECK^∗

W ITH A PPENDIX
“S URVEY OF P UTATIVE F ATHER R EGISTRIES BY S TATE” ^† LINDSAY BIESTERFELD INTRODUCTION

The large numbers of children and families touched by adoption justify an American public policy that facilitates adoption. Americans adopt 127,000 children per year¹with over 2% of families including an adopted child.²Children adopted out of the public child welfare system comprise 59% of the total annual American adoptions.³One half million American children reside in foster care,⁴and 119,000 of these foster children are legally free and waiting for adoption.⁵

Copyright © 2007, Mary Beck.

∗ Mary Beck holds undergraduate and graduate degrees in nursing and a juris doctorate. She practiced as a certified Family Nurse Practitioner and taught in Schools of Nursing and Medicine for 13 years before graduating law school. She has a small practice limited to adoption and surrogacy and is a full time professor of clinical law at Missouri University. She has drafted federal and multi-state putative father registry legislation and made related appearances on CNN and NPR. She and her husband married 37 years ago and they have 4 children, a son in law, a daughter in law, and 3 grandchildren.

† Appendix begins on page 339.

¹About 127,000 children were adopted in the United States in 2001. EVAN P.

DONALDSON ADOPTION INSTITUTE, SAFEGUARDING THE RIGHTS AND WELL-BEING OF

BIRTHPARENTS 15 (2006), http://www.adoptioninstitute.org/publications/

2006_11_Birthparent_Study_All.pdf [hereinafter EVAN P. DONALDSON ADOPTION

INSTITUTE]. The number of adoptions has remained between 118,000 and 127,000 every year since 1987. Victor E. Flango & Mary M. Casey, Adoptions 2000–2001, 8 ADOPTION

Q., 23, 33 (2005). The number of adoptions has increased from 1985 to 2002 by 16.9%. EVAN P. DONALDSON ADOPTION INSTITUTE, supra, at 15.

²Adoption.com, Some Numbers in the Nutshell, http://infant.adoption.com/newborn/ some-numbers-in-the-nutshell.html (last visited Apr. 29, 2008).

³EVAN P. DONALDSON ADOPTION INSTITUTE, supra note 1, at 16.

⁴The Child Welfare Information Gateway reported that 523,000 foster children were in foster care in America in 2003. Child Welfare Information Gateway, Foster Care: Numbers and Trends, http://www.childwelfare.gov/pubs/factsheets/foster.cfm (last visited Apr. 29,

(continued)

Page 296

296 CAPITAL UNIVERSITY LAW REVIEW [36:295

Data on American women and children also inform adoption policy. Single women deliver nearly 36% of the nation’s children every year⁶and form the majority of single custodial parents.⁷Children who grow up without participating fathers are more likely to commit crimes, abuse substances, earn lower grade point averages, and live in poverty.⁸It is unmarried mothers who are most likely to make adoption plans for their children. ⁹ The majority of mothers who have relinquished children to adoption demonstrate positive socio-demographic and social psychological outcomes five years after the adoption.¹⁰Less is known about the effect of adoption on birth fathers who report under-involvement with the adoption

2008). Foster care is defined in the Code of Federal Regulations (CFR) as “24-hour substitute care for children outside their own homes.” Foster care settings include, but are not limited to, non-relative foster family homes, relative foster homes (whether payments are being made or not), group homes, emergency shelters, residential facilities, and pre-adoptive homes. 45 C.F.R. § 1355 app. A § 2 (2006).

⁵NATIONAL ADOPTION DAY COALITION, FOSTER CARE ADOPTION IN THE UNITED

ST A T E S : AN AN A L Y S IS O F I N T E RE S T IN AD O P T IO N A N D A R E V IE W O F ST A T E

R E CRU IT M E N T ST RA T E G IE S 1 (2005), ht t p: / / w w w.urba n.org/ U pl oade dP D F/ 411254_foster_care_adoption.pdf. On average, these children have been in foster care for
3.5 years. Id.

⁶CENTERS FOR DISEASE CONTROL, BIRTHS: FINAL DATA FOR 2004: NAT’L VITAL STAT.

REP. 2 (2006), http://www.cdc.gov/nchs/data/nvsr/nvsr55/nvsr55_01.pdf.

⁷“Of all custodial parents, 85% were mothers and 15% were fathers.” Pa re nt sWit hou t Pa rt ne r s. org , Fact s about Si ngl e Parent Fa m i l i es, http://www.parentswithoutpartners.org/Support1.htm (last visited Apr. 29, 2008).

⁸The National Center for Fathering, The Consequences of Fatherlessness,. http://www.fathers.com/content/index.php?option=com_content&task=view&id=391 (last visited Apr. 29, 2008).

⁹National Council for Adoption, Adoption Factbook IV 10 (Thomas C. Atwood et al. eds., 2007).

¹⁰EVAN P. DONALDSON ADOPTION INSTITUTE, supra note 1, at 43–50. International and American studies indicate that the former era of secrecy in adoption was associated with birth mothers’ greater grief and that their participation in the choice of an adoptive family for their children was the single practice that most benefited them. Id. at 48. Exceedingly small and unrepresentative studies conducted on birth fathers yielded no generalizeable results. Id. at 49.

Page 297

2007] NATIONAL PUTATIVE FATHER REGISTRY 297

process.¹¹Adopted children experience parental investment on a level with two parent biological families.¹²

It is right that Americans view adoption favorably,¹³because adoption is common in the United States and it demonstrably benefits American children, birth mothers, and families. American law and policy should and does facilitate adoption.¹⁴But formidable obstacles to adoption lie in the court processes and delays that occur when birth parents appeal a court’s decision to terminate their parental rights.¹⁵The most commonly contested adoptions occur where mothers want to place children for adoption and fathers object.¹⁶It is axiomatic that the law should first protect birth parents’ rights to their children, but that principle is muddied by the numbers of children who lack a participating or legally identifiable father. Resolving the parental rights of a non participating father or a father who is not legally identifiable should not impede the adoption of his child. This Article endorses a national putative father registry which will reduce contested adoptions by encouraging the development of more state registries and by connecting those state registries in one national database. Public policy should favor such a national putative father registry where the parental rights of responsible fathers receive unparalleled protection, while the rights of children to permanency are expedited where their fathers have not stepped up to the plate.

¹¹Researchers concluded that studies on birth fathers were based on small and unrepresentative groups but that adoption impacted fathers more strongly than previously assumed. Id. at 49.

¹²Laura Hamilton, Simon Cheng, & Brian Powell, Adoptive Parents, Adaptive Parents: Evaluating the Importance of Biological Ties for Parental Investment, 72 AM. SOC. REV.

95, 109–10 (2007).

¹³The Evan P. Donaldson Adoption Institute’s 1997 Benchmark Adoption Study indicates 60% of Americans have personal experience with adoption; 60% have generally favorable attitudes toward adoption; and 70% approve of a birth mother’s decision to relinquish a child to adoption. The Evan P. Donaldson Adoption Institute, Benchmark Adoption Survey, http://www.adoptioninstitute.org/survey/baexec.html (last visited Apr. 29, 2008).

¹⁴Mary Beck, Toward a National Putative Father Registry Database, 25 HARV. J.L. &

PUB. POL’Y 1031, 1035–36 (2002).

¹⁵Judith S. Rycus, Madelyn Freundlich, Ronald. C. Hughes, Betsy Keefer & Emily Joyce Oakes, Confronting Barriers to Adoption Success, 44 FAM. CT. REV. 210, 212 (2006).

¹⁶Tamar Lewin, Unwed Fathers Fight for Babies Placed for Adoption by Unwed Mothers, N.Y. TIMES, Mar. 19, 2006, at A1.

Page 298

298 CAPITAL UNIVERSITY LAW REVIEW [36:295

The momentum has built towards enactment of a national putative father registry database such that Senator Mary Landrieu introduced one in the United States Senate in 2006 called the PROUD FATHER ACT.¹⁷

While Congress did not enact it, its legislative intent to protect the parental rights of earnest unwed fathers against interstate adoption,¹⁸to protect the privacy and safety of birth mothers,¹⁹and to expedite the prompt stable placement of children²⁰justifies its re-introduction and enactment. Only a national registry can accomplish these legislative goals, because relocation across state lines is so common.²¹When mothers and/or their children move from states of conception to second states that assume jurisdiction over the children for adoption or dependency, unwed fathers may be unable to locate their children. Such fathers’ efforts to assume parental responsibility must be protected. And where fathers do not promptly shoulder parental responsibilities, the children’s opportunities for prompt permanency with another family must be protected. Putative Father Registries provide such protection for fathers and their children when they guarantee notice to timely registered fathers, require fathers to legally establish paternity, and set registration deadlines to stabilize placement.

State registries garner media attention when a father contests a state’s registration deadline.²²Unfortunately, the media may focus on the sensational highlights of such a contested adoption and not expose the sound policies behind laws requiring unwed fathers to promptly establish their paternity legally and assume commensurate responsibilities.

Senator Mary Landrieu’s proposed PROUD FATHER ACT provides funding to states to voluntarily develop compatible registries; the

¹⁷Protecting Rights of Unknowing Dads and Fostering Access To Help Encourage Responsibility (Proud Father) Act of 2006, S. 3803, 109th Cong. (2006).

¹⁸Id. §§ 442(a)(1)(A), 441(8)(A).

¹⁹Id. § 442(a)(1)(D).

²⁰Id. § 445(c).

²¹75% of custodial mothers...