Putative father registry deadlines and the Servicemembers Civil Relief Act (SCRA).

• Author: Smith, Erik L.

1. INTRODUCTION II. ADOPTION LAW A. Presumed and Putative Fathers B. Putative Father Registries C. The Servicemember's Vulnerability to PFR Deadlines III. THE SERVICEMEMBERS CIVIL RELIEF ACT (SCRA) A. Section 526(a) B. Application of Section 526(a) to PFRs C. Laches 1. Constructive Notice Theory a. Prejudice b. Unreasonable Delay 2. Constructive Notice Statutes D. Developed Financial Relationship IV. CONCLUSION I. INTRODUCTION

   Your client is an unwed military servicemember stationed overseas. A month after deployment, the service member's ex-girlfriend told him she was pregnant and needed money for pre-natal bills. For a few months, the servicemember complied. The servicemember then realized he did not actually know a pregnancy existed or how his support money was being spent. He demanded proof of the pregnancy or of the pre-birth expenses and, until he received these, he would send no money. The ex-girlfriend refused to send him information and told him that if he did not send support, she would place the child for adoption. The servicemember told her he opposed adoption and wanted to see the bills. The ex-girlfriend did not comply. For the next few months the servicemember sent no support, but repeatedly asked for evidence. Later, the mother called the servicemember and told him the child had been adopted.

   Under your state's adoption act, an unwed father has a right to notice of, and to veto, the adoption of his child only if he paid for pre-birth expenses to the best of his ability and filed with the state's putative father registry (PFR) before the mother surrendered the child. The adoption petitioner responds to your client's intervention by arguing the following: Your client had no right to notice because he did not file with the PFR. That the mother did not keep your client informed is irrelevant because she had no duty even to tell him she was pregnant, much less to send him information. Moreover, your client could have ameliorated any deception by filing with the PFR. He could easily have registered during the pregnancy despite being in the service. The support your client sent to the mother did not waive the requirement to register. Nor was his failure to register excused by military service because he never had a vested right. Your client shirked his obligation, and he has no recourse because the adoption is complete. Is the petitioner's argument correct?

   This article analyzes how courts may apply the Servicemembers' Civil Relief Act (SCRA) to PFR deadlines when servicemembers contest adoptions of their children born out of wedlock. Section II discusses adoption law in the context of unwed fathers and the general application of PFRs. Section III discusses the applicable portion of the SCRA and predicts how the Act will apply to servicemembers given the lack of direct precedent so far, including the applicability of the common law doctrines of laches, constructive notice, and developed relationship.

2. ADOPTION LAW

   1. Presumed and Putative Fathers

      Adoption law recognizes two general classes of fathers: presumed and putative. Presumed fathers are men married to the mother when the child was conceived or born, named as the father by the mother, or otherwise given presumptive status as fathers under the law. (1) All other fathers are putative. (2)

      Presumed fathers have a constitutional right to notice of adoption proceedings affecting their child. (3) Putative fathers, in contrast, must preserve their notice right by taking action under state statutes. That might include establishing paternity, developing a personal and financial relationship with the child, or appearing on the birth certificate. (4) Until then, the putative father's notice right remains only an "opportunity." (5) Constitutional principles require that the state's methods for grasping that opportunity be within the putative father's control. (6)

   2. Putative Father Registries

      Because achieving presumed status may not, in fact, be within a father's control, most states have enacted some form of putative father registry. A PFR is a registry of men who want to be notified of an adoption proceeding involving a child they have, or may have, fathered. (7) Thus, PFRs list men who (1) file a document with a state agency (2) by a certain time (3) to establish a recognizable interest in (4) a particular child. PFRs vary in what the father claims by filing, the period of time during which he may register, and the interest that filing establishes. (8) Depending on the state, filing can be a notice of possible paternity, intent to claim paternity, or claim of paternity. (9) Filing deadlines can be a set number of days after the child's birth, or the date of certain actions by third parties, such as the date of the consent, surrender, placement, petition, or adoption order. The interest established by timely registration can range from the right to notice of any adoption proceeding in the state involving the child (10) to the right to notice of an adoption proceeding where no presumed father exists. (11) A determination of non-paternity eliminates the registrant's standing. To secure the early permanence required in adoptions, PFR filing deadlines are strict. Most states make no exceptions, and failure to register is usually fatal to the father. (12) No federal registry yet exists. (13)

      Registration gives a putative father the right only to receive notice of the petition, not to veto the adoption. Absent obvious unfitness, the need for a registered putative father's consent typically depends on whether he sufficiently supported or cared for the mother before the child was surrendered or placed. (14)

      The main criticism of PFRs is that men remain unaware of them absent specific research, or adequate promotion, of the law. Still, PFRs are facially constitutional and, so far, constitutional as applied unless unfair time constraints or the mother's interstate travel thwarted the father's effort to assert parental rights. (15) Also, due process under the United States Constitution does not appear to require a mother to tell a putative father about a pregnancy or birth, or to reveal a putative father to the court. (16) Some state schemes leave the mother implicitly free to lie to the father, the agency, or the court. (17) PFRs purportedly cure that problem. (18)

   3. The Servicemember's Vulnerability

      Deployed servicemembers are especially vulnerable to PFR laws. Given their circumstances, including relatively frequent reassignment and possible deployment overseas, they are more likely than civilian fathers to lack awareness of their paternity. Even when aware of the child, the servicemember may not know about the state's PFR or have ready access to the law. His location and circumstances may logistically keep him from determining paternity or developing a relationship with the child that might override the PFR requirement. Even where the servicemember establishes a financial relationship by sending money to the mother, he risks not getting notice, and therefore defaulting, should he not register. (19) By the time the servicemember discovers the proceeding, the registration deadline will likely have passed. The servicemember will then need to contest or overturn the adoption without having registered timely. Assuming biological fatherhood, his standing will depend initially on whether the SCRA (20) suspended the PFR filing deadline.

3. THE SERVICEMEMBERS CIVIL RELIEF ACT (SCRA)

   1. Section 526(a)

      No precedent exists on the SCRA's application to PFR deadlines. (21) The controlling portion of the SCRA is Section 526(a), (22) which suspends the time for bringing an "action" or "proceeding" in a court, state agency, or governmental department:

      The period of a servicemember's military service may not be included in computing any period limited by law, regulation, or order for the bringing of any action or proceeding in a court, or in any board, bureau, commission, department, or other agency of a State (or political subdivision of a State) or the United States by or against the servicemember or the servicemember's heirs, executors, administrators, or assigns. (23) Like its predecessor the Soldiers' and Sailors' Civil Relief Act (SSCRA), the SCRA is "unambiguous, unequivocal, and unlimited," (24) and always liberally construed to protect the servicemember. (25) The Act aims to "relieve the soldier of the consequences of his handicap in meeting his civil obligations so he can devote his energies to military duties." (26) No national emergency need exist. (27) All members of the armed forces, including career personnel, receive the Act's protections. (28) The servicemember qualifies for the time suspension even though he could pursue his rights while serving. (29) Once military service is shown, the limitation period is automatically suspended for the duration of service. (30) Even where the state has a clear policy interest in prompt judicial resolution, the policy must yield to Section 526(a). (31) Being mandatory, Section 526(a) may also be raised for the first time on appeal. (32) However, courts will not remand where invoking Section 526(a) would not change the result on the merits. (33)

   2. Application to PFRs

      To fall under Section 526(a)'s suspension, then, the PFR requirement must be (1) an action or proceeding (2) brought in a court or governmental department or agency (3) within a time period limited by law. (34) The time period and governmental department elements of Section 526(a) apply to PFRs, which require filing a document with a government agency or court by a certain time. But no court has determined whether a PFR filing requirement is an "action" or "proceeding" under Section 526(a)'s framework. Section 502(2) of the SCRA makes the Act applicable to administrative "transactions" that may adversely affect the servicemember's civil rights during his military service. (35) The SCRA does not define "transaction," but legal dictionaries define...