Florida's putative father registry: more work is needed to follow the established national trends toward stable adoption placements.

• Author: Hickman, Amy U.

In 2003, the legislature revised Florida's adoption law to ensure the stability of adoption judgments. (1) This law evolved after several years where adoption reform was the subject of judicial and legislative scrutiny. Several high profile contested adoption cases caught the attention of the public, the media, and the legislature, calling into question the security of the adoption placements under Florida law. (2) After a highly criticized 2001 reform, the Florida Legislature followed the majority of states by rejecting a complicated, open-ended notice requirement for birth fathers, and enacted Florida's Putative Father Registry. (3) Nationally, states have enacted putative father registries as a constitutional means of protecting an unwed father's rights while advancing the prompt, secure placement of children in adoptive homes. (4)

Florida's Putative Father Registry was premised upon well-established U.S. Supreme Court and Florida Supreme Court precedent. (5) The legislation protects the due process rights of all parties to the adoption process and strictly defines the grounds and timing of any challenge to an adoption judgment. (6) In a handful of cases, the Florida district courts of appeal have reviewed the registry provisions and the districts have reached widely different results. Some districts have questioned the validity of the registry, (7) while others have applied the specific dictates of the law. (8) In a series of decisions by the Second District Court of Appeal, (9) the court gutted the registry and disregarded the law's legislative directives. (10) Recently, the Florida Supreme Court disapproved of the majority of these lower court decisions and interpreted the law to impose a mandatory notice requirement for all identified and locatable fathers in all adoptions. (11)

Paternity registries appear at the center of the majority of the states' adoption laws and in the emerging federal adoption legislation. In an effort to understand the case law interpreting Florida's adoption statute and the emergent need for stability to protect the most vulnerable citizens of our state, the following presents a review of the history of Florida's adoption reforms; the enactment of Florida's Putative Father Registry; the recent case law interpreting the registry; and state and federal legislative proposals designed to reduce contested adoptions, ensure protection of father's rights, and protect the stability of adoption.

History of Florida's Adoption Reform

In 2001, the Florida Legislature passed a massive and controversial overhaul of Florida's adoption act, embodied in F.S. Ch. 63. (12) The rewrite provided for an open-ended notice requirement which mandated that a potential father, regardless of his legal status, receive actual or constructive notice of an adoption action. The law's extensive notice provisions mandated that a woman consent to publishing her personal sexual history that could have led to conception when a father's location or identity was unknown. Governor Bush declined to sign the legislation, criticizing the law's failure to require that a birth father take affirmative action on behalf of his child if he later wanted to raise a parental claim. (13) The governor proposed the enactment of a putative father registry "similar to those already in existence in the vast majority of states around the country." (14)

The 2001 adoption reform also faced substantial challenges in the judicial system as well as the courts of public opinion. (15) The Fourth District Court of Appeal declared the law's notice provisions (16) unconstitutional, concluding that the law substantially interfered with a woman's independence in choosing adoption and her constitutional right not to publicly disclose intimate personal information regarding her sexual relations when a father is unknown. (17) Faced with the responsibility to protect the constitutional rights of all persons involved in an adoption, the legislature soon passed a second reform of Florida's adoption law. (18)

2003 Enactment of Florida's Putative Father Registry

To promote the stability and permanency of adoption judgments, the Florida Legislature rejected the open notice requirements of the 2001 law and enacted a putative father registry. (19) Putative father registries are designed to protect the rights of all parties to an adoption proceeding, including the rights of the unmarried biological father to notice and an opportunity to be heard. (20) Registries also protect the rights of the birth mothers to make an independent decision in their child's best interest when the father fails to act and timely assert his legal rights to the child. (21) The legislature's stated purpose in enacting the 2003 revisions of the Florida adoption act was to bring certainty and uniformity to Florida's adoption proceedings by balancing the rights of the child, the birth mother, the putative biological father, and the adoptive parents; preventing protracted litigation in adoption cases, which is undeniably harmful to the child; ensuring the integrity of adoptive placements and the finality of adoptions; encouraging responsible fatherhood; and combating fraud. (22)

A state registry provides the biological father with the control and means to notify any adoption entity of his desire to parent the child. If a pregnant woman disappears or misrepresents the identity of the biological father, the biological father can protect his own interests by registering. The registry protects the rights of a birth mother who wishes to plan an adoption for her child, but is uncertain of the father's identity, is fearful of him, or wishes to assert her privacy rights. The registry also provides the prospective adoptive family with security when receiving a child into their home. A diligent search of public records and the confidential centralized registry establishes a bright line test as to who must consent to a proposed adoption. (23)

An unmarried biological father's (24) right to register begins at conception. (25) A man may register even when he is not certain of the identity of the biological mother. The statute requires that the Office of Vital Statistics of the Department of Health maintain the following information: the mother's name, physical description and place of residence; the father's name, physical description and address; the place of conception; and the child's date and place of birth. (26) All requests for a diligent search of the registry must include this information, as available, and is the predicate for the Department of Health's diligent search. (27)

The Putative Father Registry is clear about the consequences of an unmarried biological father's failure to timely assert his rights and register his claim of paternity. If a father fails to legally establish his rights by the date a petition to terminate his parental rights is filed concerning the child, his rights are deemed waived and surrendered. (28) The law was designed to provide a clear, unambiguous framework for identifying fathers who have legal rights to object to an adoption proceeding.

Proponents and opponents of the paternity registry articulated two primary issues of concern when drafting Florida's Putative Father Registry. These two issues were protecting the privacy rights of the parties and assuring notice to a biological father who timely established his legal rights by registering his paternity before the filing of the petition to terminate parental rights or otherwise legally establishing rights to the child. (29) Florida's registry was designed to protect these rights.

First, the law contains several provisions to protect a party's privacy. The registry allows a father to appoint a designated agent or alternative address for service of notice and pleadings. (30) The registry is exempt from the provisions of the Sunshine Act (31) and the information in the registry is only available to the adoption entity handling the child's adoption and pro se applicants in possession of a court order. The database comprising the Florida Putative Father Registry is confidential and separate from all other state databases, and no local, state, or federal agency has standing to search the registry. (32)

Second, the 2003 revisions and Florida case law include provisions concerning notice of the registry to all Florida residents and notice of a particular adoption to the child's parents. The Office of Vital Statistics of the Department of Health must create and disseminate forms and informational pamphlets and/or publications through its offices and informational Web site, the Florida Department of Children and Families' offices and informational Web site, public and charter schools' health class curricula, hospitals, adoption entities, libraries, medical clinics, schools, universities, and providers of child-related services. Additionally, the Department of Highway Safety and Motor Vehicles shall offer each person applying for a Florida driver's license or identification card or renewal of a license or identification card these information pamphlets or publications. (33) While the law presumes that a biological father is on notice of a pregnancy at conception, the adoption entity handling a particular adoption has a duty to notify and secure a consent from each registered unmarried biological father and those fathers who timely act and meet the criteria of a man whose consent is required to the adoption. (34)

Constitutionality of Florida's Putative Father Registry

The 2003 adoption reforms followed the dictates and reasoning of the U.S. Supreme Court and the Florida Supreme Court. (35) In 1983, the U.S. Supreme Court in Lehr v. Robertson, 463 U.S. 248 (1983), (36) upheld the constitutionality of New York's putative father registry which was substantially similar to Florida's registry. The Court reviewed the constitutional rights of the unwed biological father and concluded that constitutional rights do...