South Carolina Lawyer
SC Lawyer, July 2010, #5.
South Carolina's New Responsible Father Registry: S.C. Code Ann. Sections 63-9-810 and 63-9-820
South Carolina LawyerJuly 2010South Carolina's New Responsible Father Registry: S.C. Code Ann. §§ 63-9-810 and 63-9-820By James Fletcher ThompsonThe Responsible Father Registry (RFR) is a newly created statutory mechanism by which a man who has potentially fathered a child with a woman to whom he is not married can ensure that he receives notice of a termination of parental rights (TPR) or adoption action involving the child. In order to establish his right to notice, a man must record his name in the state-maintained database-the Registry-along with the name of the woman. Then, if and when a TPR or adoption action is filed regarding a child of a woman named in the Registry, the law will require the party initiating the action to notify the registered man of the proceeding so that he may come forward to assert his rights to the child if he so chooses. The Registry ends the practice of serving fathers by John Doe publications.
The S.C. legislature enacted the statute in June 2009, and the S.C. Department of Social Services (DSS) began receiving registrations on January 1, 2010. The Registry applies to adoption and TPR actions filed on and after July 1, 2010, and covers all cases, whether the case is brought by DSS or a private attorney, and whether the case involves an infant or an older child. South Carolina is the 34th state to enact some form of "putative father registry."
This article explores the legal and ethical challenges posed by "John Doe" cases and examines legal precedent that, like the Registry, requires a biological father to be proactive in protecting his own rights. This article will also be an introduction to the operation of the Registry.
A. Controversial history of John Doe publications
A biological mother who is placing a child for adoption or who is having her parental rights involuntarily terminated by a court may not know the identity of the child's biological father, or she may choose to withhold his identity. Under previous law-that is, for cases filed prior to July 1, 2010-to terminate the parental rights of an unidentified biological father, the moving party, either the adoptive parents or DSS, had to publish a notice once a week for three consecutive weeks notifying John Doe of the pending TPR/adoption action. Thirty days after the last publication, John Doe was in default. See S.C. Code Ann. §§ 15-9-710(6) (1976) and 15-9-720 (1976). A default in adoption law has more grievous consequences than in other areas of law; the default by the unmarried biological father "constitutes consent" to the adoption. S.C. Code Ann. § 63-9-730(E)(3) (Supp. 2008).
The John Doe publication procedure has been roundly criticized as undermining the legitimacy of adoptions:
* First, it is uniformly agreed that biological fathers rarely see these notices. Even if a father were to happen upon a notice, critics contend that it is a legal fiction to assume that a "blind" John Doe notice, where neither the mother nor the biological father's name appears-only county and state of birth and perhaps date of birth-will alert the father that a legal proceeding is pending concerning his child;
* Furthermore, in those instances where a mother refuses to identify the father, John Doe publications allow a mother to use this "legal fiction" step to avoid giving the father actual notice, thereby enabling the mother to thwart a willing and earnest father's unwelcome involvement in the life of the child.
Thus, a biological father might not learn of an adoption until years after it is finalized and might then seek to overturn the adoption, thereby causing trauma to all involved, most regrettably to the child.
B. Mother's right to privacy
The problems of John Doe publications should be considered separate and apart from a woman's right to decline to name the father of her child. After all, withholding the father's identity is sometimes necessary in order to protect the privacy of a mother's sexual contacts. Further, a mother's motivation may not be nearly as self-serving or suspect as John Doe detractors suggest. There may be a number of possible justifications for a mother's refusal to name the biological father.
Citing a birth mother's right to privacy, the S.C. Supreme Court came down on the side of a birth mother's right to withhold the identity of the biological father and to invoke the "blind "John Doe publication - but only when the father has not accepted responsibility for the child. Evans v. South Carolina Dep't Soc. Servs., 303 S.C. 108, 399 S.E.2d 156 (S.C. 1990). In Evans, an unmarried mother...