No More Secret Adoptions: Providing Unwed Biological Fathers with Actual Notice of the Florida Putative Father Registry

• Author: Timothy L. Arcaro
• Pages: 449-490

NO MORE SECRET ADOPTIONS: PROVIDING UNWED

BIOLOGICAL FATHERS WITH ACTUAL NOTICE OF THE

FLORIDA PUTATIVE FATHER REGISTRY

BY TIMOTHY L. ARCAR O*

I. INTRODUCTION

In 2003, the Florida Legis lature approved sweep ing changes to

Florida’s codified Adoption Act. At the hea rt of thes e changes was the

promulgation of the Florida Putativ e Father Registry.1 The 2 003 Florida

Adoption Act created a legal presumption that every unwed biolog ical

father in Florida had knowledge of the existence of the registry and its

requirements even though the father received no actual notice.2 This

presumption ultimatel y worked as a waiver of parental rights for those

fathers who fail ed to timely register. Unwed bio logical fathers who

registered properly preserved thei r right to rec eive actual notice of an

intended adoption i nvolving their offspring.3 Where an unwed biological

father estab lished co mpliance with t he addi tional requirements set forth in

the statute, his cons ent to the adopt ion would also be required.4

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* The author wishes to thank Professor Michael Dale for his invaluable contributions to

this project and Professor Joel Mintz for his thoughtful feedback on earli er drafts.

1 FLA. STA T. ANN. § 63.054 (West 200 5) (setting forth the “[a]ctions required by an

unmarried biological fath er to establish parental rights”).

2 But see id. § 63.063(4)(d) (stat ing that out of state fathers were not required to

register b ecause “an unmarried biological father who resides in another state may not, in

every circumstance , be reasonably presu med to know of and comply with the requirements

of this chapter”).

3 See id. § 63.063 (4) (listing registration requirement s with w hich out-of-state unwed

biological fathers must com ply).

4 Id. § 63.062(2). The statut e sets out the compliance requirements:

With regard to a child who is younger than [six] months of age at the

time the child is placed with the adoptive parents, an unmarried

biological father must h ave demonstrated a full commitmen t to his

parental responsibility by having performed all of the following acts

prior to the time the moth er executes her consent for adoption:

1. Filed a notarized claim of p aternity form with the Florida Put ative

Father Reg istry within the Office of Vital S tatistics of the Department

(continued)

450 CAPITAL UNIV ERSITY LAW REVIEW [37:449

The 2003 Florida Adoption Act obli gated the Fl orida Department of

Health to pu blicize the Flori da Putative Fath er Registry.5 Regardless of the

Department’s publ icity efforts, however , unwed biological fathers were

legally pres umed to know and understand t heir legal obl igations relat ing to

the Registry requiremen ts.6 While an unwed bio logical father was entitled

to receive an adoption disclosure rel ating to an intended adoption of his

offspring, that document did not provide any reference to the Florida

Putative Father Registry.7 The 2003 Adoption Act raised constitutional

concerns regarding the Regi stry because t he Act fai led to p rovide actual

notice to un wed biological fathers in adop tion proceeding s, it eradicated all

defenses for fail ing t o regi ster with the Registry, and it created a series of

questionable legal presumptions. The Florida Supr eme Court had the

opportunity to address t hese issues i n Heart of Adoptions, Inc. v. J.A.8 The

court chose to avoid the constitutional issues implicated in the statute by

of H ealth, which form shal l be maintained in the con fidential registry

established for that purpose and shall b e considered filed when the

notice is ente red in the registry o f notices from unmarried biological

fathers.

2. Upon service o f a notic e of an intended adoption plan or a petition

for terminat ion of p arental rights p ending adoption, executed and filed

an affidavit in that proceeding stating that he is p ersonally fully able

and willing to take r esponsibility for the child, setting forth his plans for

care of the chi ld, and agreeing to a court order of child support and a

contribution to th e payment of living and m edical expenses incurred for

the mother’s pregnancy and the child’s birth in a ccordance w ith his

ability to pay.

3. If he had knowledge of the pregnancy, paid a fair and reason able

amount of the expenses incurred in con nection with th e mother’s

pregnancy and the child’s birth, in accordance with his financial ab ility

and when n ot prevented from doing so by the birth mother or person or

authorized agency having lawful custody of the child.

Id. § 63.062(2)(b).

5 Id. § 63.054(11); Tam ar Lewin, Unwed Fathers Fight fo r Babies Placed for Adoption

by Mothers, N.Y. TIMES, Ma r. 19, 2006, § 1, at 1.

6 FLA. STAT. ANN. § 63.053(2).

7 See id. § 63.085.

8 963 So. 2d 189 (Fla. 200 7).

2008] NO MORE SECR ET ADOPTIONS 451

reconciling the statutory language to prov ide actual notice of intended

adoptions to p utative fathers.9 Although the court resolved the notice

issue, other questions regarding the construction, applicati on, and

constitutionali ty of the Florida Put ative Father Regis try remain.

In Part II of this article, I will explain the operation of Florida’s

Putative Father Registry system an d the leg al presumptions placed on

unwed bio logical fat hers as set forth in Florida’s codified ado ption act. In

Part III, I will review the four Supreme Court decisions that have

established the parameters of putati ve father rights in ado ption cases. In

Part IV, I will examine criticisms of the Florida Putative Father Registry

system and their relevance after Heart of Adoptions. In Part V, I will

explain the rat ionale and imp act of the Flo rida Supreme Court’s decision in

Heart o f Adopt ions. In Part VI, I will exa mine unanswered questions left

in the wake of the Supreme Court of Florida’s ruling in Hear t of

Adoptions. Lastly, I will offer my con clusions in Part VII with a summary

of putative father ri ghts in Florida post Heart of Ado ptions.

II. FLORIDA’S PUTATIVE FATHER REGIST RY

The Flori da Legisl ature ini tially creat ed the Registry in 20 01 as a way

to strengthen the goals o f permanency, stability, and finality in all adoptio n

matters.10 Accordingl y, Florida’s codified adoption act prov ided

absolutely no relief under any circumstan ces to an unwed biological father

who failed to tim ely register.11

In 2003, the Florida Legislature amended secti on 63.054 of the Florida

Statutes in order to create the Florida Putativ e Father Registry when

Governor Jeb Bush s igned the b ill i nto law on May 30, 2003.12 Fl orida’s

Registry was designed to operat e s imilarly to other state regis tries in that

any man who believed he h ad fath ered a child out of wedlock could file a

claim of paternity with th e R egistry indicating h is desire and intention to

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9 Id. at 200. The adoption agency mus t provide the notice. Id. E ffective July 1, 2008 ,

the Florida Su preme Court’s decision in Heart of Adoption s was codified by the legislature

in s ection 63.062 of the Florida Statutes, which requir es notice of intended adoptions be

provided to putative fathers and allows them up to thirty days to register with the putative

father registry. FLA. STAT. ANN . § 63.062(3) (West Supp . 2008).

10 See FLA. STAT. ANN. § 63.022(1)(b)–(d ) (West 2005).

11 See id. § 63.053(1).

12 Jennafer Neufeld & Dalia Georgi, In re: Adoption of a Minor Child, 11 J. GEN. SOC.

POL’Y & L. 1199, 1212 (2003 ).