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

AuthorTimothy L. Arcaro
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
* 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
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
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).
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.
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
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.
POLY & L. 1199, 1212 (2003 ).

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