Unmarried Fathers and Adoption: 'Perfecting' or 'Abandoning' an Opportunity Interest

• Author: Laura Oren
• Position: J.D. University of Houston Law Center, 1980; Ph.D. Yale University 1974
• Pages: 253-293

UNMARRIED FATHERS AND ADOPTION: “PERFECTING”

OR “ABANDONING” AN OPPORTUNITY INTEREST

LAURA OREN∗

In recent years, the problem of the unmarried or putative father

increasingly has taken center stage in constitutional and statutory debates

about adoption. Three converging trends have contributed to this

development. One of these has been demographic and cultural: An

increasing number of American women are bearing children without

entering into marriage first. In 2004, the rate of births to unmarried

women was 46 per 1000, or 36% of all births.1 This represented a sharp

rise since 1980 when the comparable figure was 18%.2 Over 1.47 million

children were born to unmarried women in 2004.3 Consequently, there are

many more unmarried fathers as well.4

Copyright © 2007, Laura Oren.

∗ Laura Oren, J.D. University of Houston Law Center, 1980; Ph.D. Yale University

1974. She is a Law Foundation Professor at the University of Houston Law Center and Co-

Director of the Center for Children, Law & Policy at UHLC. The University of Houston

Law Foundation has provided financial assistance for this project. Thank you to University

of Houston Law Center librarian Jenel Cotton for her invaluable assistance on this project

and to Professor Barbara Atwood for her comments.

1 Childstats.gov, Forum on Child and Family Statistics, America’s Children in Brief:

Key National Indicators of Well-Being, 2006: Population and Family Characteristics,

http://childstats.gov/americaschildren06/pop.asp (last visited May 29, 2008);

Childstats.gov, Forum on Child and Family Statistics, POP7.A: Births to unmarried

women: Birth rates for unmarried women by age of mother, 1980–2004,

http://childstats.gov/americaschildren06/tables/pop7a.asp?popup=true (last visited May 29,

2008).

2 FEDERAL INTERAGENCY FORUM ON CHILD AND FAMILY STATISTICS, AMERICA’S

CHILDREN: KEY NATIONAL INDICATORS OF WELL-BEING 2005 11 (2005), available at

http://childstats.gov/pdf/ac2005/ac_05.pdf.

3 Joyce A. Martin, et al., Births: Final Data for 2004, NAT’L VITAL STATISTICS

REPORTS, Sept. 29, 2006 at 2., available at http://www.cdc.gov/nchs/data/nvsr/nvsr55/

nvsr55_01.pdf.

4 The rise in non-marital births together with other factors has changed the shape of

American households. The 2005 American Community Survey of the Census Bureau

reported that for the first time the “traditional” family of married parents living together

with their children now represents a bare minority of American households. The United

States Census Bureau report on household and families from the 2005 American

Community Survey Data Set indicated that only 55.2 million of the 111.1 million

households consisted of a married couple with children family household. United States—

(continued)

254 CAPITAL UNIVERSITY LAW REVIEW [36:253

The other two trends have been in public policy and judicial doctrine.

Since the 1974 Amendment to the Social Security Act, government has

become increasingly active in finding putative fathers to pay child support

and in promoting paternity establishment toward that end.5 In addition, in

a series of important decisions the United States Supreme Court

transformed the jurisprudence of what had been called “illegitimacy.”6

Non-marital children gained constitutional rights,7 and so did their

General Demographic Characteristics: 2005, http://factfinder.census.gov/home/saff/

main.html (follow “Data Sets”; then follow “American Community Survey” hyperlink;

then select “2005 American Community Survey” hyperlink; then follow “Data Profiles”

hyperlink; then follow “Show Result” hyperlink) (last visited May 29, 2008).

5 See infra notes 18–29 and accompanying text. The stated purpose of Title IV-D of

the 1974 Amendment, entitled “Child Support and Establishment of Paternity,” is to

enforce “the support obligations owed by absent parents to their children, locating absent

parents, establishing paternity, and obtaining child support . . . .” Social Services

Amendments of 1974, Pub. L. No. 93-647, § 451, 88 Stat. 2337, 2351 (1975) (emphasis

added). See also Mary Fisher Bernet, The Child Support Provisions: Comments on the

New Federal Law, 9 FAM. L.Q. 491, 491–92 (1975); Laura Oren, Thwarted Fathers or Pop-

Ups?: How to Determine When Putative Fathers Can Block the Adoption of Their Newborn

Children, 40 FAM. L.Q. 153, 156 (2006) [hereinafter Oren, Thwarted Fathers] (“Since

1974, under the federal government’s ‘carrot-and-stick’ approach to ‘cooperative

federalism,’ Congress has required any state receiving federal assistance for AFDC,

Medicaid, or food stamps to push the paternity and support agenda ever more

aggressively.”); Laura Oren, The Paradox of Unmarried Fathers and the Constitution:

Biology ‘Plus’ Defines Relationships; Biology Alone Safeguards The Public Fisc, 11 WM.

& MARY J. WOMEN & L. 47, 72 (2004) [hereinafter Oren, Paradox] (“After the Social

Security Amendments of 1974, pursuant to ‘cooperative federalism,’ states had to require

that mothers receiving AFDC cooperate in establishing the paternity of putative fathers.”).

6 See infra notes 7 & 8; see also Ralph C. Brashier, Children and Inheritance in the

Nontraditional Family, 1996 UTAH L. REV. 93, 112 n.64 (1996) (“noting evolution of

statutory language from ‘child born out of wedlock’ to ‘non-marital child,’ representing

another link in the chain of linguistic tolerance that has caused the terminology to evolve

from ‘bastard’ to ‘illegitimate’ to ‘out of wedlock’ to the eminently nonjudgmental ‘non-

marital.’”).

7 See, e.g., Levy v. Louisiana, 391 U.S. 68 (1968) (finding a violation of equal

protection in the creation of a cause of action for wrongful death of a parent on behalf of

marital children but not on behalf of nonmarital children); Weber v. Aetna, 406 U.S. 164

(1972) (violating equal protection to exclude nonmarital children from sharing equally with

marital children in recovery of workers’ compensation benefits upon death of parent);

Gomez v. Perez, 409 U.S. 535 (1973) (denying right of paternal support to nonmarital

children while granting it to marital children violates the Equal Protection Clause). This

Article frames the issues primarily in terms of the legal claims of and against fathers.

(continued)

2007] UNMARRIED FATHERS AND ADOPTION 255

biological fathers.8 One aspect of this transformation relied on mere

biology alone. Children, or the State allegedly acting on their behalf, could

establish paternity upon a simple showing of the biological tie, especially

when it came to child support claims.9 Paradoxically, however, in a

different line of cases, culminating in Lehr v. Robertson,10 the Court

recognized the relationship rights of unmarried fathers, but only if they met

a “biology plus” standard.11 In the Court’s view, a putative father who

wished to protect his relationship with his child and prevent her adoption

by another man needed to do something extra to grasp the opportunity

presented by the biological tie.12 If he satisfied this criterion by stepping

forward, he secured constitutional protection.13 If not, the State enjoyed

wide latitude to dispense with his inchoate opportunity interest.14

The “biology plus” cases have not answered all the questions that they

raised about how an unmarried father may perfect, or conversely abandon,

his constitutionally protected opportunity interest. With very little direct

Children’s interests, however, clearly are at the heart of the concerns involving the adoption

triad (children, birth parents, adoptive parents).

8 E.g., Stanley v. Illinois, 405 U.S. 645, 649 (1972) (ruling that unwed father was

entitled to parental fitness hearing before being denied custody of his children); Quillon v.

Walcott, 434 U.S. 246, 247 (1978) (addressing the issue of stepfather adoption); Caban v.

Mohammed, 441 U.S. 380, 380–81 (1979) (holding unconstitutional a state law distinction

requiring unwed mother’s, but not unwed father’s, consent before allowing adoption of

non-marital child by stepparent); Little v. Streater, 452 U.S. 1, 16–17 (1981) (holding that

state must provide blood tests to indigent putative father where denial would operate to

foreclose his opportunity to be heard); Lehr v. Robertson, 463 U.S. 248, 251–52 (1983)

(acknowledging that a biological father who has come forward to participate in raising his

child would receive Due Process protection).

9 Oren, Paradox, supra note 5, at 48 (“[T]he Court held that a biological connection

alone established the requisite link in benefits cases . . . .”).

10 463 U.S. 248, 250–51 (1983) (addressing the issue of stepfather adoption).

11 Id. at 261 (“When an unwed father demonstrates a full commitment to . . .

parenthood by ‘com[ing] forward to participate in the rearing of his child,’ his interest . . .

acquires substantial [constitutional] protection . . . . But the mere existence of a biological

link does not merit equivalent constitutional protection.”) (quoting Caban, 441 U.S. at

392).

12 Id. at 262 (“The . . . biological connection . . . offers the natural father an opportunity

that no other male possesses to develop a relationship with his offspring. If he grasps that

opportunity and accepts some measure of responsibility for the child’s future, he may enjoy

the blessings of the parent-child relationship . . . .”).

13 Id.

14 Id.