What Rights Does an Unwed Biological Father Have When a Mother Wants to Give up a Child for Adoption?

A Michigan attorney recently opined that a biological mother has the right to do anything she wants to do with a child regardless of a biological father’s wishes. While I certainly respect this attorney's right to express his opinion on moral issues, I strongly disagree with the opinions he has expressed on legal issues.

It is true that the law provides that a mother can terminate her pregnancy without the father’s consent. It is not true that a mother can give a child up for adoption without the biological father's consent and/or that she can avoid the biological father exercising any rights unless she chooses to keep the child. A father’s parental rights are substantial and are protected under the Due Process clauses of both the Michigan and the United States Constitutions.

Now I'm up here on my "constitutional highhorse" and my goal is to define what legal rights a father has to a child if he is not married to the mother. This discussion does not include a situation where the mother is married to another man during either conception or birth. That situation raises even more complicated issues that were discussed on this blog in April 2005. [You can see Numerick v Krull, decided by the Michigan Court of Appeals on February 15, 2005, Docket No. 249172 for the state of Michigan law.]

The issues involving an unmarried mother and an unmarried father are many and are complicated. But Michigan’s Adoption Code clearly requires notice and hearing must be provided to a putative father before his parental rights may be terminated to permit adoption of a child. If his consent to an adoption is not obtained and where a mother refuses to provide the identity of the biological father to a court, an adoption may later be subject to challenge provided that the father is subsequently able to learn that the child has been given up for adoption without his knowledge and consent.

Most adoptive parents would prefer to avoid the uncertainty of a later challenge to an adoption by making sure that a biological father’s identity is known and that his consent is given or that his parental rights are otherwise legally terminated.

How a Biological Father Can Protect his Parent-Child Relationship?

Access Blog Archives: all step-parent adoption posts here.

IMPORTANT UPDATE: November 7, 2013

To read other posts about step-parent adoptions, especially a 2013 post about a serious challenge to the application of adoption statutes that will be resolved by the Michigan Supreme Court, see the following posts:

In the Matter of AJR,  a very important case that will determine the future of step-parent adoptions  [See Post here]

Do you need help with a paternity or child support case? Find a Michigan Family Lawyer near you.

Comments

[Jeanne M. Hannah]

Children cannot choose where they want to live. If your son can get solid evidence of the mother's drinking and drug use, then he should file a motion with the court to change custody.

[Teresa Ingram]

to add to my previous post, my daughter is a drug addict, and the man she is with now is also a drug addict.

[Teresa Ingram]

I have two grandchildren who have been taken to another state and my daughter will not send them back to their father who has has soul custody of them for the last year. They were never married. My daughter let my granddaughter come home and a week later showed up with a police escort stating that the father had kidnapped her, and because they were never married, he was forced to let her go. What about the rights of a child who clearly does not want to be with her mother? I read something about "PPO" what is this? What rights do I have as a grandmother who is clearly concerned for the welfare of my grandchildren?

[Jeanne M. Hannah]

Your only hope is that legislation that is currently pending will be enacted to give biological fathers legal rights to their children born or conceived during a marriage. Right now all he has is what she is willing to give him.

[stacey rockford]

my son has a 2year old boy with a woman who was seperated from her husband when the baby was concieved--later she got back with the husband (now seperated again) but has never denied my son is the father---my son signed the birth certificate but it was rejected by the state---my son has his son 80% of the time---the problem is he has no legal rights and would like some incase something was to happen in the future---where do we start

[Jeanne M. Hannah]

Sandi, you said: "The court is telling him he has NO RIGHTS, and NO WAY to establish paternity."

I think he must have misunderstood whomever he spoke with. Of course he has rights. Did he contest the PPO?

He can file a Complaint to establish paternity. Please schedule a consultation with me so that I can help you help your son.

[Sandi Ross]

My son's daughter was just born last month. He is not married to the mom. After the birth she made up all kinds of abuse stories & moved in with a new "domestic partner". I am positive she was a lesbian all along & used my son to have a baby, he is heartbroken and does not understand what just happened. She is denying him a dna test or any paternal rights, even though she gave the baby his last name and stated on the restraining order that they "have a mutual child" together. This girl is awful. She "lost" my deceased mother's wedding ring that my son gave her, she gave the replacement ring my son bought to her girlfriend, and she POSTED all of this (including the restraining order) to facebook.

What on earth can my son do? The court is telling him he has NO RIGHTS, and NO WAY to establish paternity. I cannot believe Michigan law would be so UNFAIR, is it true??

[Kari S.]

I am the birth mother in the Kelsey S. present case. Yes, there was an issue of fathers rights, however, where were my rights when the judge court ordered me to take custody of my son totalling ignorring the trauma that it could (and did) cause?

[Daniel Lee]

Tennessee passed a baby abandonment law which created a new way to terminate parental rights (no notice or opportunity to be heard). Fortunately, I don't think our law has been used even once, in the last three years or so.

I've done a few constitutional challenges, and to date the courts have simply refused to answer the questions put before them.

The key points are strict scrutiny is the level of review, the compelling state interest is a child in harm to the level of the state's abuse statutes, and the burden heavily weighs on the state when fundamental rights are at issue.

Persons in the shared parenting movement doing constitutional challenges agree on the above. What we've been stuck on is the least intrusive rememdy when unmarried parents are in disagreement over an issue such as where the child will attend school, or have medical care performed.

My thought is the parents retain joint physical custody, and rotate the legal custody status on a basis of every 4 years or so.

Daniel Lee

[Tracey]

Thank you for clarifying this for me. I was aghast as I read the opinion of that Michigan attorney and the others who opined similarly after him. I couldn't understand how anyone could think in this day and age that the putative father had absolutley no rights until after birth. I thank you for clarifying that info and for providing cites to help confirm your post.