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?
See Jeanne Hannah's website for more information about how a biological father can protect his parent-child relationship.
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.
Posted by: Tracey | 08/08/2005 at 09:34 AM
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
Posted by: Daniel Lee | 10/19/2005 at 03:47 PM
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?
Posted by: Kari S. | 11/12/2005 at 01:35 AM