According to Kathleen Silber, Independent Adoption Center's clinical and associate executive director, more than 80 percent of domestic adoptions are open adoptions. An open adoption is one that encourages relationships between the birth family, often including birth grandparents and brothers and sisters; the child; and the adoptive parents. While many place great emphasis on the rights of the birth mother during an open adoption process, fathers’ rights during open adoption depend on legal recognition that you are the child’s birth father.
Types
States define the term “father” differently, and state statutes can include a "presumed father" definition, a "putative father" definition, or no legal definition at all. Many states presume you are a child’s birth father if you meet certain criteria. According to ChildWelfare.gov, these criteria include marriage, the designation of “father” on your child’s birth certificate, an acknowledgment of paternity in writing, or the paying of child support.
In a case where you do not meet these criteria, but believe yourself to be the child’s biological father, in states that have a "putative father" definition, you can voluntarily acknowledge paternity by adding your name to a putative father registry, or by filing an affidavit or acknowledgment of paternity with your local court.
Effects
A presumed father’s rights in an open adoption mirror those of the birth mother. A presumed birth father has the right to make decisions, provide information, and participate in or prevent the open adoption.
A putative father traditionally has fewer legal rights. While acknowledging paternity or placing your name on a putative fathers' registry will ensure notification if the birth mother chooses to place the child for adoption, doing so does not grant you any legal rights. Despite the fact that some challenge this standing, using the Due Process and Equal Protection clauses of the U.S. Constitution's 14th Amendment--ChildWelfare.gov states that individual states have “almost complete discretion” in determining a putative father’s rights during open adoption proceedings.
Time Frame
States place time limits on asserting your rights as a putative father. For example, in Minnesota, you must register between the time of conception and 30 days after the birth to receive notice if the birth mother chooses to place the child for adoption. If you do receive notice, you have 30 days to give consent, begin paternity actions to prevent the adoption, or remove your name from the registry. After the 30-day window closes, you have no further rights.
Process
When a presumed or putative father contests an open adoption, a court must terminate his parental rights before the adoption can proceed. The process of a contested adoption and termination of parental rights or the petition for adoption occurs in six steps. The first two steps occur before you receive notice of the impending open adoption. The birth mother first gives physical custody of the child to an adoption agency or privately chosen individuals, then files a petition asking for termination of your parental rights. At that point, you receive notice of the impending adoption and petition and have an opportunity to respond. If you object, the court schedules a consent hearing. If you win, adoption proceedings stop. If the birth mother wins, the court schedules a best interests hearing where the court will terminate your parental rights and order the open adoption to proceed.
Considerations
Due to the discretion states have to grant or deny fathers rights during an open divorce, Adoption.com recommends consulting an adoption attorney to assist you in the process and states this is the best way to preserve your rights as a father.
