Thwarted Fathers or Pop-Up Pops? How to Determine when Putative Fathers Can Block the Adoption of Their Newborn Children

Abstract

This article examines the rights of unmarried fathers in the context of newborn adoptions. Even after the Lehr v. Robertson (1983) case suggested that putative father registries might provide a solution, uncertainties persisted. Legislation and judicial rulings have constructed putative fathers of newborns into two contrasting models: There is the "thwarted father," who was frustrated in his genuine efforts to develop a relationship with his child, and there is the "pop-up pop," who appears too late but nonetheless claims the right to disturb adoption proceedings involving his biological child.

Uncertain about the constitutional constraints, the Uniform Commissioners, legislatures, and the courts have crafted legal rules that distinguish between putative fathers who must receive notice, those who also must give their consent before their children are adopted (or have their rights terminated first), and those who do not merit any involvement at all. In the 1990s, cases arising in California, Illinois, Iowa, and Florida led courts to conflicting conclusions, all delivered under the heat of intense public scrutiny. Although the Uniform Adoption Act and the Uniform Parentage Act of 2000 suggested some mechanisms to resolve the newborn problem, a survey of recent cases in state courts shows that line-drawing is still not easy. Factors at play include, inter alia, the courts' concerns for the integrity of the judicial process and about the misbehavior of participants, for timeliness, and for the type of commitment offered by the putative father. At the same time, legislatures have rushed to enact so-called "safe haven" laws that ignore all of these factors and raise serious constitutional questions by permitting troubled mothers act anonymously when they leave their babies in safe places.

Keywords: Unmarried fathers, Paternity, Adoption, Putative Fathers, Baby Moses Laws, Safe Haven Laws, Child Abandonment, "Thwarted Father", "Pop-up Pop"