By Adam D. Schmaelzle, Esq.
There are countless reasons why some parents choose to seek adoption services for their children. Whether those children have been born or are expected to be born in the near future, parents have the option of choosing a different future for their child by placing him/her with a foster family or adoption services. One could imagine how unspeakably difficult this decision could be for an expectant couple, but as the old saying goes…it takes two to tango. What I mean is this; once a couple decides to give their child up for adoption, the court requires written consent from that child’s lawful parents. If the child is over twelve years old, his/her consent (and his/her spouse’s consent, if any) is also required. For the purposes of this article, I will only be referring to situations where a child is a newborn or in utero.
The purpose of the consent is to waive all legal rights of the child’s birth parents regarding custody, guardianship, adoption or any other related issue. Now, if a child is born out of wedlock, and the child’s father is out of the picture, meaning no one has acknowledged paternity in accordance with M.G.L c. 209(c) or has been adjudicated the father, then the mother is required to provide a sworn written statement in front of a notary and two witnesses stating who the father is and what his current or last known address is. The statement is then used to notify the father of the situation.
What if the father is unknown? The court requires that all reasonable efforts be made to locate the child’s birth father. If it is believed that the father is somewhere outside of the Commonwealth, or unknown, but inside the Commonwealth, the court will likely order notice by newspaper publication for three weeks in whichever newspaper the court orders.
But consider the following hypothetical situation: mother and father are expecting a child sometime within the next three months. The two have a falling out and mother decides to break off communication with father. Father is unable to contact mother, and subsequently she decides that she wants her child to grow up in a Christian home with a married couple in their late thirties. At this point, father knows that mother is staying with her grandparents but has been excluded from any further information regarding the pregnancy, including a due date. One day, father checks his voicemail, only to discover that mother has left him a message informing him that she wishes to give the child up for adoption. Lets suppose father does not want to give up his rights. What are his options?
Well at this point, father is stuck in a pretty tough situation. Hypothetically speaking, mother could give birth to the child, sign the sworn statement and claim that father is unknown with unknown whereabouts. Father does not read the newspaper everyday and therefore, there’s a good chance father might never see any notice that may have been published.
If that child ends up with an adoptive family, father may have the right to appeal the adoption within 120 days of actually being notified. Beyond that, he could unfortunately lose his rights altogether. With that in mind, this situation can be prevented by taking a few appropriate steps to ensure the Commonwealth is aware of (1) who the father is; and (2) that he is asserting his right to fatherhood.
- Send a certified letter to mother (if her whereabouts are known) stating that he wishes to assert his rights and opposes the adoption.
- Private adoptions are disallowed in Massachusetts, therefore any adoption that may take place, will do so through an agency. It would be wise for the father to contact the various adoption agencies and inform them of his situation. The Department of Children and families for instance provides a form, which will constitute acknowledgment or admission of paternity from father. This is known as a “Paternal Responsibility Claim”.
- Unless there is a care and protection case pending, the proper venue for a custody matter is in Probate and Family court (otherwise it would be heard in Juvenile court). As such, father might request a DNA test if paternity is uncertain. To do so, he should fill out a “Child Support Enforcement Intake Form” with the Massachusetts Department of Revenue (DOR), Child Support Division. M.G.L c. 209c §14 allows a paternity action to be filed by DOR during a pregnancy. If the child is still in utero, DNA testing can be done with procedures known as “Chorionic Villus Sampling” or “Amniocentesis”, however these types of tests are invasive and can lead to birth defects. Therefore, DNA testing would likely be ordered after the child is born. *note, there are some new non-invasive DNA testing methods that exist, however the court prefers to do a mouth swab after the child is born.
- Ask the Probate and Family judge for an injunction against mother, preventing her from doing anything in furtherance of adoption. Once the child is born, a DNA test will likely be ordered and paternity will be established. At that point, if mother still wishes to give up her parental rights, father can seek sole legal and physical custody. If mother then changes her mind and decides to keep her child, father can then seek custody, visitation and so on. That is usually the point where child support kicks in as well.
Granted, Mother may believe father is unfit to care for her child, and she has every right to think that way. These situations are carefully reviewed on a case-by-case basis to determine the best interests of the children. If the mother requests a home study, the Department of Children and Families will conduct an investigation and the court will make a determination of whether to sever the father’s parental rights.
Nevertheless, the father will still have the opportunity to demonstrate his parental fitness to the court and preserve those rights. If these steps are taken, at the very least the court should be aware that father exists and is asserting his rights. This should prevent mother from seeking adoption for her child without father’s consent.
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