Home > family law general, paternity/child custody > Unmarried Biological Fathers–We have rights, too, right? (Wrong) Part 1

Unmarried Biological Fathers–We have rights, too, right? (Wrong) Part 1

**Note:  This is again a very Utah-specific blog post.  Utah statute is specifically discussed, not the law of other states.  PLEASE BE AWARE that other states have similar laws on the books (though I don’t think many are as draconian or bordering on un-Constitutional as Utah’s), so don’t simply assume that if you’re outside of Utah, you’re out of the woods, so to speak, with the law as it relates to unmarried biological fathers.  You have been warned.

I had mentioned in a previous post that the law regarding unwed fathers, as it is dealt with in the Utah Uniform Parentage Act is pretty rough on the dad, but beyond that, there does exist a body of law regarding what unwed fathers have to do to prevent their children from being adopted out from under them, or simply so the father can have custody and visitation rights to the child.  And you’ll never find it if you don’t know where to look for it specifically.  Adoption, as well as the law regarding biological, unwed fathers, is located here:  http://www.le.utah.gov/UtahCode/section.jsp?code=78B-6.  This is Utah Code Title 78B, Judicial Code, in Chapter 6, Particular Proceedings.  Totally intuitive place to find all this, right?  Uh-huh.  Or not.

Don’t get too attached if you’re not married to his mama….because this may NOT be you, ever.

If you hunt that up, you will find the information regarding biological fathers, in terms of consent for adoption, and whether or not they are even entitled to notice that adoption is taking place, located at UCA 78B-6-120, -121, -122, respectively.  I’m not going to get into the details of all of this, but here’s the important thing to note.  This from the last few lines of -122:

“(2) An unmarried biological father who does not fully and strictly comply with the requirements of Section 78B-6-121 and this section is considered to have waived and surrendered any right in relation to the child, including the right to:
(a) notice of any judicial proceeding in connection with the adoption of the child; and
(b) consent, or refuse to consent, to the adoption of the child.”

Did you get that?  If an unwed father doesn’t not very strictly and quickly hoop-jump on this thing, he loses the right to not only give or refuse to consent to the adoption of his child, but ALSO any right to even be TOLD that his child is going to be adopted by someone else.  That’s a little scary, if you ask me.

There is statute regarding pre-birth notice of adoption of a child being given to the biological father.  It is a long piece of law, located at U.C.A. 78B-6-110.1, but it begins with the following:  “Before the birth of a child, the following individuals may notify a birth father of the child that the mother of the child is considering an adoptive placement…”  (emphasis added).  Did you notice that “may”?  That’s a significant

And don’t even THINK that this will EVER be you if you haven’t sufficiently Hoop-Jumped.

word, right there, because “may” is not the same as “shall.”  “May” equals “you can if you want,” where “shall” equals “you must.”  Because this is only a “may” statute, those individuals that May provide notice also May Not if they so choose.  If one DOES choose to provide notice, the Shall’s kick in–as in “you shall include x information.”  That X information that “shall” be included if the individual chooses to provide notice (again, if they want to, but don’t have to) is some pretty important stuff.  From subpart 5 of this statute:

“(5) If the recipient of the notice described in Subsection (2) does not fully and strictly comply with the requirements of Subsection (4)(c) within 30 days after the day on which he receives the notice, he will lose:
     (a) the ability to assert the right to consent or refuse to consent to an adoption of the child described in the notice;
     (b) the ability to assert the right to contest any future adoption of the child described in the notice; and
     (c) the right to notice of any adoption proceedings relating to the child described in the notice.” (emphasis added)

But again, an individual is not required to provide this notice at all.  And that’s further spelled out, as in, I Am Not Reading Into This Something That Isn’t There, in subpart 6, where it states “If an individual described in Subsection (2) chooses to notify a birth father under this section…” (emphasis added)…The statute is RIGHT THERE stating that this is a choice to notify, and not a requirement.  Which begs the question, Why bother putting this detailed statute in place at all?  I honestly have no answer to that, other than politically it looks pretty to the Father’s Rights lobby if there is a notice statute on the books, even if it IS meaningless in terms of requiring notice to be given prior to a child being put up for adoption.

One last thing before I close up this first Part of the law regarding unwed fathers:  Do not assume that because you have a paternity/custody order from another state that you’re covered.  U.C.A. 78B-6-122.5, titled “Effect of out-of-state paternity adjudication, declaration, or acknowledgment,” tells us that your out of state paternity order doesn’t mean squat in the State of Utah–it’s effectively saying that Utah will NOT give full-faith and credit to an out of state custody order (see US Constitution, Article IV Section 1. Full Faith and Credit) when the subject child of that order is going to be adopted in the state of Utah by someone else.  If that out of state unwed father has not hoop-jumped sufficiently under Utah law, he is S.O.L.–he’s not even entitled to be told that the child is going to be adopted, let alone entitled to give or refuse consent to the adoption.

**Does not apply to you if you are an unwed father…

And now you begin to see just a little of why I believe the Utah law to be bordering on, if not outright un-Constitutional.  More on this later, after I’ve cooled down a bit…

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