Putting the Child First in Custody Battles Between Biological Fathers and Adoptive Parents.

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Journal Name
Santa Clara Law Review
Journal Volume
Page Count
Year Published
Author (Individual)
Kaplan, P. K.
Resource Type
Journal Article
This law review describes the adoption cases of legal battles between birth fathers and adoptive parents. The author notes that these cases illustrate the tension in the independent adoption laws among the constitutionally protected rights of birth fathers; the tenuous rights of adoptive parents; and the concept of the "best interest of the child." The law review explores the relationship in California among independent adoption laws, the rights of birth fathers, and considerations of the best interests of the child, as they are contained in the California Family Code and developed in case law. It highlights deficiencies in the current law which fail to serve the best interest of the child, while considering the rights of the child's birth father, and prospective adoptive parents. Many of the recommendations in this law review incorporate the theories and conclusions from studies of a child's attachment to his or her caregiver (attachment theory) and the effect on a developing child of his or her removal from the primary caregiver during infancy. The solutions within this law review intend to benefit all parties concerned, but especially the adopted child. The 5-part proposal includes: providing counseling to the non-placing parent; developing incentives for the birth mother to identify the birth father; amending the Family Code section 88122 (c ) to safeguard the child; following the Guardianship of Michael H. example in protracted adoption cases; and implementing nationwide uniformity in adoption laws. The author notes that by clarifying the law in the ways proposed in the review, adoption will be facilitated rather than curtailed by the threat of protracted custody battles between birth parents and adoptive parents. Numerous references.

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