Seton Hall Legislative Journal
While it is rare that a biological father will appear and contest his child's adoption, just the possibility that this might occur is often enough to dissuade couples and individuals from adopting newborn infants. There has been little progress toward legal reform in this area, with the States left to try on their own to reconcile the Supreme Court's guidance on the issue of biological fathers' rights with their own judgments about the role an unwed father should play in the life of his child. This article begins by analyzing the development of unwed fathers' rights in American adoption law and examining the issues which have made the topic so thorny for both judges and legislators. Three well-publicized cases--Baby Jessica, Baby Richard, and Baby Emily--are used to frame the current issues in this controversy. The extent of the Supreme Court's lack of jurisprudence in this issue has left the States wide latitude in crafting solutions to the dilemma posed by unwed fathers and the adoption of newborns. The various approaches taken by the States in this regard are outlined with respect to consent and notice issues, limitation periods for contesting finalized adoptions, and custody distinctions. The ways in which the Uniform Adoption Act of 1994 sought to clarify and codify the rights of unwed fathers in the three crucial areas of consent to adoption, notice of adoption, and termination of parental rights are examined. The author proposes a detailed legislative solution to the problem of unwed fathers' rights by balancing the interests of biological fathers, adoptive parents, the State, and the child in an equitable fashion. His solution addresses the burden of discovery, consent, parental rights, and the use of a putative fathers registry, as well as curtailing legislation. References.
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