Family Law

Adoption: Do I Need the Birth Father's Consent?

By Kristina Otterstrom, Attorney
Understanding a birth father’s role in adoption.

Do I Need a Birth Father’s Consent If We Never Married?

An unmarried father has the right to establish a relationship with his child. If you know who your child’s father is, you have an obligation to notify him before consenting to place your child for adoption. In one highly publicized Utah case, a mother placed her child for adoption without notifying the child’s father or obtaining his consent. Nearly two years later, the father learned about the adoption and was able to overturn it.

Although a birth mother needs a father’s consent for an adoption, the burden to establish paternity still rests on the child’s biological father. A child’s father must file a paternity action or complete an acknowledgment of paternity with the office of vital statistics when the baby is born. Once paternity has been established, a birth father can seek visitation or custody of a child.

Do I Need Consent If the Birth Father Doesn't Visit the Child?

If a custody order is in place, both parents are required to follow the order’s terms and allow visitation between a birth father and child. Even if the father has refused to establish a relationship with your child, you will still need the father’s consent (or a waiver of consent) before placing your child for adoption.

Specifically, you must provide the birth father (even an absent birth father) notice of an impending adoption. If the father objects and refuses to provide consent, you cannot proceed with the adoption. However, if you provide proof that you’ve notified the child’s father about the adoption, and the father refused or failed to respond within a certain amount of time, a court may allow you to proceed without the father’s consent.

Adoption When One Parent’s Rights Are Terminated

Once a parent’s rights have been terminated, you do not need that parent’s consent to proceed with an adoption. In some cases, you can pursue a termination of parental rights as part of your adoption proceeding, but a judge won’t grant the termination except in extreme circumstances. For example, you can’t seek to terminate your ex’s rights just because you’ve remarried, and your new spouse would make a better father. Instead, a parent will only lose parental rights in cases of severe abuse, neglect, or abandonment and when the termination serves the child’s best interests.

Even if the child’s father is in jail, you will probably need his consent before you can place your child for adoption. Courts take parental rights seriously and usually won’t terminate them without a hearing and clear evidence that doing so would benefit the child.

Questions for Your Attorney

  • I don’t know who my child’s father is, so how can I obtain his consent to an adoption?
  • My ex told me he’s fine with an adoption, but now he’s refusing to sign any paperwork. What can I do?
  • My child’s birth father doesn’t appear on the birth certificate and hasn’t established paternity. Can I proceed with an adoption without his consent?
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