What Rights Does an Unwed Biological Father Have When a Mother Wants to Give up a Child for Adoption?

By: Jeanne M. Hannah, J.D.

Copyright © 2006 Jeanne M. Hannah. All rights reserved.

Jeanne M. Hannah is a family law lawyer located in Traverse City, Michigan, who handles divorce, child custody, paternity, adoption, neglect, and other family law matters, and who assists fathers and mothers to exercise their rights to custody and parenting time.


A Michigan attorney recently opined that a biological mother has the right to do anything she wants to do with a child regardless of a biological father’s wishes. While I certainly respect this attorney's right to express his opinion on moral issues, I strongly disagree with the opinions he has expressed on legal issues.


It is true that the law provides that a mother can terminate her pregnancy without the father’s consent. It is not true that a mother can give a child up for adoption without the biological father's consent and/or that she can avoid the biological father exercising any rights unless she chooses to keep the child. A father’s parental rights are substantial and are protected under the Due Process clauses of both the Michigan and the United States Constitutions.


Now I'm up here on my "constitutional highhorse" and my goal is to define what legal rights a father has to a child if he is not married to the mother. This discussion does not include a situation where the mother is married to another man during either conception or birth. That situation raises even more complicated issues that were discussed on this blog in April 2005. [You can see Numerick v Krull, decided by the Michigan Court of Appeals on February 15, 2005, Docket No. 249172 for the state of Michigan law.]


The issues involving an unmarried mother and an unmarried father are many and are complicated. But Michigan’s Adoption Code clearly requires notice and hearing must be provided to a putative father before his parental rights may be terminated to permit adoption of a child. If his consent to an adoption is not obtained and where a mother refuses to provide the identity of the biological father to a court, an adoption may later be subject to challenge provided that the father is subsequently able to learn that the child has been given up for adoption without his knowledge and consent.


Most adoptive parents would prefer to avoid the uncertainty of a later challenge to an adoption by making sure that a biological father’s identity is known and that his consent is given or that his parental rights are otherwise legally terminated.

How a Biological Father Can Protect his Parent-Child Relationship


Because there are ways that a father’s parental rights can be terminated, a biological father must act quickly and capably to protect those rights. There are some hazards a putative father faces in a case where the mother does not wish to keep the child, prefers to give the child up for adoption, and attempts to frustrate a father’s desire to raise the child. In order to protect his constitutional right to parent his child, a putative father needs to do several things:


Support and Care Relationship


It is very important that a biological father act prior to birth of a child to establish a financial (support) relationship. He can do this in several ways. He can financially, and within his means, provide support and care to the mother during the pregnancy. If the support is refused, the father needs to establish an evidentiary trail that he offered the support and that it was refused. He can establish a savings account and deposit into it funds prior to the child’s birth and afterwards if the mother continues to refuse support.


After the child’s birth, the father needs to make every effort to establish a custodial (parenting time) relationship with the child and also to establish a financial (support) relationship. The Michigan Adoption Code requires that he provide “regular and substantial” support.

Notice of Intent to Claim Paternity


Prior to the birth of the child, a putative father may file a Notice of Intent to Claim Paternity with the court in any county of Michigan. The mother will be notified of the filing of this notice. On the next business day after receipt of the notice the statute requires the court to transmit the notice to the vital records division of the department of public health, thus if the child is born in a Michigan hospital, Michigan courts will get notification of the father’s identity. The notice is admissible in a paternity proceeding, but is rebuttable. [A father might choose to have DNA testing after the child is born.] A putative father filing such a notice is entitled to notice of any hearing in a Michigan Court where parties seek to terminate his parental rights so that an adoption can go forward. See Section 33 of Michigan’s Adoption Code.

A Complaint for Paternity


Prior to the birth of the child, a putative father may file an action under Michigan’s Paternity Act. See Section 4, MCL 722.714(3).


            Regular and Substantial Care


As mentioned above, prior to the birth of the child, it is important for a putative father to provide regular and substantial care and support to the mother, to the extent he is permitted to do so and to the extent that he is capable of providing it.  After the birth of the child, it is important for a putative father to provide regular and substantial care and support to the child, to the extent he is permitted to do so and to the extent that he is capable of providing it.  If the mother refuses his offers of support, he needs to establish a savings account into which he deposits funds regularly.


        Then, if the mother tries to force an adoption in a Michigan court, the father will have the right to object. (This assumes, of course, that he’s given notice.) To avoid termination of a putative father’s rights under the Adoption Code, he need only prove that either (a) he has established an custodial relationship with the child or (b) he provided regular and substantial support for the mother or child prior to receiving a notice of hearing on a petition to adopt. If he can prove only one of those things, then he can avoid termination of his parental rights. See Section 39 of Michigan’s Adoption Code.


        The importance of providing regular and substantial care and support cannot be over-emphasized, for this is what protects the parent-child relationship. There is a distinction between an established relationship between a parent and a child and the existence of a biological link, with the latter entitled to less constitutional protection than the former. Lehr v Robertson, 463 U.S. 248, 261, 266-268; 103 S. Ct. 2985; 77 L. Ed. 2d 614 (1983). In In re TMK, 242 Mich App 302 (2000) Michigan’s court of appeals stated that “[w]here a father has never established a ‘custodial, personal, or financial relationship’ with a child, or has abandoned a child, he does not possess the fundamental right of parenthood,” citing Lehr, supra, 463 U.S. at 267-268.


Protection of the Parent-Child Relationship by the Constitution


The importance of establishing a financial and/or a custodial relationship with the child was described in the Lehr case decided in 1983 by the U.S. Supreme Court establishing the legal principle that a natural father who fails promptly to assert his “opportunity interest” in developing a relationship with his child may forever lose that interest. As the Lehr Court stated:


When an unwed father demonstrates a full commitment to the responsibilities of parenthood by “coming forward to participate in the rearing of his child”…his interest in personal contact with his child acquires substantial protection under the Due Process Clause. At that point it may be said that he act(s) as a father toward his children.

The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development.


463 U.S. at 261-62, 103 S. Ct. at 2993, 77 L. Ed. 2d at 626-27, quoting Caban v. Mohammed, 441 U.S. at 392, 389 n.7, 99 S. Ct. at 1768, 1766 n.7, 60 L. Ed. 2d at 307, 305 n.7


Michigan Cases Reflecting on the Protection of the Parent-Child Relationship


See In Re Lang, 236 Mich App 129 (1999). If a child is born out of wedlock and the biological father does not voluntarily release his parental rights or consent to adoption, the child may not be placed for adoption until the father's parental rights are terminated by the court as provided in the Adoption Code sec. 37 or 39, Mich. Comp. Laws 710.37 or M.C.L. 710.39, or as provided under chapter XIIA of the Juvenile Code. Mich. Comp. Laws sec.710.31(1)


Among the Michigan cases that need to be reviewed on the issues of “substantial support and care” and a “custodial relationship” are In re Barlow, 404 Mich. 216 (1978) and In re TMK, 242 Mich App 302 (2000). In re TMK involves a father who claimed that the mother had deceived him about her pregnancy and that, as a result, he had not provided support and care according to the Adoption Code and he had been prevented by the mother and the prospective adoptive parents from forming a custodial relationship. I recall a heated discussion in the Family Law Counsel about this time, the gist of which was that if a man had sex with a woman without using contraceptive protection, he ought to be checking back now and then to see if she were pregnant rather than claiming months after a birth that she had deceived him.  The court of appeals held that the legislature did not intend to create a "deceived father" exception to the requirement that the father provide substantial and regular care and support to the mother during pregnancy in order to come within the protection afforded to fathers in section 39(2) of the Adoption Code.


See also In re Gaipa, 219 Mich App 80 (1996).


            Interference with a Parent’s Right to Parent his Child


The Michigan attorney's discussion began in response to a query about a mother wanting to leave Michigan, have the child in another state, and give the child up for adoption. Certainly, such a situation would pose serious threats to a father's rights to establish and preserve his parental right.


About the mother’s threat to leave the State so that the child is born in another state:

Many of us remember the “Baby Jessica” case. DeBoer v. Schmidt, 442 Mich. 648, 502 N.W.2d 649 (1993). Adoptions can be set aside or frustrated where proper notice to the biological father and consent of the father is not obtained.

Some cases occurring in other jurisdictions give us some insight into the machinations that can occur to frustrate a putative father’s rights to form a parent-child relationship.


In one of these cases, an adoption was set aside because the mother and the adoptive parents sought to obtain the adoption order without the consent of the putative father. In the Matter of Baby Girl L., 2002 OK 9; 2002 Okla. LEXIS 10; 73 O.B.A.J. 546 (2002).


Other cases protecting a father’s parent-child relationship:


In California, once the mother consents to adoption, a presumed father can block the adoption even if adoption is in the child's best interest; a merely biological father cannot block the adoption - and, indeed, his parental rights will be terminated - unless he can show adoption is not in the child's best interest. (Cal. Fam. Code, sec.7662, 7664, subd. (b), 8604, subd. (a), 8605; Adoption of Michael H. (1995) 10 Cal.4th 1043, 1050-1052, cert. den. sub nom. Mark K. v. John S. (1996) 516 U.S. 1176 [116 S.Ct. 1272, 134 L.Ed.2d 219]. 


Custody to Father Despite Mother’s Objections:


"[T]he courts have the authority . . . to grant custody to the natural father despite the mother's objection. In the present case, the superior court had the authority to grant petitioner custody of his child so that he could qualify as a presumed father . . . ." Adoption of Kelsey S., 1 Cal.4th 816, 823-825 (1992).


A Father Who Did Not Pay Attention was Denied Parental Rights

To illustrate the danger to a putative father of sitting on his rights, consider this decision by a  New York court. It refused to set aside an adoption where a putative father had not seized his “opportunity interest” to form a support and custodial relationship with the child. The unwed father tried to vacate a final order approving the adoption of his son. He contended that the mother or the State had a duty to ensure he knew of the birth and that their failure to do so denied him his constitutional rights. The court denied his request, saying that “[i]nasmuch as petitioner failed to take any steps to discover the pregnancy or the birth of the child before first asserting his parental interest 10 months after the adoption became final, we conclude he was neither entitled to notice nor was his consent to the adoption required.” In the Matter of Robert O., 80 N.Y.2d 254, 604 N.E.2d 99, 590 N.Y.S.2d 37 (1992). See also In re Raquel Marie X. , 559 N.E. 2d 428 (N.Y. 1990). In re Adoption of Baby Girl S , 535 N.Y.S.2d 676 (1988). Both of these cases are decided on the same rationale as In re TMK, supra.

Interference by Mother and Her Parents Found Cause for Damages

Interference by a mother and/or her family has resulted in some significant financial consequences. In the first case, a jury's award of money to a father was overturned on a technical issue. In the second case, the father was awarded millions of dollars.

In Smith v Maloof, 722 So.2d 490 (Miss. 1998), the mother and her parents conspired to deprive a father of his parental rights. This case was fought in Mississippi.

In August 1991, Joe W. Smith, Jr. (Joey) and Natalie Cash Malouf (Natalie) were in a dating relationship, and Natalie became pregnant. Against Joey's wishes, Natalie decided to give the child up for adoption. Natalie then moved away, allegedly to hide from Joey while she was pregnant. Three months before the child was born, on January 14, 1992, Joey initiated legal proceedings against Natalie in the Leflore County Chancery Court seeking a declaration of paternity, order for custody of the child and injunctive relief to stop adoption proceedings within and outside Mississippi. On March 12, 1992, Joey also filed for a temporary restraining order to enjoin the commencement of adoption proceedings. On March 27, 1992, the chancellor issued a permanent injunction in the form of a final judgment which enjoined Natalie and "all who might assist her" from proceeding with an adoption.


On April 21, 1992, the child was born in Marietta, Georgia, then taken to California. From there, the child was adopted by Canadian citizens. On June 16, 1992, Joey and his parents filed suit in the Circuit Court of Leflore County against Natalie and her parents, Alex J. Malouf, Jr. and Patricia Malouf, for intentional infliction of emotional distress, conspiring to prevent Joey from exercising his parental rights and conspiring to effect illegal adoption of a child born out of wedlock. In September 1992, the Maloufs filed a motion to dismiss the complaint under M.R.C.P. 12(b)(6), which was granted by the circuit court in October 1992. Joey appealed that decision to this Court in November 1992.


The Supreme Court of Mississippi upheld Joey’s cause of action for intentional inflictions of emotional distress. Smith v. Malouf, 722 So. 2d 490 (Miss. 1998). 


Ultimately, however, the father’s case was dismissed on a technicality having nothing to do with his efforts to establish a custodial or support relationship with the child. http://www.mslawyer.com/mssc/cases/20020822/0000465.html

Millions of Dollars in Damages Awarded for Intentional Infliction of Emotional Distress and

Interfering with the Right of a Father:

In Kessell v Leavitt, 204 W. Va. 95; 511 S.E.2d 720 (W.Va. 1998),  a putative father who took every opportunity to establish relationship with child, i.e. offered to marry mother, offered to support child financially and otherwise, filed petition to establish paternity, offered to adopt child, obtained injunction to block other adoption with copies to Vital Statistics offices in all states, hired investigator to track mother who moved cross country, but who failed to prevent adoption of child by Canadian couple, held to have established claim against mother and her parents for intentional infliction of emotional distress and conspiracy to prevent him from establishing relationship with child. Court held that putative father who has worked to establish substantial and meaningful relationship with child has constitutionally protected right to be notified of adoption proceedings and to withhold consent to adoption.

This case was remanded to the trial court to determine the amount of damages owed by the mother and her parents to the father for interfering with his right to attempt to gain custody of the child by exercising her own right to terminate her relationship with the child, i.e., damages for intentional infliction of emotional distress.

In this case, following the Canadian adoption of the mother's and father's biological child without the father's knowledge or consent, the father brought an action alleging that the mother, the maternal grandparents, the uncle, and the mother's attorney acted fraudulently and tortiously interfered with the father's parental rights. The jury further awarded the father compensatory damages of $ 2 million and punitive damages of $ 5.85 million. On appeal, the court held that: (1) the father sufficiently stated a cause of action for fraud by averring that the mother, maternal grandparents, uncle, and the mother's attorney intentionally, purposefully, and maliciously prevented the father from obtaining any pertinent information regarding the child's birth or subsequent pre-adoptive placement and that they continued a scheme to impair and frustrate the father's efforts to ascertain the whereabouts of his son; and (2) the father sufficiently stated a cause of action that the maternal grandparents, uncle, and the mother's attorney tortiously interfered with his parental or custodial relationship with his minor child but that such a claim could not be maintained against the mother because both parents were equally entitled to establish or maintain a parental or custodial relationship with their child.


A man who fathers a child must be constantly vigilant if he wants to protect his parent-child relationship. Ultimately, it is the strength of his financial (support) relationship and/or his custodial parent-child relationship that will enable him to protect his parental rights. If he neglects both of them, he will lose a case where the mother of the child wants to give the child up for adoption.


Related Articles:

How can a man protect his paternity rights if the mother wants to place the child for adoption?


What are the Rights of a Biological Father if the Mother is Married to Another Man?



Jeanne M. Hannah welcomes you to contact her regarding any family law lawyer issue, including, but not limited to divorce, child custody and parenting time, child and spousal support, property settlement, pre-nuptial and post-nuptial agreements, paternity, adoption, neglect, and other family law matters. You can contact Ms. Hannah by telephone, E-mail, fax, or at the address listed above.

Jeanne M. Hannah, a family lawyer located in Traverse City, Michigan, represents clients in Grand Traverse County, Benzie County, Leelanau County, Kalkaska County, Antrim County, Emmet County, and other selected counties throughout Michigan.  Copyright © 2005 [Jeanne M. Hannah]. All rights reserved. Revised: 11/11/09

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Jeanne M. Hannah, Family Lawyer
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