Father by Newspaper Ad: The Impact of In Re the Adoption of a Minor Child on the Definition of Fatherhood

Abstract

I. INTRODUCTION Under the ice I see fire, and warn you to beware lest it prove a volcano. (1) The definition of fatherhood in the United States has become unclear. It has become politicized, and both law and society are unsure what it currently means. (2) In the past, fatherhood was the method of attaching children to fathers, in order to care for the children. (3) Today, as alternatives to the traditional nuclear family appear, family law is not always equipped to deal with new familial situations. One example is the rights of the unknown father when the mother wants to give the child up for adoption. The question is: when does the father of an illegitimate child have the right to know that the child is being placed for adoption? The United States Supreme Court and a now overturned and amended law in Florida had very different definitions of a father's rights in this situation. Their determinations of a father's rights turned on whether the man must demonstrate his commitment to being a parent or whether the sexual activity that results in pregnancy is enough. This paper will argue that the Supreme Court and the Florida legislature in 2001 had different definitions of fatherhood. It will also discuss the reasons why future legislatures or political leaders considering this issue should reject the Florida legislature's 2001 definition. The rights and responsibilities of an unwed father have changed dramatically over the past 300 years. The United States Supreme Court, beginning with Stanley v. Illinois, found that some unwed fathers were entitled to notice when their children were placed for adoption. (4) The Supreme Court requires biology plus, whereby the father has to demonstrate some commitment to parenting. In subsequent cases, the Court has attempted to define what a demonstration of commitment to parenting means. Currently, this includes registering with a state's putative father registry. (5) In 2001, the Florida state legislature made changes to its adoption law. I will argue that this definition can be described as biology only. The law required notice to the other parent of a petition to terminate parental rights prior to an adoption proceeding. For fathers who were unknown or whose locations were unknown, service by publication of the proceeding was required before the fathers' rights could be terminated. The required publication was notice in the newspaper, including the name and description of the mother, the name and date of birth of the child, a description of the person reasonably believed to be the father, and the location of where the mother believed conception occurred. (6) A suit brought in Florida state court sought a declaratory statement that the requirement of notice by publication infringed on the mother's right to privacy. The judge found that the mother's right to privacy was invaded by the requirements only in cases of rape resulting in pregnancy. (7) However, a higher Florida court overturned this ruling, finding that in all instances the law invaded a mother's right to privacy. (8) Finally, the Florida legislature amended the defunct law, creating a putative father registry as a replacement. (9) This paper will discuss the law the Florida legislature adopted in 2001 and examine its definition of fatherhood as compared to the definition attempted by the Supreme Court and the consequences of each. Part II presents In re The Adoption of a Minor Child at the trial and appellate levels, Florida's definition of the illegitimate father, and the establishment of Florida's putative father registry. Part III presents the historical development of the illegitimate father in the United States. With this background in place, Part IV presents the Supreme Court's definition of the illegitimate father. Part V examines the differences between the two definitions and the consequences of each. Part VI presents a brief discussion of the Father's Rights Movement and the role it may have played in the Florida law. …