Unmarried Fathers and Adoption: 'Perfecting' or 'Abandoning' an Opportunity Interest

66 Pages Posted: 2 Jun 2008

See all articles by Laura E. Oren

Laura E. Oren

University of Houston Law Center


In a line of cases culminating in Lehr v. Robertson, the United States Supreme Court recognized a constitutionally protected relationship between unmarried fathers who met a "biology plus" standard and their children. The biology plus cases, however, have not answered all the questions that they raised about how an unmarried father may perfect, or conversely abandon, his constitutionally protected opportunity interest. Without much guidance, the different jurisdictions of our legal system have embraced a bewildering array of procedures that are designed to balance the interests of putative fathers with the needs of others involved in the adoption process (children, biological mothers, adoptive parents). These measures are typically much less rigorous than those required to terminate the rights of constitutionally-deemed "parents." Moreover, these approaches have not been tested by the post-Lehr Court, especially insofar as they apply to a newborn or very young infant.

The putative father registry is the chief but not the exclusive vehicle chosen by the states in order to make summary distinctions among fathers of newborn or very young children. (I call these distinctions "advanced Lehr line-drawing.") The details of notice and consent, and about the effect of failing to comply, differ from jurisdiction to jurisdiction. In some cases, a man is held to have "abandoned" his child (or his opportunity interest in developing a constitutionally protected relationship to his child) if he fails to do a number of things, including sometimes registration. By contrast, the substantive and procedural protections applicable when a parent is charged with "abandonment" sufficient to justify termination of established parental rights are quite different. While the legal distinctions between putative and "real" parents will no doubt hold up to constitutional challenge in general, there is a further issue that might be relevant. All putative fathers are not similarly situated -- some are easily identified and some are not. Arguably, it may be constitutionally required to give an identifiable father actual notice of what he must do to ripen his opportunity interest into a constitutionally protected relationship with his newborn or very young child. On the other hand, a man who receives reasonable notice but fails to take affirmative steps in response, impliedly waives or abandons his chance to perfect his opportunity interest and the Constitution will not dictate a different result.

Keywords: Putative Father, Putative Father Registry, Unmarried Fathers, Biology Plus, Adoption

Suggested Citation

Oren, Laura E., Unmarried Fathers and Adoption: 'Perfecting' or 'Abandoning' an Opportunity Interest. Capital University Law Review, Vol. 36, 2008, U of Houston Law Center No. 2008-A-17, Available at SSRN: https://ssrn.com/abstract=1138830

Laura E. Oren (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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