Make Sure the Father Consents

Failure to obtain consent from the biological father has been at the center of some highly publicized adoption cases. In the Illinois case of Baby Richard, for example, the biological mother conceived a child out of wedlock. At the time of Baby Richard’s birth, the biological mother and biological father were not living together. The mother lied to the father and told him that their child had died.

Meanwhile, the mother consented to termination of her parental rights and to adoption of the child. Later, the biological father learned the child was alive, and he sought to undo the adoption and gain custody of Baby Richard. The father filed his claim for custody fifty-seven days after Baby Richard’s birth.

The case dragged through the Illinois courts for years while the child lived with his adoptive parents. When “Baby” Richard was three years old, the Illinois Supreme Court ruled that Richard must be returned to his biological father since the father never consented to the adoption and he contested the adoption within two months of Richard’s birth. The Illinois Supreme Court refused to consider the quality of the child’s relationship with the adoptive parents or what was best for Richard. Instead, the court held the biological father was entitled to custody.

The court’s decision caused an uproar in Illinois. The governor and many legislators objected to the decision. Although feeling some sympathy for the biological father who was deceived about the birth of his son, many people felt the rights of the child and adoptive parents should be paramount. The legislature passed a statute requiring courts to consider the best interest of a child when deciding whether to rescind an adoption. The Illinois Supreme Court refused to apply the statute retroactively to Richard’s case and still ordered that Richard be returned to the biological father.

The case of Baby Richard illustrates the importance of obtaining consent of the biological father in order to help insure the adoption will not be undone. If a father who is not notified of his child’s existence contests the adoption within the time period designated by state law, the adoptive parents might lose custody of the child. Many states are considering laws that would give greater protection to the adoptive parents and to adoptive children who have bonded with their adoptive parents; but in the meantime, some states place more emphasis on the rights of the biological father than the interests of the child or adoptive parents.

Source: In re Petition of Doe, Illinois Supreme Court (1994)