Utah Improves Putative Father’s Rights

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Prior to a recent statutory change, Section 110 of the Utah Adoption Act provided a practitioner with all of the notice requirements in relation to an unwed biological father (or putative father) of a newborn child being placed for adoption. Under section 110, a putative father was entitled to notice of adoption proceedings only if he had, prior to the moment that the birth mother executed a relinquishment of her parental rights to the child or consented to the adoption of the child, either (1) had his name recorded on the birth certificate as the child’s father, with the knowledge and consent of the mother or (2) strictly complied with the following requirements:

  • First, he initiated proceedings in a district court of Utah to establish paternity under Title 78B, Chapter 15, Utah Uniform Parentage Act.
  • Second, he filed a notice of commencement of the proceedings to establish paternity under Title 78B, Chapter 15, Utah Uniform Parentage Act with the office of vital statistics within the Department of Health.

As a matter of course, a practitioner would, just prior to the birth mother’s relinquishment and/or consent, perform two tasks. The first would be to submit a request to the office of vital records for the state of Utah to check the Utah Putative Fathers Registry to verify whether the putative father had filed a notice of commencement of the proceedings to establish paternity. The second task would be to verify that the putative father has not been included on the child’s birth certificate as the father. If a search of the putative father registry indicated that no paternity proceedings had been commenced in relation to the child, and if the child’s birth certificate did not include the putative father as the child’s father, then the parties involved in the placement of the child could move forward with the placement with relative certainty that no notice of the adoption proceedings need to be provided to the putative father.

All of that changed in 2014 with the passage of section 110.5 of the Utah Adoption Code. Effective May 13, 2014, the new statute, Utah Code Ann. § 78B-6-110.5, aims to better preserve a putative father’s right to notice of an adoption proceeding in Utah in cases where the birth mother and the adoptive parents reside out-of-state and the child is six months old or less at the time of placement. Now, if neither the birth mother nor at least one of the adoptive parents has resided in Utah for a total of 90 days or more between the time of conception and the time the birth mother executes her relinquishment, the birth mother is required to file with the court a declaration regarding each potential putative father. The information in the declaration is then used by the court to determine whether the potential putative father has a right to notice of the adoption proceeding.

In the declaration, the birth mother must list each putative father’s personal information, including his name, date of birth, Social Security number and address, if she knows them. She must give details of their relationship, including whether she contacted the potential putative father while in Utah, and if he offered to pay expenses of the pregnancy and birth or child support. The birth mother must also state whether she notified the potential putative father of her pregnancy and that she intended to travel to Utah to place the child for adoption.

The new code section also places a burden on the birth mother to search the putative father registry of the state where she believes the child was conceived and of any state she lived in during pregnancy. She must include with her declaration a certificate or written statement from each state’s putative father registry that a search was made and the results of that search.

After reviewing the birth mother’s declaration, the court will determine whether each potential putative father (1) has done enough to show an interest in the child; (2) has taken steps to preserve his legal rights, including by filing with a state’s putative father registry; or (3) does not know (and doesn’t have a reason to know) that the birth mother and child are in Utah, the mother intended to give birth in Utah, the child was born in Utah, or the mother intended to relinquish her rights in Utah. If the court finds that any of these elements are met, it will order the birth mother to serve a potential putative father notice that she intends to or has relinquished her rights to the child for adoption. These notice requirements would be in addition to any notice requirements set forth in section 110.

Section 78B-6-110.5 helps to preserve the putative father’s right to notice of an adoption proceeding for the sole purpose of enabling him to intervene in the adoption and to present evidence to the court relevant to the best interest of the child. See Utah Code Ann. § 78B-6-110. However, the putative father’s consent to adoption is only required if the birth father fully and strictly complies with the requirements of Utah Code Ann. §§ 78B-6-120 thru 122.

Adoption clients trust their attorneys with issues that may be more important than any others that they might face in their lives and rely on competent counsel to correctly navigate through this delicate area of the law. A mistake or surprise can have heartbreaking consequences. Paul MacArthur

Golf Expert Witness

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