The main point, of course, is that even if safe haven relinquishment raised a presumption of abandonment, or a presumption of lack of caring due to a lack of knowledge, that presumption is not one a mother or a safe haven administrator can adjudicate or ultimately act upon outside a court of law. Only a court can make such a finding. And only a court of law can order an adoption. Courts do that only after finding due process was afforded the father and that the evidence supported termination of his parental rights. The U.S. Supreme Court and the courts in all fifty states have been consistent on that. Doing nothing to determine the identity of the father except ask the mother for his name, or allowing the father to remain “in the dark” does not satisfy due process. And a mother’s competing right to privacy in the adoption context does not necessarily mean she can remain unidentifiable. Nor is it the mother’s decision whether to turn a baby over to the father. In contested adoptions or paternity suits, courts decide that. And a relative or friend who fears for the child’s safety and is given the child by the mother for safe haven relinquishment would do better to take the child to their state’s Children’s Services Department. The child would still be saved--and in a far more responsible way.
Courts have recognized abandonment per se, or more correctly “prima facie evidence” of abandonment, when putative fathers have not signed their state putative father registries as dictated by statute. In his earlier article, Pierce argued that the cure for not affording biological fathers’ their due process rights lay in enacting putative father registries, and that anything beyond consulting putative father registries for notifying birth fathers denied women's’ basic rights as evidenced by the overturned “Scarlet Letter” law in Florida. The logical folly and legal invalidity of that belief is easily shown.
The belief that enacting putative father registries would satisfy due process
Adoption law recognizes two main classes of fathers, “putative” and “presumed.” Putative fathers are alleged, unwed fathers who have not legally established their paternity. Presumed fathers are men who were married to the mother at the time of the birth or pregnancy, or unwed men who legally established their paternity before an adoption petition was filed. Both types of fathers are entitled to notice of an adoption proceeding involving their potential child and, upon notice, the right to be heard about their fitness.
To ensure notice to putative fathers, some states have enacted putative father registries. The registries let adoption petitioners find putative fathers without having to rely on the mothers naming them. Essentially, putative fathers ensure their own notice by signing the registry. But five major problems emerge when using putative father registries to locate fathers of children relinquished to safe havens.
Problem #1: Putative father registries are inherently flawed
First, because most state registries are poorly advertised, most men do not know about them. The common man is probably more aware of his state’s safe haven than of his state’s putative father registry. Signing the registry can also be problematic. A father may not know the date of the birth, thus not know the deadline for registering. It may then take several days for him to locate, receive, notarize, and return the filled-out forms. Moreover, adoption agencies or mothers can defeat registration by placing or taking the child out of state. Lastly, many putative father registry statutes require men sign the registries even when they lack knowledge of the pregnancy. This means a man must either “investigate” potential pregnancies or sign the registry every time he has sex with a new partner. The U.S. Supreme Court has yet to rule on these arguably unrealistic requirements. The Supreme Court has reviewed only one case involving a putative father registry. Having concluded that the unwed father knew of the pregnancy and of the child, the court held that the father could have ensured his own notice by signing his state’s putative father registry. Thus, different state statutory schemes could still be found wholly or partially unconstitutional.
Problem #2: One cannot force states to enact putative father registries
Only about half of the states have putative father registries. Some states have already rejected putative father registry bills. It is unlikely those states will later enact putative father registries just to suit safe havens. Such application would also raise equal protection concerns in that putative fathers whose children were relinquished through safe havens would, by law, be treated differently than putative fathers whose children were placed through typical adoptions.
