Response to Soule Editorial

The NYS Citizens' Coalition for Children asks us to share widely a 1991 New York newspaper editorial response by Dave and Peggy Soule: It Takes More Than Sex to be a Dad. The Soules opined on how the law should treat men who claim they lacked knowledge of the pregnancy. In sum:

"It's [the man's] responsibility to show that he took steps to find out if he created a child, and to parent that child. He should show that he tried to contact the woman to see if she was pregnant. He should have registered his intent to claim the child with the state's Putative Father Registry. He should have filed his paternity case immediately, since he can do so as soon as a child is conceived."

That view is shortsighted and propagandistic. Feel free to share the following widely:

Because pregnancy is a uniquely feminine experience, women are in a superior position to determine their parenthood. Women are also entitled to privacy while pregnant. Accordingly, courts have consistently concluded that men must have knowledge beyond a mere sexual act before they can be required to swear paternity, and that the duty to inquire with the woman depends on all the circumstances.

For example, in Matter of Robert O v. Russell K., (N.Y. 1992)¹ the mother and father separated without the father knowing of the pregnancy. The father knew the mother's location throughout the pregnancy, but neither contacted her nor filed with New York's putative father registry. The mother told the father about the child for the first time ten months after the adoption was ordered. The New York law in question was the same law in effect at the time of the Soule's editorial. A putative father could qualify for notice of an adoption proceeding by either: having been adjudicated as the father, filing a timely notice of intent to claim paternity, living openly with the mother and child, having been named the father in a sworn statement by the mother, having married the mother after the birth, or by filing with the putative father registry.²

The Court declared that those requirements did not apply to a man who did not know he had a child. The court therefore judged the case not on the father's failure to follow the law, but on all of the facts leading to his ignorance. The court upheld the adoption because of a combination of three facts: the father took no steps to discover the pregnancy, was not in any way prevented from doing so, and the adoption had been final for ten months.³ Under those facts, the father had not acted promptly enough.

In Paternity of Baby Doe v. Maple,⁴ the father claimed that his lack of knowledge of the pregnancy made it impossible for him to enter the Indiana putative father register timely. The court rejected the argument, not as a matter of law, but because the father had allegedly received adoption documents from a mutual friend,⁵ had seen the mother during the pregnancy,⁶ was never impeded from inquiring with the mother, and had not acted early enough in the child's life.⁷

In both of the above cases, had the mothers informed the fathers earlier, or concealed their pregnancies from the fathers, the courts would probably have ruled differently Consider the following cases.

In Matter of Adoption of Child by R.,⁸ the unwed father first learned of the pregnancy and birth when the child was nine months old. New Jersey law presumed abandonment where the parent had not performed parental functions for six months. The father had never inquired with the mother and was past the six-month deadline. After weighing testimony from numerous witnesses, the trial court concluded that the father never had actual or constructive knowledge of the pregnancy and therefore did not shirk his duty. The New Jersey Supreme Court agreed, concluding that the father's actions had to be judged from when he gained sufficient knowledge of his parenthood.

"We do not reject the concept that pre-birth conduct may be utilized in scrutinizing a parent's conduct. We simply determine that it is irrelevant in those situations where, as here, the natural father is found by credible evidence in the record to not have actually or constructively known of either the pregnancy or birth of his child prior to learning of that fact before the finalization of the adoption of the child."⁹

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¹ 590 N.Y.S.2d 37, 604 N.E.2d99 (1992).

² Id., citing Domestic Relations Law 111-a(2).

³ Id. at 100 and 103-104.

⁴ 734 N.E.2d 281 (Ind.App. 2000).

⁵ Id.{/i] at 283.

⁶ Id. at 284.

⁷ Id. at 287.

⁸ 705 A.2d 1233 (N.J.Super.A.D 1998).

⁹ Id. 1239.