The Atlantic Swings at Putative Father Registries: Foul Ball!

April 24, 2014 by Robert Franklin, Esq.

Amazing. The Atlantic has taken on the subject of Putative Father Registries and done so in a fairly honest and balanced way. The article’s writer, Kevin Maillard, is a professor of family law at Syracuse University Law School, so you’d think he’d know a bit more about his topic than he lets on, but, by the standards of the mainstream news media, this article isn’t bad (The Atlantic, 4/21/14).

But there’s a problem with “balance” when dealing with an unbalanced topic. To pretend that there’s an upside to an issue that is anti-father, anti-child and that only benefits the finances of the adoption industry is absurd. Maybe The Atlantic could find something positive about a cholera epidemic to, you know, balance out the negativity.

Putative father registries exist to facilitate adoptions. They’re the darlings of the adoption industry because they tend to remove that pesky need for notifying fathers when their children are being adopted. Remove fathers from the process and adoption is basically slam-dunk. After all, if the mother didn’t want the child adopted, there’d be no adoption in the works, and whether the father agreed or not would never come up.

But when Mom does want the child adopted, the requirement that the father agree for his rights to be terminated before the adoption can go through, can sometimes stop the whole process. Sometimes, fathers want to keep the child themselves and, when that happens, everyone except him and the child ends up unhappy. Mom’s wish wasn’t granted, the adoptive parents have to look elsewhere and the adoption agency doesn’t get paid.

So back in the 1970s, the adoption industry came up with a handy-dandy idea to simply obviate the whole issue of fathers. The industry solution was to put the onus on single fathers to, in some way, know about a pregnancy, know about the state’s putative father registry and file the appropriate form within the time required by law. That looked like a pretty effective tool to oil the wheels of the adoption machine, but states actually made it even more so. Virtually without exception, they’ve never made the slightest effort to let anyone know (a) that registries exist, (b) what the consequences of non-registration are, (c) how to register or (d) when.

Years ago, I did an informal poll of men in Houston. I handed cards to each of 100 men walking into and out of office buildings downtown and at the University of Houston. Each card had the single question “Have you ever heard of the Texas Paternity Registry? Yes. No. Circle one.” Every man circled “no.” That’s not a highly scientific survey, but its results were backed up by the fact that, compared with over 120,000 children born to single mothers in the state that year, only 96 single men filed the requisite form with the Registry.

The fact was that Texas registry was a closely guarded secret. No money was budgeted to publicize the registry or to educate men about it. And, despite a statutory requirement that forms to register be kept at a variety of public locations, like Justice of the Peace offices, hospitals, adoption agencies and the like, my diligent search for a form turned up nothing. When I asked for a form, administrative personnel at locations that were required by law to have them had no idea of what I was talking about.

As Maillard points out, that’s not unusual.

But this system has some big flaws. For one thing, it’s relatively unknown. In Florida, only 47 people registered in 2004, but there were 90,000 nonmarital babies born. And even for the few people who seem to be aware of their right to register, the process can be hard to navigate. Some states require men to indicate their partners’ height, weight, social security number, and more. You had a one-night stand? Don’t wait three days to call—better to register, and quick. New relationship? Verify her identity and get a social security number.

That’s right, even in the unlikely event a single father happens to know about the state’s registry, knows the need to sign up, knows where to do so, when and how, there’s no way he’s protected his parental rights. No, he has to know enough about his one-night stand to satisfy some bureaucrat in the state capital that she is who he says she is. How about that guys? Is getting her social security number something you usually do with a passing flame?

But even if he’s managed to jump through all those hoops, he’s still not home free. After all, if he and Ms. Not-so-right have sex in Texas and he registers there, all she has to do is go to another state to have the baby and place it for adoption. As we know, Utah is an excellent place to do just that, as countless mothers have proven over the years. But whatever state she chooses, none of them require state officials to check the registries of other states, just theirs.

Maillard quotes the excellent Michael Higdon on the subject:

As Michael Higdon, a law professor at the University of Tennessee has argued, the burdens of registering are rooted in suspicion and mistrust. ‘Lest the mother get out of his sight,” he writes, “nonmarital fathers are being sent the message…to keep tabs on where she is at all times.”

He’s right. First, the whole concept on which putative father registries are based is that single fathers don’t care about their kids. That justification has been proven wrong time and again, but, as I stated earlier, where there’s money to be made, pretty much any excuse will do. And the idea of the callousness and cowardice of fathers, particularly single ones, is by now so well accepted that few pause to question it. Maillard gets the point.

States also presume that most unmarried men don’t want children. Men who impregnate women outside of marriage are caricatured: lazy, irresponsible, careless, oversexed.

Where Maillard goes off the rails is his effort at “balance.” According to him, yes, the system of putative father registries has severe flaws, but there are legitimate reasons for it.

Some may see the registry as a way of forcing a pregnant mother to maintain an unwanted connection with past partners.

To which the only sensible reaction is “Huh?” No, registries accomplish exactly the opposite. They make it easier on mothers to avoid contact with fathers they choose not to. The system of law they replaced usually required a showing that the father had “abandoned” his child. Failure to do so meant his rights were firmly in place, and many mothers couldn’t carry that legal burden. Putative father registries work on behalf of fathers only if they know about them, which only a vanishingly small number do.

She may withhold information for reasons of safety and well-being: domestic violence, mental distress, or financial pressures. She could have become pregnant from a sexual assault or experience regret about an unwanted pregnancy. She might also disagree with the father about her reproductive choices to terminate the pregnancy or place the child with another family. Privileging the mother’s rights over the father’s recognizes her right to bodily autonomy.

All true. And if the power of mothers to control the rights of fathers is one’s only concern, then the registries make perfect sense. Maillard’s paragraph fairly screams the fact. Does it occur to him that, if a father successfully challenges an adoption and gains custody of his child, it’s no concern of the mother at all? She need have no contact with him or the child with whom she clearly doesn’t desire contact. And surely Maillard can figure out that, if she aborts the fetus, adoption never becomes an issue.

To say that putative father registries “recognize her right to bodily autonomy” is just stupid. They do no such thing and no one – not courts, not legislatures – has ever made the claim. Face it, Prof. Maillard, putative father registries are about one thing – preventing fathers from receiving notice of the adoption of their children. A woman’s “bodily autonomy” never enters into it.

In the unlikely event that the child was conceived via sexual assault, again, the woman has every right to terminate her pregnancy and the state’s PFR never comes into play. If she decides to have the child and keep it, the PFR never comes into play. The PFR only comes into play if she has the child and places it for adoption, and if he successfully contests the adoption, she again is not involved.

No, as Maillard’s plaint makes clear, the only arguments in favor of registries are those also in favor of mothers controlling fathers’ parental rights. Too bad a family law professor can’t get his mind around that simplest of concepts.

If that one’s too tough for him, here’s another: as we do in every other area of law, we should place the requirement of giving notice on the party with knowledge of the facts. If I want to sell my house, I’m required to disclose latent defects to the buyer. Why? Because I know about them and he/she doesn’t. I have the information and he/she shouldn’t be burdened with trying to figure out what it might be.

The same is true with women’s pregnancies and fathers’ rights. Mothers know when they’re pregnant; fathers, particularly single fathers, don’t always. If fathers are to have meaningful parental rights, mothers should be required by law to provide the information to fathers, as long as they don’t abort the fetus. If they do of course, there’s no real point.

Far too many adoptions in this country don’t need to occur, but they do anyway for two primary reasons. The first is the desire of the adoption industry to make money. No adoption, no money. The second is our culture’s blind need to place fathers’ rights in mothers’ hands. Not surprisingly, the two find common ground in putative father registries.

But in a country in which over 400,000 children in foster care need adoptive parents and only about 50,000 stranger (i.e. not step-parent) adoptions are finalized every year, we don’t need to be forcing adoption on kids who don’t need it. But time and again, that’s what the adoption industry does and PFRs oil the gears.

A just society would have scrapped the things long ago. Ours makes do with a tepid article that apologizes for their use while setting up feminist straw men in their defense. All in all, a pretty sad showing whose chief redeeming quality is that it raises the issue at all.

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