We are planning to adopt a baby and have heard stories about birth fathers coming forward at the last minute, to disrupt adoptions. What is the situation if this happens?
As with all questions involving the law, an accurate answer begins with, “it depends.” The first thing it depends on is where the child (and birth father) reside. Different countries, and even different provinces or states, have differing laws and procedures. For the purpose of this response, I will assume all parties live in BC.
Under our Adoption Act, “birth father” is defined as “a child’s biological father” and “birth mother” as “a child’s biological mother.” But there are significant differences in the way these two are treated in the Adoption Act.” For example, the consent of the birth mother is “required for a child’s adoption” or must be dispensed with by a court. Not so, the consent of the birth father. Unless he fits some additional criteria, including admitting paternity, he is not a “father” for the purpose of giving consent.
Our Adoption Act and regulations make provision for a birth fathers’ registry which is maintained by the Adoption Branch in Victoria. Before the Ministry, or an adoption agency, (or a birth mother by “direct placement”) can place a child for adoption, a search must be made of the registry. If a man has registered as the birth father, he must be given notice of the proposed adoption.
There has been some confusion about the effect of the birth fathers’ registry on birth father “rights.” The only “right” the legislation confers on a registering birth father is the right to be notified of a “proposed adoption.” Because the adoption regulations give the birth father up to 150 days after placement to register, there is an illusion that some right to intervene in an adoption was conferred. But, this is not so.
Registration on the birth fathers’ registry, does not prove paternity, nor does it, by itself, make a “birth father” a “father” whose consent to adoption is required. Unless he is “acknowledged by the birth mother as the child’s father,” registration does not make him fit a definition of “father.”
However, adoptive parents cannot finalize the adoption in court, until the child has resided with them for six months. So a risk exists that a birth father could seek an order for custody or access which, if granted, brings him within one of the definitions of “father” and means his consent is required, if not dispensed with by the court.
In 1999, there was a well-publicized case in this province, in which the trial judge awarded custody to a birth father of a child, which had been with adoptive parents around four months. One might say it was a “blood is thicker than water” decision. It was quickly overturned by the Court of Appeal, which carefully analyzed the expert evidence of the negative impact of disrupting a parental bond, at four months of age. They also made comparisons of the proven parenting abilities of the adoptive parents, and the somewhat speculative abilities, and plans, of the birth father.
In my view the best protection against possible disruption by a birth father “at the last minute” is not, as some may prefer, to be secretive and hope for the best. Rather, it is for the Ministry or agency working with the birth mother to emphasize the tremendous risk of a disruption to her child’s life, if the birth father is not involved early on. If adoptive parents also have a genuine appreciation for the crucial benefit to their child of knowing both sides of their biological history, all parties will work in harmony to involve the birth father, and deal with his intentions head-on, before the placement, so there no living in terror of “the last minute.”
Lorne Welwood is director of Hope Adoption Services and he is a lawyer.