Can a birth father override a birth mother's wishes in BC?


Don Mark
Focus on Adoption magazine

An adoptive family was ordered to give up their 10-month baby girl, adopted at 11 days old, when a birthfather applied for custody of the child. The ruling was later overturned. In light of this case, we have chosed to reprint various clarifications on the legal rights of birth fathers and adoptive families. To put things in perspective, less than one per cent of adoptions are contested by birth fathers.

If a birthmother has chosen a prospective adoptive family for her child, can a birth father override her wishes and obtain custody of the child himself?
The answer depends largely on when the birth father seeks to override the birth mother’s adoption plan and seek custody of the child himself.

If the birth father attempts to override the birth mother’s adoption plan around the time of placement, the placement would probably be halted, and the birth mother would retain custody of the child. It is unlikely that the birth father would win a custody contest with the birth mother; however, he would probably succeed in a custody contest with an adoptive family if he intervened at the preliminary stages.

Similarly, the birth mother would be reluctant to place her child with the adoptive family if she knew that the birth father intended to bring an application against the family for custody of the child. The birth father would likely succeed in a custody battle with the adoptive family because judges often prefer the rights of the birth father over the rights of the adoptive family. The birth father would likely argue that the birth mother did not want the child because she relinquished the child for adoption, and the birth father would argue that his rights as a birth father should prevail over the rights of the adoptive couple who are really strangers to the whole affair.

As well, the adoptive family would be reluctant to take custody of the child if they knew they were exposing themselves to an expensive and heart-wrenching legal battle with the birth father.

The birth father’s position is somewhat weaker, but by no means lost, if he asserts his rights later on in the adoption process. If a birth father was unaware of the birth mother’s pregnancy, the adoption plan, an the adoption placement and then suddenly became aware that he was a father, he might decide to make an application for custody. If the birth father was credible and able to demonstrate that he would be a responsible father, a judge might rule in his favour in a contest between the birth father and the adoptive family, provided no adoption order had been made.

If, however, a birth father was aware of the birth mother’s pregnancy, aware that the child had been placed with an adoptive family, and the birth father "slept on his rights," (did nothing until months after the placement, and then sought to override the wishes of the birth mother), he would be on much shakier ground.

Most judges would be unsympathetic to a birth father who was aware of the situation from the outset who suddenly sought to obtain custody of the child. A judge would decide whether it is in the best interest of the child to have the adoption plan continue or to remove the child from the adoptive family and place the child with the birth father. The judge’s decision would be based on a careful analysis of a number of factors including the credibility and circumstances of the birth father and the adoptive family. The judge’s analysis would include all factors and not simply the economic circumstances of the birth father and the adoptive family. In BC court, and in other provincial decisions, birth fathers have obtained custody even when an adoption placement had been made many months before the birth father intervened.

If a birth father sought to override the birth mother’s wishes after an adoption order was made, the birth father’s position would be very difficult. The court is reluctant to overturn an adoption order after the order is made unless there is evidence of fraud such as, for example, where a birth mother told a direct lie to the birth father by denying that she was pregnant. Even so, the result would not be certain, particularly where the adoptive family was innocent of the birth mother’s deception.

Source: Focus on Adoption Jun-August, ‘96. Don Mark is an adoptive parent and lawyer who has worked in the field of adoption for more than 20 years.

In a moderated panel on revocation and reversal, Mike Todd of LDS Adoption Agency identified a series of red flags for propective adopters. He identified one key concern as the birth father who does not know about an adoption plan.

He said if "the birth father doesn’t know [about the adoption], he could pop up anytime in the next six months and claim parental rights, in particular if no efforts have been made to locate him."

Todd also added that risk of revocation or reversal is heightened when there is "limited awareness of the pregnancy or indications of secrecy or shame."

Did You Know?

  • Before an adoption order is made, all the required consents to the adoption, orders dispensing with consent, or applications to dispense with consent must be filed. 
  • Before an adoption order is granted, the child must have resided with the applicant for at least six months. 
  • When an adoption order is made, the child becomes the child of the adoptive parent, the adoptive parent becomes the parent of the child, and the birth parents cease to have any parental rights or obligations with respect to the child.
  • Applications for custody of a child fall under the Family Relations Act.
  • If both the birth mother and the birth father sign consents to the adoption, his consent is final. The birth mother has 30 days in which to revoke consent. He does not. Once the child is older than 30 days, only a court can allow either of them to revoke consent, and the court will rule in favoor of the "best interests of the child."
  • A birth fathers registry was put in place so the birth mother could notify the birth father before placing the child.
  • The only way a birth father can contest an adoption is to seek custody himself. He cannot block an adoption if he does not intend to raise the child.

Sources: The Adoption Act.