| Read Time: 3 minutes | Family Law

The case going before the United States Supreme Court today in oral arguments should demonstrate to parents, especially fathers, that it is crucial to take responsibility for one’s offspring from the moment of conception. The central argument before the Supreme Court in “Adoptive Couple v. Baby Girl,” is whether the federal Indian Child Welfare Act trumps South Carolina state family law when it comes to terminating parental rights in preparation for adoption. But this case, and many like it, would never have reached the justice system had the father involved asserted his parental rights from the beginning.

State Law Regarding Fathers’ Rights

Most states require fathers who are unmarried to the mother at the time of birth or conception to demonstrate their parental rights in some other fashion. Examples include signing a “voluntary declaration of paternity” at the hospital once the baby is born; financially supporting the mother and child during the pregnancy and following the birth; petitioning the court for parental rights such as visitation, custody, or support; and “holding the child out” as one’s own by telling one’s family about the child, bringing the child into one’s home, showing pictures to friends, etc.

The California Family Code is very clear on this topic in its version of the Uniform Parentage Act.

By doing nothing, fathers potentially relinquish parental rights, giving the mother the opportunity to put the child up for adoption to another family, or to a future husband.

The Indian Child Welfare Act and Fathers’ Rights

At odds with this law, which is standard in almost all 50 states, is a federal law called the Indian Child Welfare Act (ICWA). The ICWA bars the adoption of an Indian child by non-Indians in almost all cases. Congress passed the law in 1978 after abusive adoptive practices by state authorities had led to the placement of almost all Indian children put up for adoption in non-Indian families. Furthermore, anywhere from 25 to 35 percent of Indian children were being taken from their families and put up for adoptions – dwarfing the average rate in any other race or ethnicity.

Congress passed the ICWA to protect the rights of children born with Indian heritage, as well as the Indian communities and tribes themselves from seeing their numbers and culture decimated by knee-jerk state welfare authorities.

How the ICWA and State Laws Conflict on Fathers’ Rights

There is no argument in Adoptive Parents v. Baby Girl that father, under any other circumstance, had relinquished his parental rights. If “Baby Girl,” as she has been called, had no Indian heritage, her adoption would have been unchangeable. Father admitted to NPR that, in agreeing to give up his parental rights, he thought he was relinquishing his parental rights to the mother. “I just figured the best interest would be … for [the mother] to have the full custody of her, but for me to still be in the picture — be able to come visit and stuff,” he told NPR.

But parental rights don’t work that way under state law. You don’t get to relinquish them to mom, and then hold what the mother properly called a “pocket veto” over what the mother chooses to do with the child. You are either a dad, with all the rights and responsibilities that come with it, or you are not.

The federal law in this case, however, gave the father a second chance at being a dad, a chance most fathers don’t get. The ICWA requires those petitioning for adoption who suspect the child has Indian heritage to check with the tribe or nation to see if the child has family who are members of that tribe or nation. If so, the nation is given priority. In this case, the adoption agency misspelled the father’s name. So when the Cherokee Nation looked in its registry, it did not find him, and passed on the adoption. Later, when the father discovered the adoption and disputed it, the Cherokee Nation stepped in.

Unmarried Fathers Have Rights, But They Must Assert Them

Today’s arguments before the court will focus on the conflict between state and federal law. Regardless of the outcome, unmarried fathers must assert their parental rights from the beginning. This means providing financial support to mother and the child from the time the father discovers he is a father. This means providing moral support as well. This means attempting to sign a voluntary declaration of paternity at the hospital after the baby’s birth. This means telling everyone you know you are the child’s dad.

If you do these things, and keep up your relationship with the child, you should never be worried that your parental rights will be taken away from you in an adoption proceeding. If you don’t, then, depending on the outcome in Adoptive Couple v. Baby Girl, even having Indian heritage might not save you.

Author Photo

Brian enters the family law profession with a refreshing approach to these proceedings: heal families; don’t destroy them. In some cases, this means the family is going to look different than it did before. In other cases, this means a new family is created where there was none before. Either way, individuals should leave family court knowing their voices were heard, and with healthy attitudes about themselves and those they love.

Read More Legal Blogs By Brian Pakpour

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