Agencies must work to identify birth parents as soon as possible.
In a cautionary tale for agencies and pre-adoptive parents alike, on March 6, the Superior Court determined that pre-adoptive parents did not have standing to participate in a custody action filed by the child’s birth father. The Court’s order sets the stage for custody of the child to return to the birth father.
The case, K.W. v. S.L. and M.L. v. G.G., revolved around a child born in August, 2015. The child’s parents separated before birth. Mother did not inform Father of the pregnancy and contacted an adoption agency in March, 2015 to make a plan for adoption. The child was placed in the care of pre-adoptive parents (S.L. and M.L.) two days after birth.
Mother provided the agency with limited information about Father. She initially provided only his name. Over time, she identified his Facebook profile and previous employers. In September, 2015, letters were sent to Father’s last known addresses. The letters were received three days later and Father contacted the agency. Within a month, Father indicated his opposition to the proposed adoption and filed a complaint for custody. S.L. and M.L. filed their own petition for custody. Father’s objection to their legal standing was the subject of this opinion.
Although the pre-adoptive parents were performing all parental duties for the child, the Court found that they did not have standing (legal authority) to pursue custody of the child because Father did not consent to the child’s placement with them. The Court reviewed legal precedent, which establishes that a third party usually has standing to pursue custody only if the child is dependent, meaning that the birth parents are not able to provide proper care for the child. A third party cannot take custody of a child without the consent of the birth parents. Further, parental consent cannot be implied where, as here, the birth parent acts promptly to pursue custody following notice of the child’s birth. Because Father had no notice of the child’s birth and placement with S.L. and M.L., allowing the pre-adoptive parents to pursue custody was a violation of Father’s right to parent the child.
The opinion highlights the obligation of adoption agencies to ensure that a thorough search for a putative father is completed in a timely manner. The opinion does not explain why the information that led to contact with the birth father was not provided earlier, or why additional inquiries into his identity and whereabouts were made over time. Nonetheless, the Court emphasized the right of both birth parents to exercise custody even following pre-adoptive placement.
heARTbeat is a publication of KingSpry’s Adoption Law and Assisted Reproductive Technology Law Practice Group. It is meant to be informational and does not constitute legal advice.
