Question: Does a non-married biological father have to give his consent to the termination of his parental rights or to the adoption of his child?
Yes, if he takes the right steps to establish his rights.
Title 16, Chapter 20 of the Idaho Code defines a parent as "the unmarried biological father whose consent to an adoption of the child is required pursuant to section 16-1504." Idaho Code § 16-2002(11)(d).
Idaho Code § 16-1504, which can be found here: (http://legislature.idaho.gov/idstat/Title16/T16CH15SECT16-1504.htm), sets forth from whom consent is required in an adoption proceeding. It provides that consent is only required from an unmarried biological father under three conditions:
- Idaho Code § 16-1504(2)(a): In regard to a child who is more than six (6) months of age, consent is required where the unmarried biological father has "developed a substantial relationship with the child, taken some measure of responsibility for the child and the child's future, and demonstrated a full commitment to the responsibilities of parenthood," which is further defined in that section.
- Idaho Code § 16-1504(2)(b): In regard to a child who is under six months of age, the father must strictly comply to file proceedings to establish paternity, stating that he is fully able and willing to have full custody of the child, setting forth his plans for the care of the child, and agreeing to an order of support; and filing a notice of the proceedings to establish paternity with the vital statistics unit of the department of health and welfare; and paying a fair and reasonable amount of the expenses incurred in connection with the mother's pregnancy and the child's birth. The link for the registration of notice portion of those requirements with the vital statistics unit of the department of health and welfare can be found here:
- Idaho Code § 16-1504(i) – An unmarried biological father who has filed a voluntary acknowledgement of paternity with the vital statistics unit of the department of health and welfare. The link for the form affidavit is here: http://www.healthandwelfare.idaho.gov/Portals/0/Health/Vital%20Records/PaternityAffidavitE.pdf
Best Practice: If you believe that you are or may be the father of a child, whether already born, or not yet born, it is extremely important that you consult with an attorney immediately to comply with the requirements of the statute set forth above. Courts have taken a very "hard line" approach to fathers who have not strictly complied with those provisions, even denying a father the opportunity to notice in a termination and adoption proceeding who had already been determined, through paternity testing, to be the biological father. See e.g. In the Matter of the Termination of the Parental Rights of John Doe, 155 Idaho 36 (Idaho 2013).
Question: By what date am I required to comply with the requirements of the statute to establish my parental rights?
Idaho Code § 16-1505(1)(a) provides that notice of an adoption proceeding is required to "any person or agency whose consent or relinquishment is required under section 16-1504, Idaho Code, unless that right has been terminated by waiver, relinquishment, consent or judicial action, or their parental rights have been previously terminated."
Idaho Code § 16-1513(4) provides that "any father of a child born out of wedlock who fails to file and register his notice of the commencement of paternity proceedings pursuant to section 7-1111, Idaho Code, prior to the date of the filing of any proceeding to terminate the parental rights of the birth mother, is deemed to have waived and surrendered any right in relation to the child and of any notice to proceedings for adoption of the child or for termination of parental rights of the birth mother. His consent to the adoption of the child shall not be required and he shall be barred from thereafter bringing or maintaining any action to establish his paternity of the child Failure of such filing or registration shall constitute an abandonment of said child and shall constitute an irrevocable implied consent in any adoption or termination proceeding."
Likewise, in reference to the termination of an unmarried biological father's parental rights, if the requirements above are not followed, then no notice is required in a termination proceeding. See Idaho Code § 16-2007(5).
Therefore, currently, a father must have complied with the statutory requirements set forth above prior to a proceeding to terminate the parental rights of the birth mother. However, beginning in July 2014, this statute, Idaho Code § 15-1513(4) will be amended to provide two other occurrences that will cut off a father's ability to comply with the statutory requirements to establish paternity: (1) upon the filing of any proceeding to adopt the child, and (2) upon the execution by the mother of a consent to terminate her parental rights.
Best Practice: Time is of the essence when dealing with preserving your parental rights. If you want to make sure that your parental rights are not terminated, or your child adopted without your knowledge or consent, you need to hire an attorney immediately to assist you in comply with the statutory requirements that will preserve your rights.
At the law office of Roy, Nielson, Barini-García & Platts, we have helped hundreds of clients, fathers, mothers, grandparents, and others, through the processes of terminating parental rights, preserving parental rights, and pursuing adoptions. If you have any questions about these processes and how to preserve your rights, please contact our office today.