Two lawmakers want to address the rights unwed biological fathers have in an adoption proceeding, but with notably different approaches.
SB55, sponsored by Sen. Todd Weiler, R-Woods Cross, says a birth mother, adoption agency or attorneys involved may send a "prebirth notice" to any presumed father informing him of a potential adoption proceeding in Utah. HB308, sponsored by Rep. Christine Watkins, D-Price, would require such notices, but only to out-of-state fathers.
Each bill gives the father 30 days to respond to the notice by acting to protect his rights in Utah; failure to respond in that time period would extinguish any right to object to the adoption. Watkins' bill would eliminate the need for a father to take court action before he can file with the state's Putative Father Registry, while Weiler's bill would keep in place the current requirement that an unwed father file a paternity action in court before he can file with the registry. He must do both to be entitled to notice under Utah's current adoption law.
The House Health and Human Services Committee will consider HB308 Monday at 2 p.m.
Weiler said recent Utah Supreme Court decisions, including a Jan. 27 ruling in favor of a Colorado father's right to intervene in an adoption, have "highlighted" the lack of a notice provision in Utah's statute.
"This bill will address that public outcry we've been hearing," said Weiler, an attorney who has handled more than 50 adoption cases, including some involving unmarried biological fathers. "I think this strikes a good balance between the various interests at stake."
Weiler's bill also adds that an unwed father has "at least" one business day after a child's birth to act to protect his rights, language aimed at addressing a 2007 Utah Supreme Court decision that found it was unconstitutional to not allow extra time when a birth occurs on a weekend or holiday.
Weiler's bill was crafted with help from attorney Larry Jenkins, chairman of the Utah Adoption Council's standards and practice committee. Jenkins, who is being sued by a Virginia father who alleges a vast conspiracy exists in Utah to take children from unwed biological fathers, was unavailable for immediate comment Friday.
But attorney David Hardy, the council's past president, said the industry group approved the "general ideas" in the bill.
"The reason for that is it allows a birth mother to give notice and plan ahead as far as what is going to happen with the child," Hardy said. "It is something the birth mother may elect to follow, but she can say, 'I don't want to.' It's not mandatory."
The notice provision would have no effect on an unwed father's responsibility to independently register and begin a paternity action to protect his rights before a mother gives birth.
Hardy said Weiler's proposal is modeled after adoption laws in Arizona and Indiana.
"We understand from adoption practitioners in other states it works well," Hardy said.
But in Arizona, mothers don't have a choice about notification once an adoption action has been filed with the court. They must then identify potential fathers and inform them they are pursuing an adoption.
Wes Hutchins, an adoption attorney, consulted on Watkins' bill and believes it is the stronger of the two proposals.
"Absolutely," said Hutchins, who is the council's current president but spoke independently of the group. "It does a better job of protecting the rights of out-of-state birth fathers and preventing birth mothers from forum shopping in Utah."
Weiler's bill reinforces what's known as the immunity clause in Utah's adoption law, which says an unwed father cannot use fraud by the birth mother as a defense for his failure to act. It adds language that says once a birth father receives a notice, his responsibility to act remains intact no matter what the birth mother may tell him.
"If she comes back and says she's changed her mind, that doesn't change his responsibility," Hardy said.
Neither proposed bill states when in the pregnancy the notice to an unwed father should occur, though Hardy noted "it is not something that works late in the pregnancy" since under Utah law a birth mother may irrevocably relinquish her parental rights and consent to an adoption within a day of giving birth. The proposal may conflict with existing law that gives an out-of-state father 20 days to act when he discovers after the fact that his child was born and placed for adoption in Utah.
"That's an open question we may need to look at," Hardy said.