If there is one thing worse than desperately aching for a child in your arms, it is having your dreams fulfilled only to be told the child may not become your son or daughter after all. For adoptive parents, the fear of saying goodbye to a child they love can be a legitimate one.
A “contested adoption” occurs when a biological parent, most commonly the birth father, decides he does not support the adoption and seeks to prevent it. While very rare, a contested adoption can be a heart wrenching and anxious experience for an adoptive couple. Setting aside the implications for the biological parent, here is some practical information for living through a contested adoption, the only way one can, one worry at a time:
What does it all mean?
Ideally, both biological parents will consent to the adoption. Sometimes, however, the named birth father does not. This cannot always be anticipated ahead of time. If the biological father states his objection, the court will hear evidence to determine whether or not the adoption can proceed despite the objection. The adoptive couple’s attorney will have to prove why the biological father’s parental rights should be terminated. In Kansas, the court considers several factors, including whether the biological father:
- Abandoned or neglected the child after knowledge of the birth;
- Is unfit;
- Has made no efforts to support or communicate with the child after the birth; and
- Failed to meaningfully support the biological mother during the last six months of her pregnancy.
What happens next?
While the outcome of the adoption is litigated, the adoptive family cares for the baby. The court may permit the biological father to have visitation with the child. Typically, the biological mother remains in contact with the adoptive family and their attorney. It is critical for the biological mother to provide the facts surrounding conception, pregnancy, and birth, and to testify at the trial. Obviously, it is also important for her to continue to support the adoption. Most contested adoptions are highly impacted by the credibility of the biological mother and the biological father and what information and evidence they provide.
What the what?
If a biological father cannot afford his own attorney, he is still entitled to representation. In most Kansas counties, the adoptive family will be responsible for paying for the father’s attorney’s fees. That can be a harsh—and expensive—pill to swallow. In cases where the court appoints counsel for the biological father, the appointed counsel usually works at a reduced hourly rate. Even so, paying your own attorney and opposing counsel is difficult, both emotionally and financially.
Contested adoptions are tried to the court, not a jury. If the court rules in favor of the contesting biological father, he retains his parental rights and the adoption will not proceed. In that case, the biological mother’s rights are not terminated either. The consent or relinquishment she signed was final and irrevocable between her and the adoptive parents, but if the adoptive fails, her parental rights are still intact.
In fact, in a failed adoption, the child is typically returned to the biological mother. Then the biological father must seek custody and visitation through a paternity action. At this juncture, the prospective adoptive parents no longer have any legal role or rights, although they can appeal. That said, there are cases where the biological mother and the adoptive family remained close and a part of the child’s life.
One day at a time
Like so much of parenthood, the fears and risks of a contested adoption can be paralyzing if you let them. There really is no way to sugarcoat the anxiety of a contested adoption. There are, however, ways to increase the chance of success. Ideally, your attorney will gather information about the facts surrounding conception, pregnancy and the biological parents’ relationship long before the baby is born to determine if the adoption will be on solid ground. After the birth of the baby, you and your attorney will have to take a long and objective look at whether the birth father did, or did not, fulfill his duties under Kansas law before deciding whether you will proceed to trial.
There is nothing easy about contested adoption. It will take a steady mind and heart to make it through. Nothing can speed it up and nothing will erase the ‘what ifs.’ An adoptive mom once told me the ONLY way to survive a contested adoption is, ‘One day at a time.’ I’ve used that piece of advice ever since. One question, one answer, and one prayer at a time. With a little luck, one day at a time will turn into years of happy memories.