An unmarried father in Arkansas is given no legal rights to his child unless he goes through the courts and meets a series of conditions. In contrast, the unmarried mother is given full legal rights without preconditions. As a result, the mother can give the child up for adoption without requiring consent from or even notifying the father. While the state has a few systems in place to protect a father's rights over the adoption, they are marginal at best and easily bypassed.
At the heart of the problem is that an unmarried mother can essentially determine if the the consent of the unmarried father is required for the adoption. Arkansas Code 9-9-206 lists who is required to give consent for an adoption. The only person whose consent is required in all cases is the mother. An unmarried father must first prove a significant custodial, personal, or financial relationship to the child before the petition for adoption is filed, which can be right after the child is born. Since the father can't form a direct relationship with the child prior to its birth, he must have this relationship with the pregnant mother. Unfortunately, the mother can prevent such a relationship by either thwarting the father's attempts or concealing the pregnancy altogether. The fact that "I didn't tell the father I was pregnant" is acceptable in court illustrates how easiliy a father's rights are dismissed. Arkansas Supreme Court case law actually affirms that "the putative father’s lack of knowledge is not sufficient grounds upon which to exempt him from the statutory requirements" needed to give consent for adoption (Escobedo v. Nickita, 365 Ark. 548).
One of the systems in place to protect a father's rights over adoption is the Arkansas Putative Father Registry. This is where an unmarried father can register his name and contact information so that he can be notified before his child is placed for adoption. Although good intentioned, this does little to address the problem. First and foremost, placing one's name on the registry does NOT mean the father's consent will be required for the adoption – this is still at the discretion of the court and dependent on the mother. Second, unless the father knows the mother is planning to give the child up for adoption and is familiar with the process, it is unlikely he will even know this registry exists. Finally, it does nothing for fathers unaware they conceived a child. The unfortunate result is that our state's solution to protecting a father's rights over the adoption of his child still depends on the person planning the adoption – the mother.
Another problem with how our laws address adoption is not how, but when the father is to be notified. A petition for adoption for a child of an unmarried mother must include a statement that an inquiry has been made to the Putative Father Registry. Arkansas Code 9-9-212(a)(4)(c) then states that the registered putative father be given 20 days notice prior to the hearing on the adoption. What should strike everyone about this requirement is that it only requires the father to be notified at the end of the entire process. No notice is required when the mother hires an adoption agency, when the agency finds the adoptive parents, when the child is born, or when the adoptive parents file the petition for adoption. In the criminal justice system, this is the equivalent of notifying someone that they have been charged with a serious crime and the trial will be in 20 days, even though legal preparations by the prosecution have been going on for long before that. What would be a denial of due process in the criminal courts is accepted practice in family courts.
Children being given up for adoption against their father's wishes occurs more often than many realize. Presented below are two Arkansas court cases since 2012. Re Baby Boy B, 2012 Ark. 92
presents a case where the mother did everything she could to proceed with the adoption despite the father's efforts and without his consent. The father registered with 4 different state putative father registries as the mother moved across multiple state lines and concealed her location from the father. After giving birth in Arkansas and not telling the father, she gave the child up for adoption. The initial court in Faulkner County used statute 9-9-206(a)(2)(F) to determine that the father's consent was not required because he had not developed a relationship with the child, even though this was because the mother prevented any relationship. It wasn't until two years later and after several appeals that the adoption was overturned by the Arkansas Supreme Court and the father granted custody.
A similar problem is present in the more recent 2015 Ark. App 483. In this case, the mother intentionally concealed the pregnancy from the father. When the father discovered the pregnancy in its final month, he took the appropriate steps of filing with the Putative Father Registry, filing a paternity action, and making last minute preparations for the birth of the child. He also made attempts to contact the mother directly and through her family, but got no response. When it came time for the adoption hearing, the court allowed the adoption, stating that the father had not established a significant relationship with the child so his consent was not required. In September 2015, the Arkansas Court of Appeals upheld this ruling, citing Escobedo v. Nickita.
Gender stereotypes, bias, and inequality continue to thrive in Arkansas. Our laws prejudge unmarried fathers as unwilling and unworthy while unmarried mothers are treated as infallible and universally benevolent. The above examples illustrate not only the flaws in our state's adoption laws, but highlight the disregard for fathers' rights in the courtroom. Arkansas Advocates for Parental Equality supports requiring both parents' consent for all cases of adoption, regardless of marital status. Specifically, we support: