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Paternity - Unmarried Birth Father's Parental Rights

In many adoption cases we must account for an unmarried birth father's parental rights. Parents have a constitutional right to the care and custody of their children. By carrying the child during pregnancy and giving birth, a birth mother has legally-protected parental rights. But what about a birth father that is not married to the mother--does he have parental rights?

The law says unmarried birth fathers in Utah have "inchoate" parental rights, meaning the birth father must take some actions to perfect his parental rights. "Inchoate" means "not fully developed." If he fails to act, then he may lose his "inchoate" parental rights.



How does an unmarried birth father perfect or develop his parental rights? In short, by acting like an engaged father. Here are his options:

  1. Marry the birth mother and file a Voluntary Declaration of Paternity with the Utah Office of Vital Records and Statistics.

  2. Encourage the birth mother to voluntarily put his name on the child's birth certificate.

  3. Live with the child and openly hold himself out to be the father of the child.s

  4. Develop a substantial relationship with the child, take responsibility for the child, and demonstrate a "full commitment to the responsibilities of parenthood."

  5. Take matters into his own hands by filing a paternity action. Specifically, there are four required steps here:

    1. Initiate a paternity suit in district court.

    2. File an affidavit in court with certain required language. The case of E.G. and N.G. v. C.C.D. explains this rule.

    3. File a Notice of Commencement of Paternity Proceedings with the Utah Office of Vital Records and Statistics.

    4. Pay a "fair and reasonable amount" of pregnancy and childcare expenses. U.C.A. 78B-6-121.

If an unmarried birth father fails to do any of these things, then the child may be placed for adoption without his consent. Utah law requires "strict compliance."

What if the birth mother lies to the unmarried birth father or tricks him? The law states, "Each parent of a child conceived or born outside of marriage is responsible for his or her own actions and is not excused from strict compliance with the provisions of this chapter based upon any action, statement, or omission of the other parent or third parties." U.C.A. 78B-6-106. In other words, by engaging in sexual relations, the unmarried birth father is put on notice that his biological child may be placed for adoption. If he wants to have parental rights, he must take on parental responsibilities by strictly complying with Section 121 as explained above.

If the unmarried birth father does not assert paternity, then the adoptive parent's lawyer will have a paternity search done at the Utah Office of Vital Records and Statistics to see if any man is claiming the child. If no man has claimed the child, then the court may proceed to adoption without notice to the unmarried birth father. To preserve a right to notice, the unmarried birth father must file Notice of Commencement of Paternity Proceedings with the Utah Office of Vital Records and Statistics prior to the time the birth mother signs her consent to adoption or relinquishes her rights to the child.

The birth mother may consent to adoption and relinquish her rights to the child 24 hours after the birth. U.C.A. 78B-6-125. So, a wise unmarried birth father will fulfill the four required steps (i.e., file suit, file affidavit, file paternity, pay costs) during the pregnancy. Time is of the essence.

This is a brief summary of some of the rules regarding unmarried birth fathers. It is not meant to be legal advice for any specific situation. We recommend you contact the Utah Adoption Law Center at (435) 592-1235 or (385) 200-1972 for legal counsel.


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