Friday, November 13, 2009

Ensuring Father's right to challenge adoption petition

In June of this year the Indiana Supreme Court issued its opinion In re Adoption of Unborn Child of B.W. in which a father had filed a paternity action to challenge the mother's intent to place the unborn child for adoption. Unfortunately, discrepancies in the language of the Indiana statutes relating to adoption and paternity proceedings led the court to believe that the biological father had irrevocably given consent to the adoption when he filed his objection, by way of a paternity action, in another court.

I wrote about this in July with an analysis of the case under the title A Bill to Modify Indiana Adoption and Paternity Law.

The question presented was whether the appellant biological father's consent to the adoption of his child was irrevocably implied when he failed to file a motion to contest in the adoption court but did take concurrent steps to establish paternity and preserve and assert his parental rights in another court. The Superior Court Judge, Monroe, found that the father's consent was irrevocably given when he failed to file a motion to contest the adoption in the adoption court.

This was based upon the language in Indiana Code § 31-19-10-1(b) reads, “A person contesting an adoption must file a motion to contest the adoption with the court not later than thirty (30) days after service of notice of the pending adoption.”

However, Indiana Code § 31-19-4-5 states that the father's consent will be irrevocably implied if he fails to file a motion to contest the adoption; or a paternity action under IC 31-14 within 30 days of receiving the notice.

The problem arose when the paternity action was filed in a different court.

Justice Boehm in concurring with the majority stated, “I hope the General Assembly will consider requiring that a putative father wishing to contest an adoption or declare paternity must file in the court in which an adoption action is pending or otherwise assure consolidation of these two proceedings to reduce the opportunity for delay and confusion, while still preserving all rights of the putative father.”

In response I drafted legislation that would bring congruence to these statutes. Based upon this Indiana State Senator Phil Boots had legislation drafted that would bring uniformity to those statutes by requiring that a paternity action be filed in the court having jurisdiction over the adoption proceedings. It would also establish that the manner in which a biological father could challenge an adoption would be to file a paternity action in the court hearing the adoption petition.

Preliminary Draft 3154 would add a new section to the Indiana Code, 31-14-5-9, which would read;

Sec. 9 If a person files a petition to establish paternity under this chapter and the child who is the subject of the petition is also the subject of an adoption proceeding under IC 31-19, the petition to establish paternity must be filed in the court that has jurisdiction over the adoption proceeding.

Preliminary Draft 3154 would amend Indiana Code, 31-19-10-1, which would then read;

(b) A person contesting an adoption must file:
(1) a motion to contest the adoption with the court; or
(2) a petition to establish paternity under IC 31-14 with the court having jurisdiction over the adoption case.

When this bill is set for hearing I will testify about the adoption of BW case and the reasons this legislation is needed. I would also like to have anyone who is the father of a child who was the subject of a petition to place the child for adoption over his objection to also testify. If you are interested in helping get this legislation passed please contact me.


Indiana Custodial Rights Advocates

©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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