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The Judge
The Judge, Family Law Attorney
Category: Family Law
Satisfied Customers: 703
Experience:  Active family lawyer & former Family Court judge with over 30 years experience in family law.
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The biological father of my child hasnt filed ...

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The biological father of my child hasn''t filed paternity and is not registered as the putative father but sees his child about once a week supervised. He has threatened to kill me and take our child but there were no witnesses. He''s an all around bad person. My husband would like to adopt my child but we''re not sure if we''d have to notify the biological father. On top of that he''s on house arrest for a DUI and we''re not sure if he can adopt while on house arrest. We''ve tried looking for case laws on internet but it looks as though they are not available online unless you subscribe.

There are 2 parts to a step-parent adoption:

1. Termination of the parental rights of the biological father. You must have specific grounds for the termination. I cannot tell you whether you have sufficient grounds because I don't know the specific facts. But, I can tell you that they must be very bad facts, like he abandoned the child and has had no contact. Another ground is that he has been ordered by a court to pay child support and he has refused to do so for 6 months or more.

You will have to notify him of the proceeding. This is done by serving him with citation. He will then have a certain period of time to respond. If he does not respond, or if he ignores the citation, you will be able to terminate his rights by default.

If he does respond and contest the termination, you will have to prove the grounds that you are alleging to justify the termination of his parental rights.

I do not know if he is paying child support. If he is not and he contests the termination, the court will order him to pay child support. If he then goes 6 months without paying, you will have grounds for termination. In addition, once he realizes that he is going to have to pay child support, he may agree to the termination.

2. The second step in a step-parent adoption is the adoption proceeding itself. This cannot happen until the natural father's parental rights have been terminated. As part of the adoption process, the court will order a social worker to conduct a home study and make a recomendation as to whether the adoption will be granted. Your husband's DUI and house arrest will come to light at that point.

The point is that your husband's DUI is not an automatic disqualification for an adoption. It is one factor among many which the social worker, and then the judge, will consider in trying to decide if the adoption is in the best interest of your child.

I hope this answers your questions. If there is anything that you do not understand, please let me know and I will be to explain further.

In the meantime, please click "Accept" so that I may be paid for my answer and any subsequent follow ups with you.

Thank you,

The Judge
The Judge and other Family Law Specialists are ready to help you
Customer: replied 8 years ago.
So a home study would help the house arrest situation. But, as for the biological father, my understanding was that he did not have any legal rights 'til he filed paternity and he doesn't have rights to notification unless he registers as the putative father, according to statute 31-14-20-2 and 31-19-5-6 and 31-19-5-18. However, despite these statutes, lawyers tend to think otherwise. We have only found one that agrees that he does not need notification.
Hello againCustomer

I think I have reconciled why you are getting conflicting opinions. And it looks good for you.

The statutes that you cited are important. But they don't specifically address the issue you are talking about.

Here's the issue, what notice is a putative father who has not registered with the state registry entitled to.

The specific statutes you need to look at are 31-19-2.5-4 and 31-19-9-15 which specifically address the notice issue.

Without going into a long, technical explanation this is what the legislature of Indiana has set up:

1. The putative father is entitled to notice of the termination/adoption. This principle is of constitutional dimension, and I mean the United States Supreme Court.

2. Indiana, and many other states, have passed laws establishing a paternity registry in which a putative father must register to protect whatever rights he may have.

3. By law in Indiana (the statute I quoted earlier), if putative father fails to register, he waives the rights that he might otherwise have. One of those rights is the right to be notified of a termination/adoption.

So, you see, everybody has been right so far. He is entitled to notice, but until he files with the registry, he is waiving his right to notice.

I hope this makes sense to you. It is a little complicated and the law is structured like this to get around the Supreme Court's ruling that a putative father is always entitled to notice. Under the Indiana law, he is still entitled to notice, but he must take an affirmative step (register) to preserve that right. If he doesn't register, he waives the right to notice.

So, yes, it appears that you can procedd with the adoption without notice to the putative father.

Thank you for the payment and I hope this clears it up for you a little. If you need me to elaborate, let me know and I will be happy to.

The Judge
The Judge and other Family Law Specialists are ready to help you
Customer: replied 8 years ago.
Thank you very much, that helps a lot!

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