Putative Fathers in Arkansas (PART 1)

Arkansas Lawyer

William Prettyman is a licensed attorney in Arkansas.

What is a putative father?  A putative father is a person who claims to be or is alleged as the biological father of a child, prior to a judicial determination of actual paternity.

The seminal case in analyzing the rights of putative fathers is Lehr v. Robertson 463 U.S. 248 (1983).  In Lehr, the United States Supreme Court considered whether the unwed father’s due process and equal protection rights under the Fourteenth Amendment were impinged upon by New York’s putative-father registry requirements, to which the father failed to adhere.  More specifically, the Court was presented with the question of whether New York had adequately protected the unwed father’s inchoate relationship with his two-year old child, who he never supported and rarely saw.  The Court noted that parents hold the initial duty of custody and care of a child, and this “primary function and freedom include preparation for obligations the state can neither supply nor hinder.” To dissolve such a relationship, the state must adhere to the due process principles and procedures guaranteed by the Fourteenth Amendment.

Although biology itself is an everlasting link between father and child, it alone does not equate to an everlasting parental relationship.  What the father-child biological link does provide is an opportunity for the natural father to sustain a relationship with his child that no other male enjoys.  Essentially, in the race to have a parental relationship with a child, the natural father is given an insurmountable lead, assuming he is willing to start the race.  If, and when, the father takes hold of his special opportunity “and accepts some measure of responsibility for the child’s future,” he is entitled to the full benefits of the parent-child relationship and substantial constitutional protection of that relationship.  Finding that the father in Lehr never transformed his inchoate interest in establishing a relationship with his child into anything more concrete, the Court held that New York’s putative-father statutes did not offend the father’s constitutional rights.

The court constructed “a judicial philosophy of fatherhood…[based on] the intimacy of association rather than fatherhood based upon biological happenstance.”  Shirley D. Howell, The Putative Father Registry: Behold Now the Behemoth (A Cautionary Tale), 64 Ala. Law. 237, 240-41 (2003).  Under this judicial framework, it is apparent that while filing with a state’s putative-father registry is important for receiving notice concerning potential adoptive proceedings, to qualify for due process protection in the actual parent-child relationship, a father must demonstrate that he has a substantial parental relationship with the child. Within this framework, biology means little; relationship is paramount.

The Arkansas legislature, like the Court in Lehr, requires a putative father to have a substantial parental relationship with the child to have any standing to contest a petition for adoption.  Specifically, Arkansas requires putative fathers to “establish a significant custodial, personal, or financial relationship” with the child prior to the filing of any adoptive proceeding, and if the father is not able to prove the requisite relationship, the adoption will not require the father’s consent.  ARK. CODE. ANN. § 9-9-207 et seq.

Unfortunately, when a child is placed for adoption at birth, a father can have neither a custodial or personal relationship, so he is left only to attempt to establish a financial relationship.  With that said, it is a tenuous notion that a father can sufficiently establish a financial relationship with an unborn child.  One must ask how much support is enough?  Does the financial support need to be given to the mother, or is putting aside money for the child the only way to truly establish the requisite relationship?  Does putting money aside mean opening a bank account, or is money under the mattress enough?  More importantly, is supplying some financial support really an affirmation of a father taking hold of his opportunity to create a relationship with his child?  Simply put, current Arkansas law does not provide the putative father of a newborn any meaningful opportunity to establish a significant relationship with his child.

Although the United States Supreme Court decision in Lehr is the basis for Arkansas’ applicable statutes, the current provisions have overextended the meaning of Lehr to such a degree that putative fathers of newborns are finding their due process rights infringed.  Any assertion that Lehr stood for the proposition that an unmarried father must establish a “custodial, personal, or financial relationship” with his child to gain the ability to veto an adoption is to completely remove the holding in Lehr from its factual context.  In the case, the father’s due process rights in his inchoate relationship were not violated because he had done nothing to grasp his opportunity to establish a “custodial, personal, or financial relationship” with his two-year old child.  What Lehr did stand for, was the idea that a father must be afforded the opportunity to transform his inchoate interest in the parent-child relationship into a more tangible relationship.

A father has the constitutional right to know his child.  Whether or not he grasps the opportunity in a timely manner is his choice.  The State should do all within its power to adhere to this principle, though keeping the best interest of the child its primary concern.

[Analysis of the "Thwarted Father" to follow later]

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