The Florida Adoption Act: A Masterpiece of Absurdity
Erik L. Smith
I had always considered Franz Kafka to be the king of absurd fiction. Not any more. I now nominate the Florida legislature for the top honor. Its masterpiece is the Florida Adoption Act, a law purporting to balance the rights of all parties in adoptions.
The Act starts by stating that the mother can conceal her pregnancy from the father and defraud the court.1FLA. STAT. 63.063(3). Consequently, simply because he had sexual intercourse, the father has a duty to file with the Florida putative father registry.263.088(1); 63.054(1). To register, however, he must swear to be the father of an existing child.3Jurat to Putative Father Registry Form DH 1965. The registry then tells him he can revoke this sworn paternity claim only before the birth of the child who may not exist.463.054(5); Instructions to Form DH 1965. If the child turns out to exist, but the man realizes after the birth that the child is not his, he must execute an "irrevocable affidavit of nonpaternity" to eliminate the father status he earlier had a duty to claim.563.062(4).
To balance rights further, the Act tells the mother that before the child is three (or so) days old, she may, for any reason, keep all names secret when surrendering the child for adoption so the putative father registry cannot be searched.663.0423 referring to 383.50. As long as the child is unharmed, her right to anonymity is "absolute."7383.50(5). The adoption petitioner must then investigate missing person reports, "whether or not the child is missing."863.0423(3). If no report exists, the petitioner need not search for the unknown father.963.0423(4). Instead, the registered unknown father must find the anonymous child.1063.0423(6). Only when the father finds the child, or somehow becomes known, is he entitled to notice of the petition to terminate parental rights,1163.0423(4). whereupon the absolutely anonymous mother becomes known because the father knows who she is.
Where a father is known and locatable, the adoption agency petitioner may give the father notice of the adoption plan, even before the birth.1263.062(3)(a)(b). The notice must tell the father that he needs to file a paternity claim with vital statistics within 30 days and a pledge of commitment with the court.1363.062(3)(a). But the agency does not need to tell him about the putative father registry per se.14Id. After hearing his arguments, the court will terminate his rights as a matter of law if he did not register before the adoption petition was filed,15.088(1); 63.062(2)(d). which can be three days after the birth.1663.213(b).
The legislature calls this "a method for absolute protection of an unmarried father's rights."1763.063(3).
63.063(3) "The Legislature finds no way to remove all risk of fraud or misrepresentation in adoption proceedings and has provided a method for absolute protection of an unmarried biological father's rights by compliance with the provisions of this chapter. In balancing the rights and interests of the state and of all parties affected by fraud, including the child, the adoptive parents, and the unmarried biological father, the Legislature has determined that the unmarried biological father is in the best position to prevent or ameliorate the effects of fraud and, therefore, has the burden of preventing fraud."
63.039(2) "If a court finds that a consent to adoption or an affidavit of nonpaternity taken under this chapter was obtained by fraud or duress attributable to the adoption entity, the court may award all sums paid by the prospective adoptive parents or on their behalf in anticipation of or in connection with the adoption."
Erik L. Smith is a certified paralegal in Columbus, Ohio and an independent legal researcher for family law and personal injury attorneys. He has appeared on NPR, CNN, and PBS regarding adoption law and has published several of his articles on the internet and in hard copy publications such as Ohio Lawyer, Air Force Law Review, Probate Law Journal of Ohio, Adoption Today, and Midwifery Today.