Contested Adoption in Ohio
Erik L. Smith
In re Application of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572.
The child was born out of wedlock in 1999. The unwed father was on the birth certificate, putting him in the Centralized Paternity Registry as the "legal" father. The unwed couple made an informal visitation agreement. The father later applied with the Child Support Enforcement Agency (CSEA) to establish parentage. CSEA refused to proceed, believing the father was the "legal" father via the birth certificate. So the father sought to enforce visitation in juvenile court. But the county juvenile court rules required genetic testing to find paternity before visitation could be ordered, so the hearings were postponed.
The mother married another man, who petitioned to adopt the child in probate court, claiming the father's consent was unnecessary under R.C. 3107.07(A) (which applied to established parents) for failing to communicate with the child during the year before the petition was filed. The probate court granted the adoption on that ground.
The Ohio Supreme Court disagreed, holding that where a parenting issue was pending in juvenile court, the probate court must refrain from proceeding with the adoption. Because a mother relying on R.C. 3107.07(A) had to establish paternity, the one-year time period could not run until paternity was judicially established, a matter "unresolved" when the adoption petition was filed.1Pushcar at ¶14. The court restated the Uniform Child Custody Jurisdiction Act (UCCJA)'s "bedrock proposition that once a court of competent jurisdiction has begun the task of deciding the long-term fate of a child, all other courts are to refrain from exercising jurisdiction over that matter."2Pushcar at ¶10.
I disagree with the decision. The law in 1999 made a father a parent if he was on the birth certificate and entered in the central paternity registry.3R.C. 3107.01(G) and 5101.314. Here, only the court rule requiring DNA testing negated paternity. The juvenile rule should have been inapplicable for improperly abridging and modifying a substantive right, violating the separation of powers doctrine. In addition, the Ohio adoption statutes contemplate concurrent jurisdiction, making the UCCJA inapplicable and unpersuasive.