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Basics of the Virginia Putative Father Registry

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In January 2007, the Virginia putative father registry (PFR) took effect.1 Timely filing in the PFR gives a father of a child surrendered for adoption in Virginia the right to notice of, and to contest, the adoption of his biological child. The PFR does not apply to fathers who, when the child was born, were married to, or recently separated from, the mother.2 The PFR is also inapplicable to men who have had their paternity adjudicated by a court or who have filed a paternity acknowledgment jointly with the mother.3 Those men are entitled to notice of an adoption plan without filing in the PFR.4 Consult an attorney licensed in Virginia about possible nuances in the law not addressed here. Otherwise, the following apply:

Sex Equals Notice

In Virginia, sexual intercourse gives a man a duty to protect his speculative parental rights by filing in the Virginia PFR within 10 days after the child's birth.5 That deadline does not apply if the putative father's identity is "reasonably ascertainable."6 In that case, notice of the adoption plan is served on the putative father and the PFR filing deadline becomes 10 days after the date that notice was mailed to him.7 "Reasonably ascertainable" is undefined, but implies due inquiry by the adoption petitioner.

The Catch

A mother's affidavit swearing she had several sexual partners establishes the PF's identity as not "reasonably ascertainable," unless evidence refutes the mother's claim.8 (Refuting the claim that mother had several partners will not be easy.) In turn, the absence of that affidavit does not make the father's identity reasonably ascertainable.9 Thus, a putative father should assume the mother would falsely claim she had several sexual partners. Nor do the statutes reveal how the defrauded father gets notice of the adoption plan where the PFR was searched before the father discovered the fraud, hence before he registered. The statutes remain silent about when in the proceedings the adoption petitioner must search the PFR. The law states only that an adoption petitioner must file the search certificate with the court before an adoption or termination of parental rights proceeding concludes.10

Other Exceptions to the Registration Deadline

The father has additional time to register should the mother mislead him into thinking the child died, was miscarried, or was aborted.11 The registration deadline then becomes 10 days after the father discovered he was misled.12 A father can bypass the registry requirement by filing a paternity action before the adoption consent, adoption petition, or termination of parental rights petition is filed in court.13 That helps fathers who were active in the child's life but missed the 10 day-post-birth registration deadline. Yet the statutes are unclear about whether paternity must be established before the PFR deadline passes.14 If so, the putative father likely will lack time to establish paternity. Thus, the father should file in the PFR, and file a paternity claim, as soon as possible.

Children Conceived Outside Virginia

If conception occurred outside Virginia, the adoption petitioner must search the other state's PFR.15 Unanswered is whether the putative father who registered only in the other state is protected where the mother wrongly claims the child was conceived in Virginia. Presumably, the father filing a paternity action in his home state, or in the state of conception, lets him bypass the registry requirement in Virginia. But remember the general rule in adoption that fathers must protect their rights in the state where the adoption is sought if he had reason to know that the mother would move to, or place the child in, that other state. Thus, the father should follow Virginia law immediately upon suspecting that the mother might surrender the child in, or move to, Virginia. A putative father should assume that conception in Virginia gives him reason to know about an adoptive placement in Virginia. As of August 29, 2008, no published case opinion has interpreted the Virginia PFR laws.

Contacting the Virginia PFR

Virginia Department of Social Services
Attention: Putative Father Registry
7 N. Eighth St., Richmond, VA 23219
Tel: 1-877-433-2339. 1-804-726-7524. 1-804-726-7528

Obtain form also from: www.dss.virginia.gov/family/ap/putative_registry.cgi

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Erik L. Smith is an independent paralegal in Columbus, Ohio, specializing in adoption, juvenile, and appellate law. He is an associate member of the Ohio Bar Association.

Endnotes:

[1] Va. Code 63.2-1249 to 1253.
[2] Va. Code 63.2-1202(C-D).
[3] Va. Code 63.2-1250 (B)(1) citing 20-49.1; 20-49.8; and 63.2-12o2.
[4] Va. Code 63.2-1250.
[5] Va. Code 63.2-1250(A) and (E).
[6] Va. Code 63.2-1250(E).
[7] Id.
[8] Unknown Father of Baby Girl Janet v. Div. of Soc. Servs. of City of Lynchburg, 422 S.E.2d 407, 410 (Va. Ct. App. 1992).
[9] Id.
[10] Va. Code 63.2-1252(C).
[11] Va. Code 63.2-1250(C).
[12] Id.
[13] Va. Code 63.2-1250(B)(2).
[14] See Va. Code 63.2-1250(B) and (C).
[15] Va. Code 63.2-1252(A).

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