New York divides birth fathers into three categories: (1) consent fathers; (2) notice fathers; and (3) fathers without rights in an adoption.
If the birth father was married to the birth mother at the time of the birth, he is automatically a consent father. If the birth father was not married to the birth mother and the child was placed before 6 months of age, the birth father must take all steps possible to grasp his opportunity to be a parent (i.e., file for paternity/custody, file with the putative father registry, come to medical appointments, provide support for the birth mother and child, prepare for the baby’s arrival, etc.) in order to be considered a consent father. If the birth father was not married to the birth mother and the child was placed beyond 6 months of age, the birth father must have at least monthly contact with the child or the parent/custodian of the child and pay a fair and reasonable amount of child support in order to be considered a consent father.
A consent father can prevent an adoption from occurring unless he has abandoned the child. Abandonment occurs where the birth father has not paid a fair and reasonable amount of child support and has had virtually no contact with the child or parent/custodian during the six months preceding the filing of the adoption petition.
Notice fathers are birth fathers who meet certain statutory criteria, such as being listed on the birth certificate, having filed an acknowledgement of paternity, or having been determined by the Court to be the father. A notice father is entitled to notice of the adoption and an opportunity to inform the Court what he thinks is in the child’s best interest, but he is not able to prevent the adoption.
A notice or consent birth father can choose to sign a consent to the adoption. If they do not, a notice will be issued by the Court that will have to be personally served upon him, notifying him of a date to appear in Court. If he fails to appear, the adoption will move forward. If he appears and claims he is a consent father, the Court will schedule a hearing to determine that issue.
If a birth father does not meet the standard of a notice or consent father, he does not have the right to be notified of or to withhold his consent to the adoption of his child.
In New York, birth mothers can also choose to exercise their New York State Constitutional privacy right not to identify the birth father. However, in some cases this will cause delays or undermine the security of the adoption. Both the birth mother and the adoptive parents should speak about this in depth with their own attorneys before a decision to decline to identify the birth father is made.