Under Arkansas law, when a child is born out of wedlock, the mother has sole legal and physical custody of the child. The father’s name may appear on the birth certificate after a DNA test establishes his paternity, or if both mother and father sign an acknowledgement of paternity form at the hospital. However, putting the father’s name on the birth certificate does not create any custody rights in the father. The father must petition the court for visitation or custody if he desires these rights.
Arkansas does maintain a putative father registry. This is a database where men who believe they may be fathers to children, both born and not yet born, may enter their information with Arkansas Vital Records. Arkansas Vital Records then informs the putative fathers before the children are placed for adoption, so that the father may timely establish and exercise his parental rights with the aid of the court.
However, if the child is conceived out of marriage with the putative father, but the mother is married to someone else at the time of the child’s birth, the mother’s husband is the presumed legal father of the child. Even if everyone knows and acknowledges that the mother’s husband is not the child’s biological father, under Arkansas law, the presumption is that the mother’s husband is the child’s legal father. This can cause a substantial problem if the putative father desires to have a relationship with the child if the mother and her husband, the legal father of the child, do not approve of such interaction.
In some cases, a mother thwarts the putative father’s efforts to have a meaningful relationship with the child. In a recent decision handed down by the Arkansas Supreme Court, a putative father was able to set aside an adoption that took place without his consent after the mother did everything she could to proceed without him. The crux of this case was not on the putative father’s strict compliance with Arkansas statutes, but rather his valiant efforts to comply.
In this case, the putative father found out his girlfriend, a Missouri resident, was pregnant early in 2010. At that time, the mother made clear that she intended to give the baby up for adoption. Shortly after, he registered with the Missouri Putative Father Registry.
In May of 2010, the mother left Missouri and moved to Texas, and began to work with an adoption agency to place the child. That summer, the adoption agency sent the putative father documents which asked him to consent to the adoption, and the putative father refused to sign them. The father filed actions of paternity in Texas, and registered with the Texas Putative Father Registry. Because he knew the mother was from Illinois and could potentially return there to have the baby, he also registered with the Illinois Putative Father Registry.
Toward the end of the summer of 2010, the mother moved to Arkansas, and the putative father also registered with the Arkansas Putative Father Registry. The baby was born in early September of 2010, and the mother signed adoption papers. Though the putative father had not been informed of the child’s birth, he had already filed petitions for paternity and custody of the child.
At the time of the child’s birth, the courts granted the adoption agency’s petition for guardianship, citing Arkansas statutes that said the putative father did not have to give consent because the parents were never married and he had never provided support for the child. When the putative father learned of this action, he filed to intervene.
The putative father’s first appeal was heard and denied, and in January 2011, the adoption was granted. After several more appeals, the case finally made it to the Arkansas Supreme Court. Here, the Court set aside the adoption and ruled in favor of the putative father. While he was not able to comply with the statute literally, because he was constantly thwarted by the mother every time he tried, the Court said they would not require strict compliance. This is because, given the unfortunate circumstances, the putative father timely attempted a relationship with the child at every opportunity.
On the other side of this coin, keep in mind that if you are a putative father, and you willingly sign an Acknowledgement of Paternity Form, and you doubt that you are the biological father of the child, you must rescind within 60 days or before the paternity hearing, whichever is first. After this time period, the only way to set aside the finding of paternity is if the court determines that the father has proved that he signed as a result of fraud, duress, or material mistake.
Likewise, any putative father who acknowledged paternity without the benefit of a DNA test, may challenge paternity, but again, only on the grounds of fraud, duress, or material mistake of fact. This entitles the putative father to a DNA test, and if the child is not biologically his, the determination of paternity is set aside and child support stops. The father will unlikely recover the support he has already contributed. In addition, if the child has already reached the age of majority, the putative father will still have to pay any arrearages that accrued during the child’s minority.
If you are a putative father and wish to be informed of your rights and obligations to your child, it is essential that you meet with a knowledgeable attorney. As illustrated above, many of the issues putative fathers face are time sensitive and may require intensive effort. It is important to get an early start on your case if you are worried that you might be denied access to your child, or end up paying for a child that is not actually yours.
Ark. Code Ann. § 9-10-115 (West)
IN THE MATTER OF THE ADOPTION OF BABY BOY B., A MINOR. 2012 Ark. 92. Available online at: http://opinions.aoc.arkansas.gov/WebLink8/ElectronicFile.aspx?docid=274232&&dbid=0
5 Arkansas Family Law and Practice § 21, Rachel A Runnels.