If the birth father does not sign an Out of Court Consent, then he must be given notice of the adoption proceeding and have an opportunity to appear in court. This is a fundamental aspect of the constitutional right to “due process of law;” the right to notice and the opportunity to appear.
There are three basic ways in which this notice may be given, actual process, substituted process or compliance with the Putative Father Registry, which will be discussed in the next blog.
If the address of the birth father is known, it is always my practice to approach him courteously and ask if he will Consent. If he will not speak to me, or if he is not willing to consent and the adoptive parents reasonably believe that the adoption should occur anyway, then the next step is service of process. Either a Sheriff or a private process server will take Notice of the filing of the Petition and hand it to him, if possible, and post it on the door if personal service cannot be obtained.
He will likely have to be served a second time with notice of an actual court date.
The Notice of the filing of the Petition must include a copy of the Petition and must inform him of his statutory right to counsel. It must also inform him that if he cannot afford counsel, he may ask the court to appoint an attorney for him. However, he will have to prove that he is indigent in order to qualify for court appointed counsel.
If the location of the birth father is not known, then it is my practice to do an Order of Publication, which is a notice in a local newspaper. In the eyes of the law, this is sufficient notice.
The provisions of the Putative Father Registry are an alternative to publication, however, because of litigation currently pending, I believe that publication should be done even if the registry provisions are fully complied with.