In California stepparent adoptions, a very common concern is whether it’s possible to proceed with the adoption when the birth father is no longer in the country and either cannot be found or will not consent to the adoption. The short answer is yes, most likely. Whether the father was deported or has left the United States voluntarily does not matter. What matters is where the child is, where the act that is the basis of terminating his rights occurred, and what kind of father he is. California law generally divides fathers into two categories: presumed and alleged. Very generally speaking, a presumed father is one who either: was married to the mother at the time of conception or following, or is named on the child’s birth certificate, or has executed a Voluntary Declaration of Paternity or has been decreed a father through court action, or has held the child out to the world as his own and supported the child. Occasionally, a father may rise to the level of presumed father if he has made active efforts to step up and parent the child. An alleged father, on the other hand, does not meet any of those criteria.
If a father is presumed, he will either need to consent to the adoption or his rights need to be terminated through an abandonment action. When the father is out of the country, serving him with notice can be challenging and it will be important to have an attorney guiding you through the process. Some countries are members of the Hague Convention on Service and process service, if you know the man’s address, must go through that country’s government. If the country is not part of the convention, you will need to serve the father in accordance with California law (personal service if possible). The basis for having “jurisdiction” over the father, even though he is in another country, comes from the fact that the child is in California and/or that the act of abandonment happened in California. Sometimes friends or family members are able to serve the father for you. If not, hiring a process server is an option, albeit often an expensive one. If you can’t locate the father (Adoption Law Group helps in efforts to find him), you will need to prove to the court that you tried diligently to locate him and then request permission to publish a legal notice of the adoption action in a newspaper most likely for him to see. The process can be lengthy, but it is certainly doable.
When a father is alleged, he can either consent to the adoption or will need to be served with a notice warning him that he has thirty days to file a paternity action or his rights will be terminated. Finding and serving him with that notice follows most of the same rules as for presumed fathers, except service by publication is not necessary, once you prove to the court that you have made a good effort to find the father.
If the father, whether presumed or alleged, is willing to consent to the adoption, he can sign a California form, but will need to have it notarized in accordance with the laws of his country (often requiring a signature at the consulate).
While terminating the rights of a father out of the country can certainly sound daunting, the process is not really as bad as some would have you believe and should not prevent you from finalizing your family through adoption.