While adoption is a wonderful thing, there is a voice in the adoption process that is too often silent. In Massachusetts and throughout the country, they are often referred to as the “unknown,” the “unnamed,” or the “of parts unknown” fathers. Many unwed fathers are never given the chance to decide whether to parent their child or participate in the adoption planning. Why is this so?

Many states, including Massachusetts, have no process of notifying the father, or expectant father, of a child’s birth or potential adoption other than the mother’s identification. Yet Massachusetts law states that for an unwed father to preserve his parental rights, he must take action prior to the termination of the mother’s rights. Thus, the statute presupposes the mother has identified the father and that the father is aware of the mother’s pregnancy and adoption plan. Simply put, the father must rely upon the mother to have his voice heard.

A solution to this problem is called a putative father registry. There are putative father registries in at least 34 states. Massachusetts is one of few states that does not have one. A putative father registry is a confidential database, where unwed fathers file notice of intent to claim paternity within a prescribed time. A state’s putative father registry protects the right of an unwed father to receive notice of any proceedings involving paternity, termination of rights, or a pending or planned adoption of a child he may have fathered, and allows him to come forward and assert his parental rights and preserve the opportunity to parent his child.

A putative father registry also relieves the mother of having to identify the father, should she not want to for whatever reason. For example, she will not have to disclose to anyone that she does not know who the father was, or that she is in fear of her safety or that of the expected child. Moreover, with an active and well thought out putative father registry, the mother will not be in a position to circumvent the father’s parental rights, intentionally or not.

Having the father involved from the beginning has many advantages for the child as well. Gone will be the fear of adoptive parents that a father may show up later and disrupt an adoption; the placement will be a permanent one. In situations where the father chooses to participate in the adoption process, more reliable medical history and notable information will be available. The need to answer the child’s questions with words such as, “I don’t know who your father was”; “I do not know what he looked like”; or “I do not know whether he knows you were born” will be diminished greatly.

The putative father registry does not demand that a potential father identify himself, it simply levels the playing field so an unwed father may choose to be a proud father and take an active role in making decisions for the health, welfare and best interests of his child.

All of the participants who can and want to contribute to placing children in safe, loving homes deserve a voice in the process. If you agree with this article, please share it with your State Representative. We can make a change for the better.

An attorney’s role in any aspect of adoption law can easily be fraught with conflicts. It is critical to identify whom you represent, and stick to that role. The participants in the adoption process are the agency, prospective adopting parent(s), expectant/ birth mother, and expectant/ birth father. (1) (2)

Massachusetts Rule of Professional Conduct (“Mass. R. Prof. C.”) Conflict of Interest 1.7 (b) (1) allows a lawyer to represent multiple clients in a single transaction, with certain conditions. Among them are the lawyer’s beliefs such as the representation will not adversely affect the relationship with the other client; Id. 1.7 (a) (1) and each client consents after consultation. Id. 1.7 (a) (2). In addition, the lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to…unless, the lawyer reasonably believes the representation will not be adversely affected Id. (2) (b) (1); and the client consents after consultation. Id. (2) (b) (2). Specifically in situations representing multiple clients in a single matter, the consultation must include an explanation of the common representation and advantages and risks involved. Id.

In adoption matters, it is often very easy for, in particular, the attorney representing the agency, to give the appearance of also representing the interests of any other member of the adoption triad. Despite the permission granted by provided Mass. R. Prof. C., this is an invitation for malpractice, because conflicting circumstances are always present. (3)

Placement of the Child
The agency attorney must have only one client, that of the agency. Although at first blush, it may appear that the interests of the expectant parent(s) and that of the prospective adopting family and the agency are the same: all want the placement to occur. However, in accordance with the Code of Massachusetts Regulations, Title 102: Office of Early Education and Care, (“102 CMR”) 5.02 Definitions, an agency retains the right to refuse to place a child in a designated home based upon the results of a completed adoptive parent assessment. There are circumstances where a birth parent has made an adoption plan to place the child with a specific family. Nevertheless, it is the agency’s responsibility to determine the appropriate placement for the child. 102 CMR 5.08. As a result, the agency may determine that placement with that particular family is not in the child’s best interests. Furthermore, it is the agency’s responsibility to determine whether the adoption will be finalized. M.G.L. Ch. 210 §2A (E).

Parental Rights
Expectant/birth parents have the right to independent counsel. 102 CMR 5:09 (1) (f). The expectant parents must be made aware that the agency’s attorney does not represent them. Id. This can be confusing, because many times, it is the agency’s attorney who takes the surrender from the birth parents, and has explained the implication of their surrender and the law as it applies to them.

Often times, the mother may or may not identify the father. Massachusetts does not require that the expectant/birth mother do so. Rather, the statute provides the agency request the mother voluntarily provide a sworn written statement, executed before a notary and in the presence of two competent witnesses, one of whom shall be selected by the mother, that identities the child’s father and his current or last known address. M.G.L. Ch. 210 §2. In such cases, the placement is considered a high legal risk, pending the termination of parental rights. (4)

It is critical for the prospective adoptive family to have independent representation to advise them as to the implications and whether they should go forward with a high legal risk placement. A very frequent disagreement is when the agency does not want to go forward on the placement and would prefer to place the child in foster care, pending termination of parental rights. Again, here is a situation where the interests of the birth mother, agency and prospective adopting family can collide.

Another critical point is when, and if, the father comes forward and asserts his parental rights. It is the agency’s decision as to whether to challenge the father because it will be the agency’s burden to prove by clear and convincing evidence that he is unfit. Proof of parental unfitness must be established by clear and convincing evidence. Stantosky v. Kramer, 455 U.S. 745 (1982).

Under such circumstances, the birth mother’s interests will undoubtedly conflict with the father, because she has made an adoption plan, does not want to parent the child, and probably does not want him to parent the child, either. Not represented by counsel, or not having adequate counsel, she may not have realized that upon the signing of the surrender, she cannot revoke her surrender on the grounds that the father came forward to challenge the placement. If she has executed the surrender, the birth mother is essentially, foreclosed from participating in any further proceedings regarding her child. If the father cannot be proved to be unfit, and birth mother has not executed the surrender, she may find herself parenting by default, that is, unless she is willing to have him parent the child.

The prospective adoptive family may want to pursue the challenge, against the advice of the agency. Here, again, vital interests are at odds.

Confidentiality in Adoption Cases
M.G.L. Ch. 210 §5D, provides strict guidelines for the release of information to an adopted person, the biological parent of an adopted person and the adoptive parents of an adopted person. Simply put, per the statute, an agency may release information as follows:

• Upon written request the agency may release to the adopted person, if he/she has reached the age of 18, information about his biological parents which will not indentify or tend to lead to the identification of the biological parents or their present or former locations. Id. (a) (1).
• Upon written request by the biological parent of an adopted person, information about the adopted person which will not reveal or tend to reveal his identity after adoption or his present or former locations and which will not tend to lead to his identity after adoption or present or former locations. Id. (a) (2).
• Upon written request by the adoptive parent, release to the adoptive parent, if the adopted person is under the age of eighteen years, information about the adopted person and his/her biological parents which will not identify or tend to lead to the identification of the biological parents or their present or former locations. Id. (a) (3).
• A placement agency may release the identity of the adopted person to the biological parent and the identity of the biological parent to the adopted person, after the adoption, if it has received written permission from the biological parent and the written permission from the adoptive person or parents if the adoptive person in under the age of twenty-one. However, if the biological parent is surviving, the written permission must be given at least thirty days before the release of the identifying information. Id. (b).

However this law conflicts with M.G.L. Ch. 46 §2B Inspection of Birth Certificates of Adopted Persons, which after years of convincing the legislature, was finally enacted December 5, 2007. Simply put, an adopted person 18 years or older born in the Commonwealth on or before July 17, 1974 or after January 1, 2008 or by an adoptive parent of an adopted person under 18 years of age and born in the Commonwealth on after January 1, 2008, may have access to the birth certificate prior to adoption.

The reason for the qualification of dates was to “protect” those birth parents who were promised confidentiality at the time of their adoption plan. Practically speaking, today with the internet, Facebook, persons who specialize in searches and judges having a more liberal attitude, access to once confidential information may be had.

Guidelines for Setting Fair Attorneys Fees
Attorney’s fees in adoptions vary from attorney to attorney. Mass. R. Prof. C. 1.5. FEES, offers excellent guidance. Mass. R. Prof. C. 1.5 provides in pertinent part:

(a) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee or collect an unreasonable amount for expenses. The factors to be considered in determining whether a fee is clearly excessive include the following:

1. the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
2. the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
3. the fee customarily charged in the locality for similar legal services;
4. the amount involved and the results obtained;
5. the time limitations imposed by the client or by the circumstances;
6. the nature and length of the professional relationship with the client;
7. the experience, reputation, and ability of the lawyer or lawyers performing the services; and
8. if the lawyer is the successor to a lawyer whose representation has terminated before the conclusion of the case, whether the client or the successor lawyer is to be responsible for payment of former counsel’s attorney’s fees and expenses, if any such payment is due.

Mass. R. Prof. C. does not prohibit a lawyer from entering into an arrangement for charge or collect any fee in an adoption matter, the payment or amount of which is contingent upon the securing a child for placement. See Mass. R. Prof. C. 1.5 (d). However, M.G.L. Ch. 210 §11A prohibits any person or entity other than a duly authorized agent or employee of the Department of Children and Families or Massachusetts (“DCF”) licensed placement agency to offer to place, locate or dispose of children for adoption; and, likewise, for accepting consideration for placing a child for adoption. Id.

In setting fees, licensed placement agencies must comply with 102 CMR 5.04 (6) and (7). 102 CMR 5.04 (6) provides that the agency must keep on file at the agency and with DCF its annual operating budget, specifying salaries of all full time employees and all bonuses and other benefits, including rent, mortgage payments, and payment for vehicles owned, rented or leased by the agency. However, there is no set regulation for the amount the agency may charge for its services.

102 CMR 5.04 (7) provides that the agency must have a written policy which includes specific information on fees, and states the fees charged shall be “reasonable.”

Although there is transparency in the amount of fees charged by agencies, there are no specific guidelines as to the amounts which may be charged. As a result, fees vary from agency to agency, depending upon the services offered.

Other states, which are not agency states, and allow attorneys to locate and place children for adoption, attorneys’ fees may often reflect the services offered by an agency. Those who seek services outside of Massachusetts will find that fees do vary; depending upon what is allowable in each individual state.

It is impossible to regulate the fees charged in adoptions from state to state. This has been an issue of the Academy of American Adoption Attorneys for a long time. The best the Academy could do is found in the Academy’s Code of Ethics (“Code of Ethics”) Section 7, appendix attached, which provides that the member [of the Academy] shall not enter into an agreement for, charge or collect an illegal or unconscionable fee. Academy members are prohibited from charging a finder’s fee for locating a birth parent. Academy members may not possess a financial stake in the success of any adoption in which the member is retained as counsel for any party. Code of Ethics, Section 8.

Observing the Rules of Professional Conduct
It was critical for the Academy to set out a Code of Ethics. Every annual meeting has some continuing legal education dedicated to ethics. Bad behavior by attorneys and other so-called adoption professionals is fodder for sensationalism and consequently taints all adoption practice. There are some specific Rules in Mass. R. Prof. C. which are particularly pertinent in the practice of adoption law. Although set out in the Appendix, the following are worth noting:

Rule 1.2 – Scope of Representation
It is critical, as an adoption attorney to seek the lawful objective of his/her client. However, also contained in the Rule is that a lawyer may limit the objectives of the representation if the client consents after consultation. Mass. R. Prof. C.1.2 (c). It is essential that particularly in adoption matters, that be put in writing. It is very common for an attorney to represent a client for the purposes of finalization, only. If not clearly stated, and the adoption disrupts for one reason or another, or the child is found to be of ill health, it is easy for the client to state that the attorney should have known, and breached his/her duty to the client. The finalization of an adoption in and of itself would not require, nor should it require the attorney to review medical records, or social psycho-histories, or examine the termination of parental rights, if termination has already taken place. Each of these factors can be trigger points to the unraveling of an adoption.

So too, an attorney must adhere to adoption practices and standards. Mass. R. Prof. C.1 (d) prohibits a lawyer from engaging or assisting a client in the conduct the lawyer knows to be fraudulent. Adoptions can be fraught with fraud. Consents must be taken voluntarily. Notice must be given to all known birth fathers. The notice should be published in a newspaper likely to give notice to the birth father, not some obscure newspaper, no one would read.

Rule 1.6 – Confidentiality of Information
The attorney is often privy to confidential information that may not be shared with his/her client. The attorney should take care in upholding the wishes of the birth parents and or the adopting family if confidentiality is requested. Carelessness is no excuse in violating the wishes of the parties in such a delicate situation.

Rule 1.14 – Client With Diminished Capacity
There may be times when an attorney is called upon to represent a birth parent who, or is aware that one of the parties to the adoption has diminished capacity. To ensure a permanent placement, the attorney must take steps, whether the person is his client or not, to protect that person’s rights and make sure the agency offers and provides the necessary services so that it is clear that upon making the decision to consent to an adoption and voluntarily give up parental rights, the person did so with the full understanding of the consequences of his/her act. This may mean having a guardian ad litem appointed by the court, having an independent evaluation conducted to ensure the person has the capacity to make such a decision, and/or having the person’s therapist or mental health professional be a part of the team. If a person does not have the mental capacity to execute a surrender, the surrender may be revoked.

1. The term expectant parent refers to the parent before giving birth to the child. A parent only becomes a birth parent once the child is born, and he/she has decided to make a plan for adoption for his/her child.
2. In the event the matter becomes contested, the court will appoint an attorney for the child.
3. Set out in the Appendix is the Code of Ethics of the American Academy of Adoption Attorneys, (“AAAA”) which as of this writing, is under reconsideration, specifically for the allowance of multiple representation of clients. The Code of Ethics of the American Academy of Assisted Reproduction Attorneys, (AAARTA”) a specialized division of AAAA specifically prohibits multiple representation.
4. Best practice is to have each expectant parent consult an independent attorney. If either of the expectant parents are 18 years or younger, although not mandatory, the court will expect independent representation or appoint a guardian ad litem to determine whether the expectant parent fully understood the implications when they executed the surrender.

Rights of Biological Parents and Adoptive Parents
Until the biological (1) parents’ rights are properly terminated, either voluntarily, or by judicial decree, the prospective adoptors (2) have no rights to the child, nor the right to make decisions on behalf of the child, mother or father. It is irrelevant that the mother and/or the father may have decided to make an adoption plan, and even chosen prospective adoptors prior to the time when their rights are to be terminated.

Unless and until a father’s name appears upon the child’s birth certificate, all decisions are deemed to be made by the mother. The law recognizes her as having sole legal and physical custody of the child. M.G.L. Ch. 209C §2. Massachusetts makes no provision for a pre-birth surrender. Moreover, the rights of the parents may not be terminated until four calendar days after birth. M.G.L. Ch. 210 §2.

Prospective adoptors must be cautioned to assume nothing until after the birth of the child, and the mother has entered into an adoption plan with the agency, who will then have the authority to place the child with them. Until such time, the expectant mother (3) and if involved, the expectant father must be given the utmost respect and deference to all of their decisions. Examples would include, an agreement that the prospective adoptors agreed that the prospective adoptors may be present during labor, and/or delivery. Expectant mother may change her mind, at any point. The best practice is to allow the expectant mother privacy. The quickest way to alienate an expectant/birth mother is to attempt to ignore that she gave birth to the child, this is her child until she determines otherwise, overrule a decision, or make decisions unilaterally. Likewise, similar behavior may also provoke the father.

Clearly, until or unless the father of the child establishes his paternity, absent mother’s assent, the father has no rights which will allow him to play a part in any decision making. However, unless it is clearly inappropriate to involve father because of a history of abuse and/or violent crime, father should be encouraged to participate.

The more involved both parents are in making the plan for adoption for the child, the more secure and better the placement. In such circumstances pertinent information may be exchanged with the prospective adoptors, and perhaps the establishment of some form of post adoption contact. M.G.L. Ch. 210 §6C. The purpose of post adoption contact is for the benefit of the child, not as an enticement to the parents to surrender the child for adoption.

Proving a Parent is Unfit in Contested Adoptions
Birth Father’s Challenge to the Adoption
For a child to be free for adoption, parental rights of both parents must be terminated. M.G.L. Ch. 210 §2; §3. Should a birth mother and/or birth father not consent to the adoption, if, either the Department of Children and Families or the licensed private adoption agency having custody of the child believe it is in the best interest of the child to be adopted, a Petition to Dispense with Parental Consent is filed with either the Juvenile Court or the Probate and Family Court (“Court”). M.G.L. Ch. 210 §2; M.G.L. Ch. 119 §24. The Court must determine whether the best interests of the child will be served by granting the petition for adoption, without parental consent. M.G.L. Ch. 210 §3.

M.G.L. Ch. 210 §3 and M.G.L. Ch. 119 §24, are the controlling statutes. M.G.L. Ch. 119 §24 refers to M.G.L. Ch. 210 §3, (4) for the standard to determine whether granting the Petition to Dispense with Parental Consent, or an Adoption Petition, without parental consent.

M.G.L. Ch. 210 §3 is set out in the Appendix. The standard of proof is by clear and convincing evidence. The seminal case being Stantosky v. Kramer, 455 U.S. 745 (1982).

Although M.G.L. Ch. 210 §3 (c) “…the court shall consider the ability, capacity, fitness and readiness of the child’s parents …” the courts have focused on parental unfitness or unwillingness to assume parental responsibility. Petition of the Department of Social Services to Dispense with Consent to the Adoption, 389 Mass. 793, 452 N.E.2d 497 (1983). Logically, if the parent lacked the ability and capacity and readiness to parent the child, hence the parent would be unfit.

A few of the factors, in and of themselves constitute grounds for dispensing with consent; namely, abandonment; conviction of murder or voluntary manslaughter or an assault constituting a felony which resulted in serious bodily injury to the child or another child of the parent. M.G.L. Ch. 210 §3(c).

Although the burden of proof lies with the petitioner, the respondent must be just as astute in proving their fitness. Courts need more than the facts of the case, to ensure the reasoning of the court was based upon the evidence presented in the event the judgment is appealed. The best evidence presented is from a qualified expert. Experts are essential in determining such factors under the statute as:

• Because of the lengthy absence of the parent, or the parent’s inability to meet the needs of the child, the child has formed a strong, positive bond with his substitute caretaker, the bond has existed for a substantial portion of the child’s life, the forced removal of the child from the caretaker would likely cause serious psychological harm to the child and the parent lacks the capacity to meet the special needs of the child upon removal. M.G.L. Ch. 210 §3(c) (vii).

• Whether there has been a willful failure to visit the child. M.G.L. Ch. 210 §3(c) (x).

• Whether a condition is reasonably likely to continue for a prolonged, indeterminate period and the condition makes the parent or other person whose consent is required, unlikely to provide minimally acceptable care of the child. M.G.L. Ch. 210 §3(c) (xii).

There are also instances where a birth mother who has executed an adoption surrender may seek to revoke her surrender. This is an extremely formidable task for several basic reasons, but not insurmountable. Such grounds may be mistake of law, fraud, duress, undue influence, lack of capacity, or impropriety on the face of the surrender, or in the execution of the surrender,

If the court determines parental consent is not needed, because the parent has been found unfit, the court must still determine whether the plan proposed is in the best interests of the child.

Should the birth parent succeed in having the surrender revoked on any of the grounds as set out above that does not preclude the prospective adoptors from filing a Petition for Adoption. M.G.L. Ch. 210 §1. The burden is then on the Petitioners, now the prospective adoptors to prove the parent’s unfitness by clear and convincing evidence.

Tackling Third Party Challengers
As stated above, in accordance with M.G.L. Ch. 210 §1, any person of full age, may petition the court for leave to adopt as his child another person younger than himself. However, there are some statutory exceptions. The person to be adopted may not be the husband or wife, or brother, sister, uncle or aunt, of the whole or half blood of the petitioner. M.G.L. Ch. 210 §1. In a third party challenge, the focus is then on whether the petitioners have the ability, capacity, fitness and readiness to assume parental responsibilities. M.G.L. Ch. 210 §3(c). Each factor for determining fitness would apply, and in making that determination, should there be no issue of fitness of any of the competing petitioners, the court would have to weigh heavily each petitioner’s plan for the child to determine which is truly in the child’s best interests, and how that comports which the child’s health and safety. M.G.L. Ch. 210 §3(c).

Often times, if appropriate, the competing petitioners may enter into a co-guardianship agreement, or an Agreement for Post-Adoption Contact or Communication, (“Agreement”) in accordance with M.G.L. Ch. 210 §6C; D & E. One caveat: parties should enter into post adoption contact, only if it is truly in the child’s best interest; with the implication that there is an established relationship between the child and the parties to the agreement; a meaningful one, that, should contact or communication be halted or disturbed, it would be harmful for the child. M.G.L. Ch. 210 §6C; D & E may have originally been implemented to appease birth parents as an offering in settlement. Nevertheless, the Agreement is NOT for the parents, but for the child. If all parties cannot approach the terms of the Agreement from a child-centered perspective, it will fail.

Procedures for Dissolution of Adoption
Unfortunately, there are times when the placement and finalization of a child for adoption fails because of a variety of reasons. Often times, the child may be extremely disruptive, destructive, and a harm to himself and/or members of the family. In such cases, the best course of action is to contact the agency that assisted in the placement of the child. Additionally social services agencies may have resources as well. The best result is finding a family who has the ability to assist this child, and is willing to take on the responsibility.

Should a suitable family be found, the process is basically the same as in any adoption. The prospective adoptors should have a home study, geared to their parenting a child with specific special needs. The agency conducting the home study must ensure that the family has the capacity to serve the needs of this child well. It is critical that there be full disclosure of all health related risks. It is very beneficial that the child and prospective adoptors spend significant time together, at different time intervals so the prospective adoptors can assess as best as possible their ability to parent the child, and set into place various resources to assist them.

If this is an interstate placement, there must be compliance with the Interstate Compact on the Placement of Children (“ICPC”) and; it is wise to check with the receiving state on what additional documentation, if any, will be required to approve the placement. Furthermore, another critical element will be who will take financial responsibility should the adoption disrupt. Massachusetts will not allow either the parents or the prospective adoptors to do so. Massachusetts prefers either the agency or attorney of the sending state to sign the ICPC 100A. The reasoning is clear: Massachusetts does not want to be responsible for a child from another state; in such high risk circumstances that another disruption may occur.

Withdrawal of Consent
Should a birth parent seek to withdraw consent, according to Massachusetts case law, she/he may only do so, with the permission of a Probate and Family Court Judge. In re Surrender of Minor Children, 344 Mass. 230 (Mass. 1962) (5). In doing so, the birth parent must file a Petition to Revoke Surrender, and establish that there was procedural impropriety on the face of the surrender; in the execution of the surrender; the execution of the surrender was conditional; or fraud, undue influence, mistake of law, or incapacity which prevented her/ him from understanding and voluntarily, and unconditionally, signing the surrender, thereby making it void. M.G.L. Ch. 210 §2.

It is critical at this point, if the child has been placed with a family, for the agency to make an assessment and determine whether the child should be removed from the home, and placed in temporary foster care. The assessment is based upon the likelihood of success on the merits, and whether keeping the child in the current placement is in the best interests of the child.

To Appeal, or Not To Appeal
The first step in handling any appeal is to file the notice of appeal timely. The notice of appeal must be filed within 30 days from the date of the date of the entry of the judgment, with the clerk for the lower court. Mass. R.A.P. 3, 4.

Once the notice of appeal has been filed, in addition to complying with the other applicable rules of appellate procedure, Mass. R.A.P., a determination must be made as to whether there will truly be any likelihood of success on the merits. To prevail on appeal, the appellant must demonstrate the judge abused his/her discretion, made an error, or was wrong as a matter of law.

In adoption matters, as in all child custody cases, the filing of the appeal does not stay the judgment. Absent the allowance of a stay, a court may act on the basis of a decree dispensing with consent to adoption. M.G.L. Ch. 210 §2A; §3. There is no right of an automatic stay of the order dispensing with the need for consent. Adoption of Duval, 46 Mass. App. Ct. 916, 706 N.E.2nd.312 (1999). Because Petitions Dispensing with Consent are grounded in custody and there is no automatic stay, Mass. R. Dom. Rel. P. 62(g) (ii), the Appellant must demonstrate to the Appeals Court, irreparable harm, should the stay not be allowed, and a likelihood of success on the merits.

1. Another party to the adoptive triad may be the legal father to child. If the mother was married at the time of birth, her lawful husband in the legal father, and his rights, in Massachusetts take precedence over the biological father, and any alleged father.
2. For simplicity sake, the term prospective adoptors shall refer to any single, married, or couples in a significant relationship, seeking to adopt.
3. It is this author’s opinion that the terms birth mother and birth father are inappropriate, until after the birth of the child and the plan for adoption is in process. Until the mother gives birth, and her plan for the child is adoption, she is NOT a birth mother. Likewise, for the father, if he is participating in the plan. Until such time, as with all pregnancies, the mother and father are expectant parents.
4. M.G.L. Ch. 210 §3, attached in Appendix.
5. Nevertheless, there have been rare and extreme circumstances when the agency who took the surrender may determine it is in the best interests of the child for mother’s surrender to be revoked, prior to any court intervention.

In the spring edition of The Brief, I shared a case where, on behalf of the adoption agency, I prevailed in terminating the rights of a birth father who came forward to “claim” his child. Given the particular facts and circumstances of the case, the Probate and Family Court found the birth father unfit to parent the child. The father filed an appeal in the Appeals Court, claiming that the judge abused her discretion, that she misapplied the law, and that the Plaintiff adoption agency failed to prove by clear and convincing evidence that the father was not fit.

The birth father then filed a motion to Stay the Judgment of the Probate Court, claiming that if the adoption were to go forward, prior to his appeal being heard, he would be irreparably harmed. After the motion was denied by the Probate Court, the request was repeated in the Appeal Court, with the birth father arguing that the stay was an automatic right, in accordance with the Rules of Civil Procedure.

Oddly, there is no case on point that specifically states whether the Rules of Civil Procedure or the Massachusetts Rules of Domestic Relations Procedure govern adoptions. If the Rules of Civil Procedure apply, an appellant is entitled to an automatic stay, except in equity actions. If the Massachusetts Rules of Domestic Relations Procedure apply, there is no automatic stay pending the appeal of a court decision.

Here, the pivotal question with respect to the right to a stay was whether the termination of parental rights was considered a custody matter, which is governed by the Massachusetts Rules of Domestic Relations Procedure. Arguing that the termination of parental rights was a denial of custody to a parent, and that the law should favor speedy resolution of custody issues, we prevailed on appeal and the motion for a stay was again denied.

At this point, you may be thinking, isn’t it obvious that the termination of parental rights is a custody issue? In a strictly logical world, yes. However, one cannot rely on assumptions (or even logic at times) in determining legal rights or when applying court rules. Hence, the Appeals Court functions not only to determine whether there was an abuse of discretion, or whether the law was misapplied, but also plays a key role in clarifying ambiguities and the law’s intent. Here, while the procedural minutiae can prove frustrating to many, there was an upside: a young boy was finally adopted by the family that had raised him since he was an infant. If you, or anyone you know, find themselves in a situation where an adoption has gone awry and need specialized assistance, please give me a call.

Representing an adoption agency, I recently had the pleasure of meeting a particularly intelligent and articulate young mother, who, with the full and loving support of her parents, told me her plan for adoption. She identified the birth father, explained the circumstances of the pregnancy, and described her unequivocal plan for adoption for the child.

She explained that there were many reasons why the father, who lived on a remote island, did not have the ability to raise the child. I cautioned her that, even after she signed a surrender, the rights of the father, whose exact location was then unknown, would still be intact until and unless I was able to convince a court he was not fit to parent the child, through the filing of a Petition to Dispense with Parental Consent.

In accordance with Massachusetts law, upon the filing of the Petition to Dispense with Parental Consent, meaning a judicial, involuntary termination of the father’s rights, a citation notifying the named father issued, and in the ordinary course, I had him served via email, Federal Express, and regular mail. At that time, the father refused to tell anyone where he lived, but, per statute, we served him at his last known and usual address.

After receiving the petition, the birth father objected to the adoption, filed a petition for custody of the child, and was appointed counsel to represent him. More than two years after the birth of the child, the case was tried in Massachusetts over five days.

The father never came to court or even attempted to travel to Massachusetts for the trial. The judge refused his request to be allowed to testify by cell phone, but he was permitted to listen to the proceedings by cell phone and testify using Skype.

With the assistance of two expert witnesses, one in attachment and bonding between the child and prospective adoptive family, who had cared for the child since shortly after his birth, and the other in immigration, the Court ruled in our favor and ordered termination of the father’s rights. The Court found that there was clear and convincing evidence that the father was not fit to parent this particular child. The Court’s decision was based, in part, on the fact that the father had made no effort to see the child for more than two years since his birth. More important, however, was the Court’s finding that the child would suffer emotional harm with the severance of the bond he had with the prospective adoptive family, and that the father was not able to meet the child’s special needs resulting from the disruption of his placement and adoption.

The father has now appealed, claiming the trial court abused its discretion in terminating his rights, in the face of what he called overwhelming evidence to the contrary. Stay tuned…

In keeping with my theme of the many costs of divorce, not listening to your attorney can be extremely hazardous to your wallet and your case. Anticipated outcomes grounded in the experience of another will simply lead to frustration and unrealistic expectations. Contrary to divorce legend, no case is the same as any other. Emotional aspects, child related issues and habits systemic to the relationship should not be treated in a cookie cutter fashion and given short shrift.

One of the most challenging aspects of divorce, for both the client and the attorney, is for the client to leave preconceived notions at the gate of the former marital home. Likewise, clinging to what is assumed to be “fair” is just as great an obstruction.

We at Konowitz & Greenberg work hard at educating our divorce clients throughout our representation of them, beginning with what we call the “Game Plan Letter.” The Game Plan Letter is specifically tailored to each client’s needs, concerns and specific issues in their domestic relations matter and sets forth certain plans, goals and expectations. Shortly after receiving the Game Plan Letter, the client meets with the attorney to review and discuss the letter in detail and help the client establish realistic expectations and goals.

Understandably, it can be difficult for clients to let go of what if’s and improbable outcomes in the midst of a divorce, particularly given the emotional, and often physical, chaos they are going through. That is why, at Konowitz & Greenberg, we routinely have “reality checks” with our clients. Reality checks are scheduled as often as required, based upon the needs and overall well-being of the client. Some clients have told me it is similar to being taken to the woodshed. We, on the other hand, view it as watching out for a best friend. Have high expectations, but listen to your new best friend.

1. Complete the required mandatory parenting class in the very early stages of your divorce.¹ In so doing, you will quickly learn how toxic it is for children to feel any responsibility for any aspect of the divorce. This also means children are never to be relegated to the role of messenger.

2. All children need someone other than their parents with whom they can discuss their thoughts, concerns, and fears during this difficult and sensitive time. When age appropriate, each child should be given the opportunity, in a safe environment, for counseling with a qualified professional.

3. Each parent should also be in counseling. As painful and costly as divorce may be, if viewed as a life cycle event from which one may learn and grow, each member of the family can ultimately benefit, either directly, or indirectly.

4. Above all, children need to hear from both parents that the divorce has nothing to do with them, and that they will always be loved unconditionally.

If you have any concerns about child or custody issues related to the breakdown of your marriage, or relationship with a significant other, please consider giving me a call. Here’s to cherishing and respecting your most valued asset: your children.

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¹The Massachusetts Probate and Family Court requires each divorcing parent with minor children of the marriage to complete a two session parenting class. Although no case may be scheduled for a Pre-Trial Conference without the completion of the parenting class, many parents do not accomplish that simple task until the eve of the divorce hearing, or, disappointingly, are given a “pass” to fulfill the requirement by a date certain after the divorce hearing.