Before an adoption can be completed, the biological parents of the child need to either consent to the adoption or have their parental rights terminated by the court. However, this can be more complicated than it seems. Sometimes the biological father of a child may be unknown or impossible to locate. Partly in order to address that problem and facilitate adoptions under these circumstances, states have laws concerning “willful failure.”
Willful failure means that a biological parent (most commonly the father) has willfully failed to take on the role of a parent. Thus, their consent to the adoption is not necessary. In fact, depending on the circumstances, they may not even be notified of the adoption.
What Constitutes Willful Failure?
States differ as to what specifically constitutes willful failure, which is also sometimes called “willful failure to support the child”. Generally, willful failure is when a parent fails to communicate with or provide financial support to the child for a reason besides poverty for a certain period of time. Often, the time period is one year, but specific time periods vary by state. Courts will usually also count financial and emotional support of the biological mother during pregnancy as support of the child.
What about when the father does not know of the child? This is a scenario that comes up frequently. Some biological fathers may not even be aware of the existence of the child. While courts may be sympathetic to this situation, they also make an effort to protect the interest of the child to be in a safe and permanent home. Therefore, it is considered the responsibility of the potential biological father to follow up with the potential biological mother to see if she is pregnant and, if so, to support the child.
How to Contest a Finding of Willful Failure
If you have been found to have willfully failed to support your child, and the court has terminated your rights because of it, you may have some recourse depending on the specific circumstances. Generally, family courts prioritize the “best interests of the child” in all proceedings, including adoption proceedings. However, there are also other laws and rights that they must respect. One of the most important rights recognized by the government is the right to parent your child. Therefore, in these situations, the court will need to balance the interests and rights of the parties.
For example, if the biological father does not become aware of the child until long after the adoption has been completed, the court is extremely unlikely to disturb that placement. However, if the adoption is still pending, and the biological father has some kind of explanation for failing to provide support, the court may consider reversing the determination of willful failure. In these cases, the biological father will usually need to prove willingness and ability to properly care for the child full-time.
Generally, courts will find a willful failure only when there has been absolutely no or very little support from the biological parent. In other words, you do not need to provide 50% or more of the support of the child to be considered a parent. In a 2017 case in Ohio, for example, a father’s willful abandonment determination was overturned in part because he sent a check for $100 to the biological mother of the child for “child support.” However, courts will look at all of the relevant circumstances when deciding whether there has been a willful failure to care for and support the child.