Lisa Kelly, Conceiving Nonmarital Fathers' Rights: An Inquiry into the Constitutionality of West Virginia's Adoption Statute, 102 W. Va. L. Rev. 667 (2000), https://digitalcommons.law.uw.edu/faculty-articles/321
West Virginia Law Review
adoption, consent, constitutionality
When do the rights of nonmarital fathers to their children quicken? Is it only upon the father's establishment of a substantial economic and emotional relationship with his child? Do such fathers' interests gel only after the ink has dried on an order or affidavit in which paternity is established or acknowledged? Do there fundamental rights lie inchoate in the beating hearts of the newborn or gestating child? How should the law regard the role of the nonmarital father in the adoption context? Should there be one standard for all or two-one for fathers of infants and another for fathers or older children? There are a few of the questions with which this article struggles in attempting to unravel whether West Virginia's current treatment of nonmarital fathers in the adoption context is constitutional.
In Part II of this article, I will demonstrate the West Virginia legislature's ambivalence by exposing the contradictory provisions within the adoption statute itself. Under one statutory section, only certain types of nonmarital fathers are entitled to consent while under another, all biological parents are given the right to be approached for consent. Under one section, only certain types of nonmarital fathers are entitled to notice while under another, all unknown fathers, once identified, are entitled to notice. It is hoped that this section, at the very least, will persuade the legislature to clarify some of these ambiguities in order to achieve greater certainty. Adoption practice must have certainty because the lives of children, who are at the heart of this legal enterprise, demand at least that much.
In Part III of this article, I will review the ambivalent judicial gaze that has been cast upon the constitutional rights of nonmarital fathers. Both the United States Supreme Court and the West Virginia Supreme Court of Appeals have issued opinions affecting the rights of nonmarital fathers in the adoption context. The United States cases are decades older; the Court has since changed; and a recent decision may portend a different direction. The West Virginia cases are more recent and go a little further than the United States Supreme Court in extending fundamental rights to nonmarital fathers. By reviewing the decisions of both Courts, I hope to divine some consistent constitutional theory and then apply it to the multiple interpretations of our statute.
In Part IV, I will offer a variety of solutions to resolve the contradictions within the West Virginia statute and insure the statute's constitutionality against different types of challenges. None of these solutions are problem-free and so both the advantages and disadvantages associated with them will be discussed.
Finally, the goal of this article is not to critique the developing constitutional standards, simply to discern and apply them.'