July 30, 2006
Case Law Development: Father's Consent Necessary to Adopt Child Born to Common Law Marriage
In a case presenting interesting possible intersections between the adoption code and common law marriage doctrine, the Alabama Court of Appeals held that an aunt and uncle seeking to adopt their nephew had failed to prove that they had obtained the consent of the child's father to the adoption. The child had been removed from the parents as an infant. The child's paternal aunt and uncle took custody of the child and obtained a default judgment terminating mother's parental rights. In their adoption action, they argued that father's consent to the adoption was unnecessary because he had failed to timely register in the putative father registry. However, father claimed he and mother were married. The court noted that registration as a putative father is necessary only if a child is born out of wedlock, so that if indeed father was married to mother, his consent to the adoption would be required. In a footnote, the court comments that, because common law marriages in Alabama are co-equal with ceremonial marriages, "if the father and the mother, as the father contends, were married by either means, and the child was born "during the marriage," not only would Alabama's paternity law deem the child to have been born to the father, but Alabama's Adoption Code would also classify the father as a "presumed father" whose consent to a proposed adoption of the child would be necessary."
S.J.S. & J. v. B.R. & S., 2006 Ala. Civ. App. LEXIS 457 (July 28, 2006) bgf
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