Case Law Development: Arkansas Supreme Court Rules Father Has No Rights to Child Born Without His Knowledge As He Failed to Adequately Protect His “Opportunity Interest”

The Arkansas Supreme Court, over the dissent of the Chief Justice, ruled Thursday in  Escobedo v. Nickita  that a biological father has no right to the custody of his biological daughter born out of wedlock because he failed to take “positive steps” to legitimate the child. It held that his "opportunity interest" in forming a relationship with his infant daughter was "adequately protected by his receipt of an adoption notice four business days before an adoption hearing regarding a child he did not know existed. He failed to adequately protect those interests.

The parties had a brief romantic relationship which resulted in an unprotected sexual encounter in March of 2004. The biological father, Mr. Escobedo, did not see or talk with the mother after this encounter, and did not know that the encounter had resulted in her pregnancy. A petition for adoption was filed on November 19, 2004, two weeks before the baby was born and almost a month before Mr. Escobedo knew that his encounter had resulted in a pregnancy and consequent birth.

Mr. Escobedo contended that once he found out he might be the father, due to the exclusion of the biological mother’s boyfriend as the father, he took positive steps to legitimate the child including paternity testing and registering with the Arkansas Putative Father Registry. However, the court found that his paternity petition was filed a month after the adoption petition and a week after the adoption hearing. His registry with the putative-father registry was still later. Consequently, the majority ruled that Mr. Escobedo had taken no significant steps to prepare for the custody of the child, which is required under Arkansas law.

In his dissent, Chief Justice Hannah said that under Lehr v. Robertson, 462 U.S. 248, 262 (1983), a putative father's attempt to establish a substantial relationship with his child determines the constitutional protection afforded the relationship. In this case, because of the short notice and the subsequent actions taken by the father following actual notice, Lehr provided him with constitutional protection.  In Lehr the Court ruled that the State has an obligation to adequately protect an unwed father's "inchoate interest in assuming a responsible role in the future of his child."  Escobedo v. Nikita, No. 05-315, Supreme Court of Arkansas. The Slip Opinion of the Arkansas Supreme Court can be found here (last visited March 11, 2006, reo)