After the U.S. Supreme Court's Lehr v. Robertson decision in 1983, do North Carolina adoption courts and child-placing agencies still have to notify a child's biological father of adoption or termination-of-parental-rights proceedings when the parents were not married?
Plain-English summary
In June 1983, the U.S. Supreme Court decided Lehr v. Robertson, 463 U.S. 248. The case involved a New York adoption proceeding where the biological father had not registered with a state putative-father registry and had only sporadic contact with the child and mother. The Court held that the federal Constitution did not require notice to such a father; only an unwed father who had developed an actual relationship with the child by "coming forward to participate in the rearing of his child" had a protected liberty interest.
The North Carolina Secretary of Human Resources asked the AG whether Lehr allowed North Carolina adoption courts and child-placing agencies to dispense with notice to biological fathers in out-of-wedlock cases. The AG's answer was no, in every case.
The reason was North Carolina's statute, not the federal Constitution. The 1983 General Assembly had amended G.S. 48-6(a)(3) effective May 11, 1983, just weeks before Lehr was decided. The amendment added explicit final sentences requiring that "Determination under G.S. 48-6(a)(3) that the adoption may proceed without the putative father's consent shall be made only after notice to him pursuant to G.S. 1A-1, Rule 4. This notice shall be titled in the biological name of the child."
Read in context with G.S. 48-7(a) (parents are necessary parties to adoptions) and G.S. 48-6(a)(1) and (2) (court orders adoption to proceed if parent fails to appear after notice or if putative father cannot establish parental right), the 1983 amendment created a notice-first regime. Even if the putative father could be shown by an ex parte administrative inquiry to fall outside the consent-required categories of G.S. 48-6(a)(3)(a), (b), or (c), the court still had to give him notice and an opportunity to be heard. The AG noted one important reason for this independent of consent: any putative father might be able to show the court that the proposed adoption was not in the child's best interests under G.S. 48-17 and G.S. 48-22.
The AG's analysis recognized that Lehr changed the federal constitutional floor, but stressed that the state-law floor was higher. G.S. 48-6(a)(3) was unambiguous, and Lehr did not preempt it; the state legislature was free to grant broader procedural rights than the Constitution required. The AG also placed the amendment in historical context. At the time the General Assembly acted, the Stanley v. Illinois (1972), Quilloin v. Walcott (1978), and Caban v. Mohammed (1979) line of cases suggested that all biological fathers had a constitutionally protected interest in their children. The North Carolina legislature wrote the notice requirement against that background. The arrival of Lehr a few weeks later did not unwrite it.
The same reasoning carried over to termination of parental rights under G.S. 7A-289.22 et seq. G.S. 7A-289.26 and G.S. 7A-289.27 required notice to all parents, including those whose identities or whereabouts were unknown. The same statutory-versus-constitutional point applied: state law was broader than Lehr's federal floor.
The opinion also clarified one related point. There was no requirement that TPR precede adoption. As a tactical matter, the State Division of Social Services often pushed for TPR first in agency adoptions, and G.S. 48-5 supported that route, but it was not legally required. Agencies could proceed directly with adoptions whenever counsel thought it best.
Currency note
This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Chapter 48 was substantially rewritten in 1995 (effective 1996), reorganizing the consent-to-adoption framework. The current adoption code is in Chapter 48 of the General Statutes with notice provisions in G.S. 48-2-401 et seq. The TPR statute was recodified to Chapter 7B (Juvenile Code) effective 1999. The putative-father notice requirement persists in modern form, with refinements through cases like In re Adoption of Baby Boy Scearce, 81 N.C. App. 531 (1986), In re Adoption of Anderson, 360 N.C. 271 (2006), and others. Modern practice also incorporates the central registry of putative fathers maintained by DHHS. Lehr v. Robertson remains good federal law. Anyone working a current adoption or TPR case involving an unmarried father should consult current Chapter 48 and Chapter 7B and the most recent NC appellate authority.
Background and statutory framework
The legal status of unmarried fathers underwent a profound shift in the 1970s. Before Stanley v. Illinois (1972), the unmarried father had essentially no constitutional standing in his child's life; his only legal route was to legitimate the child by marrying the mother or to adopt under specific procedures. Stanley changed that by recognizing that the unmarried father had a constitutionally protected liberty interest at least in some circumstances, an interest that triggered due process requirements before the state terminated his relationship.
The post-Stanley cases sketched out the contours of that interest. Quilloin v. Walcott (1978) held that consent of a never-married father who had not legitimated his child was not constitutionally required for a stepfather adoption. Caban v. Mohammed (1979) struck down on equal-protection grounds a New York law that distinguished between unwed mothers and unwed fathers for adoption-consent purposes. The pattern that emerged was that the depth of the father's actual involvement in the child's life mattered more than the bare fact of biological paternity.
Lehr v. Robertson in 1983 was a further refinement. Justice Stevens's majority opinion drew a clearer line: a putative father's liberty interest arose only when he "comes forward to participate in the rearing of his child." Without that participation, the "mere existence of a biological link" was not enough. Lehr effectively held that states could deny notice to never-involved putative fathers without violating federal due process.
North Carolina's 1983 legislative response had been drafted before Lehr came down. The General Assembly's intent was to require notice in all cases, regardless of the father's level of involvement. The 1983 amendment to G.S. 48-6(a)(3) was the operative statute, and it survived Lehr because Lehr set a constitutional floor, not a ceiling. North Carolina was free to give putative fathers more procedural protection than the federal Constitution required.
The AG opinion was the official guidance to state agencies after Lehr. Without this opinion, public and private adoption agencies might have read Lehr to mean they could skip notice in clear-cut cases. The AG made clear they could not.
The opinion has practical significance beyond the consent question. Because the notice was required even where the consent question could be resolved ex parte, the putative father got an opportunity to argue best interests under G.S. 48-17 and G.S. 48-22. This procedural opening gave fathers who had been only marginally involved a chance to participate in adoptions of their children without necessarily having veto power.
Common questions
Did this opinion give putative fathers a veto over adoptions in North Carolina?
No. The 1983 amendment required notice; it did not change the substantive consent rules in G.S. 48-6(a)(3)(a)-(c). A father whose consent was not required under those substantive rules (because paternity had not been judicially established, the child had not been legitimated, and the father had not provided substantial support or consistent care) could still have the adoption proceed without his consent. He just had to be given notice first.
What if the putative father's identity was unknown?
The opinion noted that the TPR statute required notice "even to those parents whose identities or whereabouts are unknown." Service by publication under Rule 4 was the standard mechanism. The 1983 amendment to G.S. 48-6(a)(3) used the same Rule 4 reference, so service by publication on an unknown putative father was available in adoptions too.
Could the mother sign away the putative father's notice rights?
No. The notice rights were statutory and tied to the father, not the mother. The mother could consent to the adoption herself but could not consent on the father's behalf.
Did this opinion address paternity disputes?
Not directly. The putative father might or might not actually be the biological father; that was a separate question. The notice rule applied to anyone identified as the putative father, leaving paternity disputes to be sorted out in the adoption or TPR proceeding itself or in a separate paternity action.
What if the putative father appeared after notice and tried to assert parental rights?
He could. G.S. 48-6(a)(2) allowed a court to dispense with consent if the putative father appeared but could not establish a parental right under (a)(3). His appearance also gave him an opportunity to argue the adoption was not in the child's best interests under G.S. 48-17 and G.S. 48-22, an avenue independent of the consent question.
Source
- Landing page: https://ncdoj.gov/opinions/social-services-adoptions-juveniles-notice-to-putative-fathers/
Citations
- G.S. 48-6(a)(3) (consent of putative father in out-of-wedlock cases; 1983 amendment)
- G.S. 48-7(a) (parents as necessary parties)
- G.S. 7A-289.22 et seq. (termination of parental rights)
- 1983 Session Laws, c. 292, s. 1 (the amendment)
- Lehr v. Robertson, 463 U.S. 248 (1983)
- Stanley v. Illinois, 405 U.S. 645 (1972)
- Quilloin v. Walcott, 434 U.S. 246 (1978)
- Caban v. Mohammed, 441 U.S. 380 (1979)
Original opinion text
Requested By: Sarah T. Morrow, M.D., M.P.H. Secretary North Carolina Department of Human Resources
Questions:
- In light of the 6/27/83 decision by the U.S. Supreme Court in the case of Jonathan Lehr v. Lorraine Robertson, et al., and while giving consideration to the 1983 amendment to G.S. 486(a)(3), under what circumstances, if any, in adoption cases may North Carolina adoption courts dispense with:
(a) notice to biological fathers of children born out-of-wedlock; and
(b) an order that the adoption may proceed without the father's consent?
- In light of this same decision, under what circumstances, if any, may public and licensed private child-placing agencies dispense with notice of a subsequent termination of parental rights action against biological fathers of children born out-of-wedlock?
Conclusions:
In light of G.S. 48-6(a)(3), North Carolina courts may not under any circumstances dispense (a) with notice to the biological father of a child born out of wedlock or (b) with an order that the adoption may proceed without the father's consent.
- In light of the notice provisions in the termination of parental rights law, G.S. 7A-289.22, et seq., public and private child-placing agencies may not under any circumstances dispense with notice of termination proceedings to putative fathers.
Except in special circumstances, all parents are necessary parties to adoptions.
"Except as provided in G.S. 48-5, 48-6 or 7A-288, and if they are living and have not released all rights to the child and consented generally to adoption as provided in G.S. 48-9, the parents or surviving parent or guardian of the person of the child must be a party or parties of record to the proceeding and must be filed with the petition."
G.S. 48-7(a).
Prior to May 11, 1983, G.S. 48-6(a) provided as follows:
"(a) The court shall determine whether the parent or parents of a child must give written consent to adoption of said child in accordance with the following provisions:
(1) If a parent who has been served with notice pursuant to G.S. 48-7 fails to appear at the hearing by the date and time specified in the notice, and has not given a written consent to adoption, the clerk shall enter an order with supporting findings of fact allowing the adoption to proceed without the said parent's consent.
(2) If a putative father appears at the hearing and cannot establish a parental right in accordance with subsection (3) below as to why his consent should be necessary, the court shall enter an order with supporting findings of fact allowing the adoption to proceed without the said putative father's consent.
(3) In the case of a child born out of wedlock the consent of the putative father shall not be required unless prior to the filing of the adoption petition:
a. Paternity has been judicially established or acknowledged by affidavit which has been filed in a central registry maintained by the Department of Human Resources; provided, the court shall inquire of the Department of Human Resources as to whether such an affidavit has been so filed and shall incorporate into the case record the Department's certified reply; or
b. The child has been legitimated either by marriage to the mother or in accordance with provisions of G.S. 49-10, a petition for legitimation has been filed; or
c. The putative father has provided substantial financial support or consistent care with respect to the child and mother."
Effective May 11, the General Assembly adopted the following provisions as new final sentences to subdivision (a)(3) of G.S. 48-6:
"Determination under G.S. 48-6(a)(3) that the adoption may proceed without the putative father's consent shall be made only after notice to him pursuant to G.S. 1A-1, Rule 4. This notice shall be titled in the biological name of the child."
1983 Session Laws, c.292, s.1 (emphasis added).
This amendment to G.S. 48-6(a) says that there must always be notice to a putative father before an adoption can proceed without his consent. The statute contains no exceptions.
Interestingly, the notice is required even in situations where the facts affecting the need for consent could be determined by an ex parte administrative inquiry. See, e.g., G.S. 48-6(a)(3)a. This suggests that the notice is required for other reasons in addition to notifying the putative father about the court's inquiry into the need for his consent. One such reason is the fact that no adoption order can be entered unless it is in the child's best interests. G.S. 48-17 and G.S. 48-22. Irrespective of the putative father's rights to consent, a particular putative father might be able to show a court that adoption is not in his child's best interests.
In reaching our conclusions we are aware of Lehr v. Robertson, U.S., 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). That case was decided by the United States Supreme Court on June 27, 1983, shortly after G.S. 48-6(a)(3) was amended. It holds that a putative father's constitutionally protected liberty interest in his child arises "[w]hen an unwed father demonstrates a full commitment to the responsibilities of parenthood by 'com[ing] forward to participate in the rearing of his child. . . .'" Id., U.S. at ___, 103 S.Ct. at 2993, 77 L.Ed.2d at 626. The "mere existence of a biological link" does not create a paternal interest which automatically deserves the constitutional protection of prior notice and an opportunity to be heard. Id.
As a matter of both analytical perspective and historical interest, the Lehr decision deviates from the reasoning in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) and Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979). These cases all held or suggested in dicta that a putative father's liberty interest in his children arose out of the biological fact of paternity. See also Lehr v. Robertson, U.S. at , 103 S.Ct. at 2999, 77 L.Ed.2d at 633 (White, J., dissenting). Thus, at the time G.S. 48-6(a)(3) was amended, the Supreme Court decisions were generally understood to say that a putative father had a constitutional right to notice of an adoption proceeding concerning his child.
Now that Lehr has been decided, a putative father's constitutional rights are more narrowly defined. However, in North Carolina, G.S. 48-6(a)(3) unambiguously creates a statutory right to notice. Lehr has no effect on the statute.
In sum, under G.S. 48-6(a)(3) neither a court nor a public or private adoption agency may dispense with putative father's notice of the adoption proceedings concerning his child. Only after giving notice can the court issue orders dispensing with the father's consent. See G.S. 48-6(a)(1) and (2). Lehr is simply irrelevant to these present statutory rights.
Turning to the termination of parental rights statute, G.S. 7A-289.22, et seq., we find that there is also a requirement that all parents be served with notice of the proceedings, even those parents whose identities or whereabouts are unknown. G.S. 7A-289.26 and G.S. 7A-289.27. For the reasons stated above in the discussion of G.S. 48-6(a)(3), it is also necessary to give notice of termination of parental rights proceedings to putative fathers. Again, as a matter of historical interest and analytical perspective, we note that the termination statute was adopted five years after Stanley v. Illinois, supra, was decided. Of course, Lehr v. Robertson, supra, does not repeal state statutory rights created by the termination of parental rights law any more than it nullifies rights created by the adoptions statute.
Finally, we note that there is no requirement that a putative father's parental rights be terminated under G.S. 7A-289.22, et seq., before adoption proceedings are started. We understand that this is often done as a matter of tactics, see G.S. 48-5, and we understand that the State Division of Social Services urges that this be done as a matter of policy in cases where a public agency is responsible for the adoptive placement; but it is not an indispensable legal step. Therefore, agencies may proceed directly with adoptions whenever it seems best to them and their counsel to do so. Lehr has no effect on this decision.
RUFUS L. EDMISTEN
Attorney General
Steven Mansfield Shaber
Assistant Attorney General