43-104.22. Child born out of wedlock; hearing; paternity of child; father's consent required; when; determination of custody.

At any hearing to determine the parental rights of an adjudicated biological father or putative biological father of a minor child born out of wedlock and whether such father's consent is required for the adoption of such child, the court shall receive evidence with regard to the actual paternity of the child and whether such father is a fit, proper, and suitable custodial parent for the child. The court shall determine that such father's consent is not required for a valid adoption of the child upon a finding of one or more of the following:

(1) The father abandoned or neglected the child after having knowledge of the child's birth;

(2) The father is not a fit, proper, and suitable custodial parent for the child;

(3) The father had knowledge of the child's birth and failed to provide reasonable financial support for the mother or child;

(4) The father abandoned the mother without reasonable cause and with knowledge of the pregnancy;

(5) The father had knowledge of the pregnancy and failed to provide reasonable support for the mother during the pregnancy;

(6) The child was conceived as a result of a nonconsensual sex act or an incestual act;

(7) Notice was provided pursuant to sections 43-104.12 to 43-104.14 and the putative father failed to timely file a Notice of Objection to Adoption and Intent to Obtain Custody pursuant to section 43-104.02;

(8) The putative father failed to timely file a petition to adjudicate a Notice of Objection to Adoption and Intent to Obtain Custody pursuant to section 43-104.05;

(9) Notice was provided to an adjudicated biological father through service of process under applicable state law and he failed to object to the adoption or failed to appear at the hearing conducted under section 43-104.25;

(10) The father executed a valid relinquishment or consent to adoption; or

(11) The man is not, in fact, the biological father of the child.

The court shall determine the custody of the child according to the best interest of the child, weighing the superior rights of a biological parent who has been found to be a fit, proper, and suitable parent against any detriment the child would suffer if removed from the custody of persons with whom the child has developed a substantial relationship.

Source

Annotations

An acknowledged, legal father who has the right to consent to an adoption under another state's paternity determination is not a "man" within the meaning of subsection (11) of this section. Jesse B. v. Tylee H., 293 Neb. 973, 883 N.W.2d 1 (2016); In re Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016).

Subsection (11) of this section does not authorize a county court to disestablish an acknowledged father's parental rights under another state's paternity determination. Jesse B. v. Tylee H., 293 Neb. 973, 883 N.W.2d 1 (2016); In re Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016).

The effect of a finding of abandonment is that the putative biological father has no further standing to raise objections in the matter of the adoption. In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205 (2010).

Pursuant to subdivision (7) of this section, for an adoption to proceed, the consent of the biological father who has established a familial relationship with his child is required unless, under section 43-104(2), the party seeking adoption has established that the biological parent: (1) has relinquished the child for adoption by a written instrument, (2) has abandoned the child for at least six months next preceding the filing of the adoption petition, (3) has been deprived of his or her parental rights to such child by the order of any court of competent jurisdiction, or (4) is incapable of consenting. In re Adoption of Corbin J., 278 Neb. 1057, 775 N.W.2d 404 (2009).

Subsection (7) of this section does not apply to a father who has been adjudicated the child's father in a paternity action. In re Adoption of Jaden M., 272 Neb. 789, 725 N.W.2d 410 (2006).