This story, no matter where you’re coming from, is incredibly sad (although it should be noted that the circumstances are very rare). A 20-year-old college student in Virginia gets pregnant, gives birth and places the baby for adoption. The baby, Emma, is placed through a Utah adoption agency. The baby’s father, John Wyatt, petitioned for custody eight days after Emma’s birth. A Virginia court granted custody, and ordered the baby returned. A Utah judge granted temporary custody to the adoptive parents, saying that Wyatt did not assert his parental rights on time. Wyatt has never seen his daughter; she is now 14 months old, and has only known her adoptive parents. Wyatt’s appeal is pending in Utah. And it’s not just a legal mess, but an ideological one — part of the reason that Wyatt is unable to attain custody of his daughter is because Utah privileges two-parent families over single fathers:
Joan Hollinger, a University of California at Berkeley professor and a leading authority on adoption law, called Utah’s decisions in the Baby Emma case “outrageous” because Wyatt filed for custody in Virginia just eight days after Emma’s birth. Utah laws and court decisions, she said, “make it virtually impossible for an out-of-state father to prevent the adoption of an out-of-wedlock child when the mother is determined to go forward.”
Utah is culturally conservative, and lawyers say the powerful Church of Jesus Christ of Latter-day Saints, with its emphasis on family values, has strongly encouraged adoption-friendly laws. “The Utah statutes can be harsh, but they are looking at what’s best for the child: stable placements and two-parent families,” said David Hardy, a lawyer for LDS Family Services, a Mormon Church-affiliated adoption agency that is among the nation’s largest.
That is a very scary standard, and can be used against a wide variety of people — single dads, single moms, low-income families, same-sex parents, and on and on. There also seems to be an assumption that men just aren’t as naturally adept at parenting as women are, which I’m not sure is something we want to encode into law. My initial reaction, like that of a lot of folks, is that this is horribly unfair.
At the same time, though, it really is not as simple as people like Radley Balko make it sound (although he makes many compelling points). He writes:
Speaking of which, I’m trying to figure out how Fahland—and possibly the Utah adoption agency—aren’t guilty of kidnapping. I’ll concede that I know very little about family law, and perhaps the law is as perverse here as it can be in other areas. But Wyatt is the child’s father. Once Fahland gave up her custody rights, one would think that full custody rights reverted to Wyatt. From the article, Fahland and the adoption agency appear to have conspired to make the handoff before Wyatt was even aware his child had been born, and before he could prevent the adoption from happening. If the roles had been reversed, and Wyatt had swiped the kid out of the nursery and rushed her off to an out-of-state adoption agency to, say, prevent himself from having to pay child support, is there any doubt he’d be charged with kidnapping?
I’m also not an expert in family law, and the law does differ from state to state, but there are serious public policy concerns with the proposal that once a biological mother gives up custody that it should automatically revert to the father, or the idea that a woman placing a baby for adoption without the father’s consent is doing something equivalent to a man swiping a baby from a nursery and taking it to an out-of-state adoption agency.
First, if the father is not known, it isn’t clear who custody should revert to. It doesn’t necessarily make a lot of sense to spend state resources tracking down fathers who, in many cases, do not want to be found. It also leaves the child in limbo while the father is being located, which is definitely bad for the child — the options are basically to stay with the birth mother (who probably does not want to spend days or weeks or months bonding with a child who she has decided to place for adoption); give the child to the potential adoptive parents (who probably do not want to spend days or weeks or months bonding with a child that they may have to give back); or place the child in foster care (which is not a great environment for any child, and especially not for newborns). If there is no father named on the birth certificate, and no man registers as the potential father, then it is arguably better for all involved to proceed with the adoption instead of attempting to track down the father. That said, in my opinion, in standard adoptions where the decision to place the baby is made in advance of birth, adoption agencies should have a legal obligation to at least take minimal steps to make sure that the father is not involved and does not want custody. If they can’t locate him then they can’t locate him, but if they are aware of his identity then they should be required to allow him to decide whether or not to sign away his parental rights. That, apparently, is not the requirement in Utah.
The second issue, though, is the tendency of states (and most Americans) to want to encourage adoption. We love the idea of adoption! It means no abortion, and it means Giving A Miracle to another family. Except when a case like this comes along, there’s almost no discussion of how difficult adoption can be, and of all the competing interests at play. Requiring that the father of the child automatically get custody if the mother relinquishes her parental rights does not incentivize adoption — and it’s not because mothers are man-hating bitches who want to harm the fathers of their children. Obviously it varies from case to case, but perhaps it’s because the baby’s father is abusive, or someone that the mother doesn’t believe is fit to raise a child; perhaps she wants the best possible outcome for her child, and she believes that neither she nor the baby’s father can provide that. Perhaps she’s a 20-year-old college student, and the father of the baby is her ex-boyfriend, and she wants to be able to remover herself physically and emotionally from the baby as much as possible; if her ex raises the child, that won’t be possible. Placing your child to be raised by someone else is incredibly difficult. But a big part of the reason why women place their children for adoption is because they do not believe they can raise those children themselves, for whatever reason, or they don’t want a child at that time; watching the child be raised by an ex, or by someone the woman barely knows, or by someone she believes to be unfit or abusive, is almost unimaginable. Add in the fact that she could be financially indebted to that person for 18 years and just not having the baby to begin with begins to sound a whole lot more appealing.
I’m not saying that “it’s hard” is a valid argument against fathers having parental rights or against women having to pay child support; it isn’t, and fathers do have parental rights in every state in this union, and women often do have to pay child support. However, all of those concerns play into our adoption laws. Because if it’s the law that parental rights are going to automatically revert to the father if the mother places the baby for adoption, regardless of whether the father has actually asserted his rights, you’re going to have a lot of women who are no longer going to view adoption as a viable option.
Many states also have Safe Haven laws which allow for relinquishment of a child, often anonymously, as a way to deter child abuse and murder. Again, it’s a policy concern: The welfare of the child comes before the rights of the noncustodial parent.
Third is the fact that while law is often made in the courts based on marginal cases, legislation is (at least generally, in theory) passed to encompass the usual set of circumstances. The reason these kinds of cases are news is because they just do not happen very often. Generally, adoptions are either consented to by both parents, or the father is entirely out of the picture; generally, the mother is much more on the hook for everything that comes with pregnancy and childbirth than the father is. So it makes sense, from that perspective, to incentivize adoption and expedite the adoption process, perhaps at the expense of not alerting a father to the existence of a child he wants to parent, since the instances of a father wanting full custody of a child he does not know exists (borne of a woman with whom he presumably has no contact) is not all that common. I’m not convinced that’s anywhere near an ideal policy, but I do understand the public interest concerns that underlie it.
Finally, the reality is that women do tend to take greater responsibility for the children they have — in part because of biological mandate, and in part because of sociocultural factors. Mens Rights activists harp on the statistic that more women are granted custody of their children than men are — but when you actually get down to it, men simply don’t petition for custody very often (and when they do, they’re very likely to get it). There are many more single mothers than single fathers. Men, for a variety of physical and cultural reasons, are able to walk away from their offspring easier than women are. And more often, they do. In a perfect feminist world that wouldn’t be the case, but the fact that it is the case here and now brings up sticky legal issues of what the law should reflect and seek to do. Should the law reflect the existence of these differences, at the risk of further entrenching inequality? Or should the law be blind to real difference and treat parents identically, at the risk of horribly unjust outcomes? It’s not as simple as “treat us all equally” when we aren’t equally situated to begin with, and when “equality” can look awfully different from other angles.
There are also questions of fairness and labor at play. Given that the man’s role in pregnancy and childbirth can be as minimal as sperm donation, it might not make sense to give him the same rights as the person who spent nine months carrying and then birthing that child. There’s an argument — and I’m not sure I totally buy it, but it’s interesting — that the right to make the decision to place a child for adoption should disproportionately fall to the woman, because of the disproportionate labor she put into creating that child. Why shouldn’t a woman, after nine months of pregnancy and childbirth and all the attendant economic, physical and emotional costs, have greater rights to make adoption decisions than a man, unless that man can prove that he was financially and emotionally supportive throughout the pregnancy?
All of that said, here? Utah’s policy sounds totally backwards, and from what I’ve read, it sounds like (a) Wyatt should have gotten custody of his child a year ago; (b) the adoption agency operated totally unethically and should probably be investigated; and (c) I really feel for the adoptive parents who of course want to keep Emma, but if they knew about this situation when or very soon after adopting Emma, they also have some explaining to do, ethics-wise — I really do believe that adoptive parents have an obligation to make sure that the adoption is entered into freely. And while I’m sure Men’s Rights and Father’s Rights blogs are already pinning this one on the Feminist Court System (TM + hahaha), it has to be noted that the entire reason this policy exists is because of anti-feminist beliefs about traditional gender roles and ideal families. So while men’s groups are angry that Utah’s laws are not great for single men, they’re also doing their best to reinforce the idea that women and men are Totally Naturally Different, and they often partner with social conservatives in their opposition to feminism — and that’ll bite you when part of what we culturally attach to womanhood is parenthood. So long as we keep emphasizing the idea that women are Naturally Nurturing and men are Tough and Good At Providing, our laws regarding parental rights will remain imperfect. Perhaps more importantly, the reality of parental and reproductive rights and obligations will remain imperfect — and every once in a while, it’s not going to be women who are the ones getting screwed.
Point being, if we want logical adjustments of the law when it comes to the rights of biological fathers? It may also make sense to make serious cultural adjustments.
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