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Tuesday, March 15, 2011

Unwed Fathers and Parental Rights

Bias in the law.

Two-year-old Baby Vanessa has been embroiled in legal battles almost since her first breath. Last week the conflict continued in a California court where no one was backing down. If Baby Vanessa’s case goes to the U.S. Supreme Court, as experts predict, then it may well shake up adoption procedures and redefine father’s rights.

What is the point of contention? A father wants his child. An estimated one in three American babies are born to unwed parents, and many are put up for adoption. While the mother’s parental rights are automatically assumed, the legal status of unwed fathers is vague and shifting. Indeed, this is such an ignored area of law that no statistics exist on how many fathers seek to raise their own children when the birth mothers relinquishe parenthood.

Advocates for men’s rights complain bitterly about a rampant anti-father bias in the adoption system that often allows women to adopt out their children unilaterally. In theory a known father must sign away custodial rights before an adoption can proceed. In practice,  agencies often make no effort to include a father who is not palpably present.

Father Unknown?

Baby Vanessa biological mother, Andrea Conley, gave up the Ohio newborn to an adoption agency in 2008, claiming in documents that she did not know the father’s identity. Three days later adoption procedures began in California, and Stacey Doss has since raised the child. But less than three weeks after Vanessa’s birth, her father, Benjamin Mills, Jr., filed a custody petition. (His mother has subsequently joined in the request for custody.)

Those unfamiliar with the anti-father bias in family courts and related procedures may well ask, “What’s the problem?” The mother’s perjury was revealed well before an adoption occurred, and Mills took the correct legal steps. He registered with Ohio’s Putative Father Registry — a database of men who believe they might be biological fathers and so list their names to preserve parental rights. If a child is put out for adoption by the mother, the registered father is supposed to be notified. With Baby Vanessa, however, it seems probable that no registry search occurred. Even if it had, in most states there is no guarantee that the notified father can assume custody or assert any parental rights whatsoever.

Indeed, some men’s rights advocates claim that the putative registries are obstacles to fathers. Why? Jeremiah Clayton Jones is a case on point. Under Florida law (and that of most states), an unmarried father has no right to withhold consent from an adoption if he is not listed on the putative registry. His absence from the list is viewed as de facto renunciation of such rights. Jones lost all parental rights because he failed to register for a list he did not know existed.

Moreover, because registries are state matters, registering has no legal clout if either parent moves across a state line or if the baby is adopted out to avoid court challenges.

While the media harshly spotlight “deadbeat dads,” little attention is given to diligent fathers who fight for years for the legal “privilege” of seeing their own children. A pivotal case occurred in 1998 when the West Virginia Supreme Court upheld a jury verdict that awarded $7.8 million in damages to a man whose child was adopted out without his consent. It was the first time in an American court that an unwed father who never had custody received monetary damages. But little progress has been made toward an unwed father’s parental right regarding his own child.

Unsympathetic Plaintiff

Frankly, for the sake of fathers, it might be best if Baby Vanessa’s case never sees the Supreme Court. Mills is far from a sympathetic plaintiff, and much of Doss’s case rests on his poor track record. For example, Mills spent eight months in jail for domestic violence and has four other children but without custody of them. A Supreme Court precedent based on his dubious parenting skills would still be a precedent which good fathers would have to abide.

It is heartbreaking when a child is taken from the only family he or she has known because of the legal mishandling of parental rights. But the parents themselves should not be blamed and punished for flaws in the system. This is especially true of fathers who request custody from the instant they know their child has been born.

Stacey Doss has done nothing wrong by loving and caring for Vanessa. But neither has Mills. However flawed his character might be, a father was preemptively denied the chance to know his own daughter. A mother lied, a father was denied parental rights, and the bureaucracy created a family tragedy. Much of it arose because men do not have the same presumption of parental rights as women

  • Wendy McElroy is the author of over a dozen books on individualist feminism and libertarian history. Her upcoming book, "The Satoshi Revolution," applies the concepts of classical liberalism to cryptocurrency. She has been published by such diverse venues as Penn State to Penthouse, FEE to Marie Claire.