Monday, December 10, 2012

Unmarried Fathers v. Married Fathers

This story out of Utah sounds like just another adoption story where the biological father of a child is ignored in the adoption process:
A legal tug-of-war is playing out in Utah between adoptive parents and the father of a 21-month-old girl.

A Utah judge recently ordered the adoptive parents to give the child to the biological father, Terry Achane of South Carolina, said his lawyer, Scott Wiser.

The adoptive parents, Jared and Kristi Frei, have countered with a legal motion to keep the girl, whom they've raised since she was born, attorney Larry Jenkins confirmed.

That sets up months, if not years, of more legal wrangling and uncertainty about who will raise Leah Frei.

The Freis, who live in a Provo suburb, legally adopted her through an agency in 2010. They have four biological children and two adopted children, including Leah.
But this story is far from ordinary, as the next paragraph makes clear:  "The birth father says Tira Bland, his wife at the time, traveled from their Texas home while he was away on military service in South Carolina and gave birth in Utah. She signed off on an adoption in Utah to the Freis without his knowledge or consent, Wiser said."

HIS WIFE AT THE TIME. . . . He was MARRIED to the mother of the child at the time of conception and at the time of the child's birth.  That AUTOMATICALLY makes him the LEGAL father of this child.  That makes this case FAR different from all the cases of unwed fathers who are ignored in the course of adoptions.  The law makes clear distinctions between married fathers and unmarried fathers.

Fathers not married to the mother of the child are not necessarily legal fathers.  In Lehr v. Robertson, the Supreme Court says that unmarried biological fathers have only an opportunity to become legal fathers, they are not legal fathers by reason of biology.  Unmarried fathers have to DO SOMETHING to grasp the opportunity to be legal fathers:
The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie.
So when it comes to unmarried fathers, and whether they have any legal rights when their biological child is adopted out, we ask what they DID to grasp their opportunity to be legal fathers.  Did he support the mother financially and emotionally during pregnancy?  Did he live with the mother and child as a family unit?  What has he done to develop a relationship with the child? Has he supported the child financially and emotionally? And in more recent times, we ask, did he file in the putative father registry of the state in which the child is being placed?

Under this kind of fact-specific inquiry, there can be considerable disagreement over whether a biological father has sufficiently grasped his opportunity to be a parent.  That's how courts can ignore him in adoption placement -- the court just finds facts that show he did not grasp his opportunity to parent.  Now he isn't a legal parent, and he has no say in the adoption placement. He doesn't even have any parental rights that need to be terminated before the child can be adopted.

But married fathers don't have to DO ANYTHING -- they are legal fathers. Says the Supreme Court in Lehr,  "The most effective protection of the putative father's opportunity to develop a relationship with his child is provided by the laws that authorize formal marriage and govern its consequences."  See?  Once he's married to the mother, he has grasped his opportunity to be a legal parent, and he need not do anything more.  He is the legal father, and the child cannot be adopted out without his consent and without the formal termination of his parental rights based on that consent.

So, yeah, cases that ignore unmarried fathers who desire to parent are morally outrageous, but they're legally ambigous.  But a case that ignores a MARRIED father?  That is a new low in adoption placement.

11 comments:

Kylie said...

The LEGAL father found out his wife (at the time) had traveled to Utah to have the girl adopted by the Freis within WEEKS of her birth, never consented to the adoption and demanded the rerun of his VERY WANTED daughter at that time. The Freis knew the birthmom was married, knew the birthfather NOT consented to the adoption and decided to proceed anyways (despite being warned that the adoption would be problematic by their counsel, adoption agency and the presiding judge).

Had the girl been returned to her legal, biological father who never consented to the adoption when he requested her back -- when Leah was only weeks old! -- the trauma to the girl would be lessened. She's be happily attached to her biofather. Any trauma that results NOW, two years later will be due to the selfishness of the Freis for dragging this case out for years. It's unconscionable, illegal and horrible.

(The complaints of the Freis remind me of the old joke about the guy who murdered his parents and then had the temerity to complain about the hardship of being an orphan).

I don't believe in hell, but if I did, the Freis would absolutely, positively deserve to spend eternity there for their actions re: Leah.

Truly Blessed said...

The Freis' disgust me. I cannot believe that they have a blog wherein they have requested funds to fight their battle and am in disbelief that there are people who have given them over $20K. Sick, sick, sick.

I understand that the Freis' family "lost" their last court case and have 60 days to return the child to her Dad, but they vow to continue to fight as they believe they are in the right. Totally disgusting.

This story absolutely sickens me.

Kris said...

I truly don't understand how something like this can even be allowed to happen in the first place in 21st century America. Are you kidding me? The Freis' are disgusting and should be embarrassed and ashamed by their selfish actions.

Kylie said...

Leah, when she's older, will know exactly what happened to her -- the actions of the Freis, the courts and her dad by a single click on google.



I do wonder/worry abou the emotional fallout (for the kid)of these sorts of cases - judge rules kid must be returned to birthparents, adoptive parents drag case out for months/years, kid is eventual returned to her biofamily...

... or when the ruling goes the other way (birthfamily tries valiantly to get the kid back, judge rules for adoptive parents, lots of appeals but kid stays wilth adoptive parents), so the kid knows that her 1) biofamily desperately wanted her and 2) her adoptive parents fought and managed to keep her.



of these cases -- judge rules kid must be returned to birthparents, adoptive parents drag the case out for months/years, kid is eventually returned to biofamily

Lorraine Dusky said...

The Freis knew at the time that the father had not been notified and would probably object to the adoption. They have five other children, two adopted. They wanted another African-American child to give the other one a playmate who looks like them.

They are scum. And they are collecting money for the legal fight at Kristi Frei's rather disgusting blog, all about God and how God directed them to do it. People like that are reason enough to distrust religion.

him buwa said...

while i generally disagree with many of your posts… to me, what makes this different is that he came for his child immediately. he's not someone who is fighting for his kid for the sake of fighting and proving something for someone else's interests. he never told his wife he didn't want a child (like many other cases). he clearly wants to parent the child. the frei's should have immediately corrected a really bad situation. the wife (now ex wife) is really the bad one in all this as she set the situation up for trouble from the start. the dad seems like a good guy - was supporting his wife while away and has a career and the ability/motive to parent. are we missing something here? this is clearly so much different than so many of the other stories (like the indian tribe story). he was there from the beginning. i don't get it. so here we go, i agree with you.

Mindy said...

As an adoptive mother, I am appalled at the Freis' actions. To move forward with an adoption under the circumstances they did is simply reprehensible.

My younger daughter was over a year old when she became mine, and is the most centered, self-aware, wise teenager you'd ever care to meet. She grieved for all that was familiar to her when we got her, but she got through it. If Leah has been loved and has attached to the adoptive family, she will be able to attach love and attach again, to the father who has wanted her since before she was born. They will need support, and yes, there will be grief, but she deserves to be with her father, and he her. I'm ashamed to have to acknowledge being in the same demographic with this family. And THEY should be ashamed of what they have wrought upon this young family. Because yes, a daddy and his daughter are as complete a family as any other.

Stephanie said...

What these people are doing is despicable and they belong in jail for kidnapping, as far as I am concerned.

On another note, many fathers the world over have their rights trampled over when they have children adopted out and DO NOT KNOW that they even have a child to begin with, to fight for their children. When and if they do find out, it is too late.

This happens in many cases when the natural mother cannot locate the father (especially in the pre-internet days) and the baby brokers place a bogus ad in some paper the natural father will never see, to claim his child. To me, these men are just as victimized as anyone else and I find it disgusting.

oneinchofgrace said...

I feel so sorry for Leah.

nahidworld said...

Actually, Being a single father is a difficult job, but one with innumerable rewards. Whether you are a divorcee or a widow, being the prime caregiver for your children is a big responsibility that will likely become the focus of your life. Even those single fathers who work and have childcare help understand that raising their children is their life’s work.

-J.Darling said...

The really challenging part here that gets me too is that Leah's biological father is in the military. It sounds (and this is just from my limited exposure to this case via the article sitations above) that Leah is going from a 2 parent household surrounded by brothers and sisters, to a 1 traveling parent household? Assuming he plans to stay in the military, change and adaptation will be a skill she'll need... Looking at it from Leah's perspective, no body really seems to "win" here. Then again, so few things in life are black and white.

A decade after I found my biological family, I got a packet of papers from my maternal bio grandmother, containing letters from my bio mom to the social worker, trying to get information, photos, etc about me. My parents had already decided that they weren't going to share information as my bio mom was unstable and it wasn't really good for anyone. I feel they made the right call. Though these letters proved that I was "wanted" in some sense by my bio family, "family" to me are the people that loved and cared for me, so as an adoptee, this situation feels incredibly sticky. Can I say I would have been better off if either of my bio parents claimed me?

Probably not. My adoptive parents did a bang up job and I'm actually GLAD I did not grow up with my biological parents.

It's aweful that it went down like this... it's just that no one "wins"... least of all Leah.