A legal tug-of-war is playing out in Utah between adoptive parents and the father of a 21-month-old girl.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."
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.
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.