What To Do About Daddy?

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By court order,
3-year-old Evan
Parker Scott
of Jacksonville, Fla., is being separated from
his adoptive parents and returned to the biological mother who surrendered
him at birth.

Why? Because
something was missing from the adoption process: the father’s consent.

In 2005, family
courts will confront a question head-on: “What to do about Daddy?”
In the case of Evan, the question is, “what to do about the “birth
father”
? – a term that properly denotes the biological
and often unmarried father of an adopted child.

The media has
discussed Evan’s case as a tragedy caused by the court validating
“father’s rights” at the expense of a child’s welfare. Whether the
rights of Evan’s biological father were in fact violated remains
a point of debate in this specific case, but overall, a good argument
can be made for the opposite view: By ignoring the father’s rights
at the outset of an adoption proceeding, courts set the stage for
this kind of needless tragedy.

When custody
is contested, the child’s welfare should be foremost. Accordingly,
commentary has centered on Evan. The children’s advocacy site Hear
My Voice
offers poignant coverage of the transfer to his birth
mother. In the Boston Globe, Jeff
Jacoby
writes, “Only a legal system that believes ties of blood
are the truest expression of parenthood could order a boy stripped
of the parents who have raised and cherished him from birth.”

Jacoby misses
some salient points.

One: Evan’s
situation did not arise because his father suddenly appeared after
three years. Five months after Evan’s birth he filed papers with
the court and has mounted a continuous legal battle.

The tragedy
occurred, at least in part, because the court transferred Evan’s
guardianship (with a presumption of adoption) to the Scotts before
the father’s claim had been resolved. In doing so, I believe the
court acted inappropriately, and with tragic consequences.

Two: the court
acted inappropriately because, when both parents are known, they
are both responsible for the child’s welfare and they possess an
equal claim to parenting. If parental responsibility is to be legally
binding – e.g. for child support – so, too, is the parental
claim. Before an unwed woman can put a child up for adoption, the
father should be given the opportunity to raise his child.

Four: saying
that a child’s welfare should be foremost does not negate the rights
of the two parents. The appropriate action is one that preserves
the rights of all involved through negotiation if at all possible.
Only if a parent is a clear threat to the child should his or her
rights be summarily abrogated.

Good
Morning America
compared Evan’s case to “‘Baby Richard’…a
(1995) court battle that went all the way to the U.S. Supreme Court.”
In that case, a 4-year-old was taken from adoptive parents and given
to his birth father.

However, the
cause of birth fathers’ rights might not fare well if ‘Baby Evan’
becomes a test case. Evan’s biological father was convicted of and
served a jail term for assaulting and hospitalizing his birth mother
while she was pregnant. This, unfortunately, lends credibility to
the image, in these types of adoption cases, of the “birth fathers”
as uncaring, unstable and unfit for parenthood.

Moreover, it
is a widely accepted belief that in cases where there is a history
of domestic violence, fathers bid for custody as a way of harassing
the mother.

These are two
common objections to birth fathers’ involvement in adoption: they
are uncaring or unfit parents; and, they will use the courts to
harass mothers. Without question, a number of birth fathers richly
deserve such criticism. But it is improper to deny rights to an
entire category of people because individuals within that category
behave badly.

The birth father
I met at a conference of the National
Coalition of Free Men
may very well be as “typical” as Evan’s.
He and his mother had driven across several states to attend the
meeting in the hope of making contacts to help his case. A serious
young man of about 20-years-old, he explained that his girlfriend
left town without telling him she was pregnant. She put the child
up for adoption after running the public notice to the birth father,
which is legally required; the notice was an ad in the back of an
out-of-town paper to which he did not subscribe.

By the time
he discovered his fatherhood, the window for claiming parental rights
had expired. Now, he and his family were desperately seeking a way
to gain custody and raise the child themselves.

How can courts
help to prevent heart-wrenching father-child reunions, like the
one Evan is now experiencing?

They should
acknowledge at the very beginning of an adoption proceeding that
both responsible parents have an equal voice. Each parent must be
presumed responsible until shown otherwise. And no adoption placement
should occur if either parent wants custody.

Moreover, the
notification process should meet a high standard of diligent effort
before parental rights can be suspended.

Evan is now
in the custody of his mother who filed specifically to block the
father’s claim; the latter has been granted liberal, but supervised,
visitation.

The court’s
misconduct, of course, extends beyond whatever original slighting
of father’s rights it may have allowed to occur. To correct that
“error” humanely, the court and adults involved might have arranged
liberal visitation for the father with Evan’s adoptive parents.
But the mother’s filing precluded that very possibility.

The saddest
irony is also the worst indictment of the family court system. Evan
was desperately wanted by the Scotts, and his father also very much
wants him. The only person who didn’t want him is the one who now
has custody: the mother.

I retract my
former statement: perhaps this would make a good test case.

January
10, 2005

Wendy
McElroy [send her mail]
is the editor of ifeminists.com
and a research fellow for The
Independent Institute
in Oakland, Calif. She is the author and
editor of many books and articles, including the new book, Liberty
for Women: Freedom and Feminism in the 21st Century

(Ivan R. Dee/Independent Institute, 2002).

Wendy
McElroy Archives

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