Father’s Rights in Utah

While I’m on the subject of Utah and father’s rights I wanted to put up a post with a couple of other relevant links.

First off, there’s this story about something like a sting operation designed to examine how Utah adoption agencies operate when dealing with unmarried women considering adoption.   The story could be a little more clearly written.  It might be important to know that to the extent the story suggests that agencies tell women about Utah law the information the agencies provide seems to be accurate.   I understand that many people do not like the law as it is, but that’s actually a different objection.  I’m not sure I’d want agencies to provide inaccurate summaries of the law.  I guess you could prefer they not say anything at all about the law?   Anyway, I think the reporter makes it sound rather sinister that the agency might say that if the adoption is completed in UT then UT law stands, but I think that’s just the law.

Now that’s different from coaching people in how to fill out forms to arrive at a particular end.   But there are lots of fine lines here.   If a woman asks “what if I take money from him?” I think the agency probably ought to answer the question, even though doing so may seem like a form of counselling to some people.

What’s not at all clear to me is who organized this little effort.  It’s clearly not just chance that some pregnant women walked into adoption agencies as though they were from out of state.   I don’t see this detail in the article and frankly, I’m surprised.  I’d like to know a little more about the source.   It appears to me it is the subject of the second article, Wes Hutchins.

Hutchins is the focus of the other article that’s worth a look.      Hutchins, who appears to be a father’s rights advocate, was president of the Utah Adoption Council.   He asserts that the Adoption Council has not been adequately concerned with the rights of unmarried fathers but he was apparently unable to persuade the organization to adopt this view.  Thus, he left to form his own organization.

Is anything changing in Utah?  I’m sure I don’t know.   But it’s interesting to watch.  Both the political perspectives represented here (father’s rights/married couples are better) are generally conservative, which perhaps isn’t surprising given that the state at issue is Utah.    Neither is the perspective I’d pick.  I suppose it is my chance to think in terms of second best option?

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20 responses to “Father’s Rights in Utah

  1. Well, legal and ethical are two different things. Just because something is legal it doesn’t make it ethical – the agencies could be refused to be involved in those adoptions, like the one agency that said they wouldn’t go forward with it and would require mediation between the mother and father instead to try and reach an agreement one way or the other. If I were to adopt, I would want the agency to follow the strictist ETHICAL standards possible. I would be devastated to learn the adoption occured as a result of fraud, even if the fraud were legal.

    • Yes, often there is a difference between ethical and legal. There’s also room to disagree about what is ethical and what is legal.

      Having said that, though, I’m not sure I’d generally object to people being clearly told what the law is, what their legal rights and obligations are. Otherwise you just give advantages to people who happen to know the law.

      It’s very important in all these settings to be clear about who has obligations to whom. Does the adoption agency have obligations to the pregnant woman? To the expected child? To others? What obligations to each? What if the obligations conflict? Are a lawyer’s obligations different? I don’t know the answers to these questions, but I’m hoping people give them some thought.

      • I’m not saying they should lie about what the law is but they can still choose not to proceed with that particular adoption as one agency did, instead they actually appear to be even encouraging the woman to actively lie. Not just saying “The law doesn’t require you to notify the father,” but even suggesting that rather than saying nothing, they should lie that the baby DIED.

        • And at a minimum, if they encourage the mother to lie, they are leaving the prospective adoptive parents in a pretty bad situation. Depending on whether they are even honest with the adopters about the mother’s lies (and I have heard of cases where they did lie to the adoptive family who were surprised to find out about the father being interested later on), they may find themselves suddenly fighting an expensive court case, or giving up a child they loved voluntarily if they feel that is the right thing to do.

          • I don’t mean to suggest that it is ever okay to encourage the mother to lie. But I have to recognize, I think, that sometimes explaining the law can have the effect of telling people what to say to get the result they want, which might come perilously close to encouraging them to lie. Perhaps it is enabling them to lie effectively. (Did you ever see Anatomy of A Murder? Key plot point about this.)

            It’s quite possible that the child is with loving parents and is presently happy and that Wyatt was treated wrongly and harmed by it. The question really does become what you do next. As I recall, the child is now around three, right? And has never spent time with Wyatt? What would it mean to a three-year-old to lose the only home she/he has known? It’s a problem I’ve talked about here before–the passage of time, while courts consider issues, etc.–creates realities and it is hard to figure out what to do with that.

  2. Julie – I think the first story you linked to is the survey of adoption agency practices conducted by Wes Hutchins as president of the UAC. He did one and then a year later another one I believe to see if they had changed – not so much.

    One of the stories stated the UAC is also considering changing their membership by-laws so that office-holding members cannot speak out about this etc.

    Utah is happy with the status quo and quite likely it will be an uphill battle to make significant changes.

    As to following the law – I’m sure they do – but they could choose to do things above board and say they think that an adoption should be transparent, and only when both parties wish it to happen. I know some will say that some fathers are unfit or abusive – that’s what calling the police is for and creating a paper-trail in court. You can’t have it both ways.

    • I’m not sure what you mean by “you can’t have it both ways.”

      What’s happening in these cases (and I know it makes many people unhappy–I’m just describing it) is that the law is saying that children born to unmarried women in these situations have no legal fathers. Thus, only the consent of the woman (who is a legal parent) is needed to allow the adoption to proceed. What that means is that the mere fact of genetic relationship is not enough to create a legal parent/child relationship in these circumstances. More is required–and UT spells out what more in exacting terms. If you don’t do it (and we don’t care why) then you are not a legal parent. End of story.

      I am not sure that I see this as an issue of transparency. The question is whether the man should have rights in this situation and if so, what rights and why.

  3. Julie I really did a lousy job with the last paragraph…:)

    It really isn’t about the law in Utah – it is the conduct of the agencies.

    I think adoption agencies should be beyond reproach – in other words to have a higher moral compass, especially since so many of them evoke God in their message and/or name. The law says this but we think we need to do better as a standard because we are Christian non-profit…they hold themselves out to be that they should act like that. That verse What you do unto the least of them you do unto me fits…as a guide to do things right. (sorry getting of a tangent but that verse has stayed with me since childhood).

    The can’t have it both ways – either the father is fit or he is dangerous and that is what the police/court paper trail should show. If he is fit then as an agency (see above) they need to hold to the values they profess.

    I believe if the mother had outside counsel it would be a step in the right direction, this having the same lawyer for the adopting parents, birth parents, agency representation just leads to trouble.

    • I’m inclined to agree that adoption agencies should be beyond reproach but there are issues lurking here that this won’t solve. Let’s suppose an agency is deeply committed to the well-being of children. It also subscribes to a set of beliefs–that children are best reared in a stable marital family with a mother and a father. (This is not actually such a radical proposition.) They would want to carefully move children from single-parent homes to homes of loving married couples. Suppose that the fact that there is some man–not married to the mother and not planning to be married to the mother–who is genetically connected to the child isn’t nearly as important to them as is the well-being of the child. They are not, after all, committed to the well-being of unmarried men who get women pregnant. From the point of view of this agency Utah law is very good indeed. It doesn’t recognize the man as a legal parent and thus he has no rights to object to the adoption. And so they do what they can to get cases set up under Utah law.

      I don’t know what an agency like this might have done in Wyatt’s case–I really do not have enough familiarity with the facts and cannot say. I also do not mean this to be solely about Wyatt’s case. I suppose what I want to illustrate is that if you have a different set of beliefs about what is most important–here, if you are most attached to the married couple household and relatively uninterested in genetic connections–then you can have high moral standards and work with Utah law.

      Perhaps in Wyatt’s case there are two overlapping problems–Utah law and the operation of the agency (and other actors)? You could imagine solutions to the agency problem and still have the problem of Utah law which expresses a preference that I think many people might disagree with. Nonetheless, it seems the UT preference is permissible–it doesn’t violate the Constitution and is the result of the proper democratic process of legislation.

      Separate counsel is always helpful, though of course it makes it more expensive. Still, having counsel who is only thinking of your interests, wherever you stand in the picture, makes a lot of sense to me.

      • The extreme unfairness (and what I hope can be changed somehow) is when it’s applied to non-Utah residents who had no say in the democratic process since they hardly got to vote for the Utah legislature. It just seems fundamentally wrong to inflict this on people from other states.

        • I see your point but I’m not sure there’s a really good way around this. Generally I think it is the case that a child can be adopted in the state where the child is born. Surely a pregnant woman is free to travel. Thus, she can elect to give birth in UT or anywhere else she chooses. And if the adoption is going to be in UT, then it makes sense that it will follow UT law–to have it follow the law of another state would be odd.

          Now if you don’t like the result that you get, it seems to me you have to find a link there to challenge. I’m not going near the pregnant woman’s right to travel and choose where to give birth.

          Of course, the Constitution of the US requires DP and all that, and so if men like Wyatt had constitutional rights, then UT law would have to take those into account. But the Court hasn’t held that they have constitutional rights.

          So maybe you have some idea that if the man is entitled to notice in state A, then he must be entitled to notice in State B, where the woman has recently moved to state B to give birth? One might be able to structure something like that, but I wonder if states would view it as an infringment on their sovereignty–their power to regulate their own domestic affairs?

          None of this is to disupte your point about unfairness–I’m just thinking out loud about what one might do about it.

          • I wish there was a national putative father registry so that if the mother moves without telling him and tries to place the baby elsewhere he can find out. That’s been proposed on the national level but hasn’t really gotten anywhere unfortunately.

            • I do see why this would help but apart from anything else, states have different substantive ideas about what an unmarried man needs to do to acquire rights that include the right to be included in any hearing. A national registry would require a uniform national standard–which I understand would have some real strengths. But states have had a couple of hundred years of getting used to the idea that each runs its own family law. Hard to overcome that. (And whose standard prevails? What if the national standard turned out to be Utah’s?)

              • I believe the idea behind the proposed one was that it would simply notify the man where the adoption is happening and then he’d have to follow that state’s laws. But it would eliminate those situations where the mother just disappears and by the time the father finds out on his own where the adoption is happening, it’s too late to even try to follow the laws because the limited time period is already over.

                • To do this you have to agree on which men are entitled to notice, right? And typically notice also implies some right to be heard, which is to say, to participate in the proceedings for which you get notice. (There’s not much point in notice if you have no ability to participate, I suppose?)

                  This framework is generally agreed, but states differ about how they answer the question of who is entitled to notice and a right to be heard. It’s clear that not everyone is entitled to notice. I’m not, for example. So how do we describe the people who are?

                  In general you have to have some sort of protected interest before you get notice and whatever follows from it. So, for example, before the state takes away my property I get notice. But kids aren’t property. So then what?

                  There’s a line of cases I talked about here where the Supreme Court grapples with this (rather inartfully, I’m afraid.) http://julieshapiro.wordpress.com/2012/02/02/defining-who-is-a-parent-under-the-constitution/
                  I think you can read this line of cases as saying if you have some sort of parental interest, then you get notice. Does that mean the same as saying “if you are a parent, then you get notice?” It might.

                  The case that most people hate in this line is Lehr (it’s discussed in that link) which is a case much like the one’s we’ve been talking about. The Supreme Court said Lehr wasn’t entitled to notice because he had no protected interest in his relationshipship with his offspring.

                  I’m not saying a state couldn’t do more–give more rights, require more notice. It could. And so could the federal government if it wanted to. More is allowed. But more is not required.

                  The question then is whether giving broader notice rights is a good idea overall–whether it is sound policy. That’s an important one and has come up several times, but not in a while. Maybe it is time to revisit it.

                  • Utah was considering (though it died in committee) a notice bill that would NOT have allowed the father to intervene just from the notice, but simply be notified by certified mail his child might be adopted in Utah and he had to follow this specific law to have rights. So it seems possible other states may also have laws where the father must be notified but still has to do other things before being entitled to object in court – in that case the notice is more of a warning.

                  • There are many different ways you could set this up with various stages at which more or less process would be required. A state can always choose to give greater consideration to a person, I think. The underlying question, though, is what is the constitutionally required minimum. A state like Utah–which really wants to promote adoption by married couples and hence, get those pesky unmarried fathers out of the way, might aim to get as close as possible to the minimum.

                    There’s something really slippery here that becomes legally fairly complicated. No one needs to read further than this–fair warning.

                    Procedural due process (PDP) requires that you have notice and an opportunity to be heard before you are deprived of life, libery or property. (That’s the language of the Fourteenth Amendment.) So what constitutes “life, liberty and property” for purposes of PDP? Life might seem pretty clear. Property obviously includes your car. Your driver’s license is also protected–I actually cannot recall if that is property or liberty–I think it might be liberty. BUt what about possibly being a parent? If it is anything it must (I think) be “liberty.” There are cases that suggest that you look to state law to see whether you have a protected interest, but this seems like it could take you back round the loop again.

                    The real problem, though, is how PDP fits with the related topic I already mentioned somewhere–substantive due process. (SDP). The idea behind SDP is that there are some things that you have a right to do (perhaps elect to have an abortion) and the state cannot interfere with this right at all without a very good reason and a carefully written statute. (More complexity I’m skipping.) There might be a substantive due process right to be recognized as a parent. If you give birth to a child and are genetically related to that child and raise that child for five years it seems to me that state MUST recognize you as a parent–it would violate the constitution is state law didn’t do so. When I say it like that it is sounding like an SDP claim.

                    So it seems if you have an SDP claim you must be entitled to PDP. But this is all so ill-defined. Still, it suggests there is some constitutional definition of who is a parent–a minimum a state cannot ignore. That might be what Utah is pushing towards, but we don’t know where it is.

                    But all this aside, your point is well taken–there are many possible ways things could be set up to provide some greater notice if the state wanted to do that.

      • And I also see a third problem in Wyatt’s case (and similar ones involving 2 or more states) – I don’t think the federal laws for multi-state custody disputes or adoptions are doing enough to protect people in these situations. Like the Interstate Compact for placing children. It seems to me a state who requires the father’s consent (or at least gives him more opportunities to assert it) should be hesitating more in approving sending a child to a state that considers the father irrelevant, at least until the time period in the original state has expired.

        • That’s a possible angle, isn’t it? And of cousre, it is relevant here, as the child in Wyatt’s case was born in VA and then moved (so you don’t have the pregnant woman with freedom to travel.) Why did VA approve the child moving to UT? Perhaps it should not have and had it not, that would have solved a lot. (I am sorry if I’m overlooking details I should know. I’ve forgotten the details here as I’ve moved along to other topics.)

          • The civil lawsuit alleges it’s because someone (the agency? the lawyer? the prospective adopters? all of them?) indicited they could not locate the father on the interstate paperwork, but the mother (who later regretted her actions) claims she told all of them she knew where the father was and they coerced her into lying.

            This makes me think perhaps they should not be trusting the information and waiting to see if the father registers or files for custody before the time runs out – in Virginia that time period is only like 2-3 weeks anyway, so it’s not like it would be a huge delay since it already takes a week anyway – so 1-2 more weeks.

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