Two More Points About Utah Adoption Case

The past several posts have focused on a recent adoption case from Utah. I’m going to assume people are up to speed on the basic facts and the outline of the discussion here.  I’ve two more points to add to the conversation–one a news update (courtesy of TAO) and the other a further consideration of the legal issues raised here.

First the news:   As The Adopted Ones Blog says, the agency involved in the Achane case is apparently under investigation in Utah.   It’s actually a tad misleading to say “agency” as the article notes that the corporation has done business under at least eight different names.   Thus, I’m sure to many people it appears to be agencies.

Two things here are particularly striking to me:   First, the same entity faciliated five of the controversial and litigated adoptions of children born to unmarried women akin to ones we’ve discussed here.   These are cases in which the genetically related father has been unable to establish any sort of legal parental rights because of the strictures of Utah law.   (This does not appear to include the most recent case discussed here in which the genetically related man was actually able to win.   That post goes into more detail about the general issue, though.)   It’s hard to believe this is coincidence.   Instead, it seems to me the agency here is determined to get children to proper and married Utah families without too much regard for the details of life.

The second observation I’d make is that while this course of conduct could be ideologically driven–founded on a deep belief that married couples are really the best for kids–there’s some evidence to suggest that this particular agency (or the individual behind it) is also driven by greed.   Read all the way to the end to see what I mean.

In any event, I imagine we can all agree that agencies like this one give adoption a bad name.  (I figure you can agree with that whether you like adoption in general or not.)   While it is too bad that administrative processes move slowly, I’m at least glad to note that this agency was already on someone’s radar.  Perhaps the Achane case will lead to its suspension.

While on the subject of the news, it appears that the struggle in this case is not over yet.   Remember that the judge ordered the child to be turned over to Achane in January?   The lawyer for the Freis (the would-be adoptive parents) plans to appeal and challenge this order.   In other words, parental status will  be contested.   (And one last side note on the news–the lawyer for Achane says that initially the Freis were  “duped themselves” although obviously at some point they became more fully aware of the surrounding facts.)

And then there’s the law question which I pose not particularly as a question of Utah law but as a thought question about what the law should be.   While no one has called me out on this, I think there’s an important little snarl right in the middle of my thinking about this case.

Why is it clear to someone like me that Achane should win here?   For those who think that legal parental rights should flow from genetics, this is a no-brainer.  He should be the legal father, he never gave up his rights–there you are.    But I don’t want to base legal parentage on genetics.   And actually, that’s not the basis on which Achane does get legal parental rights here.

In fact, Achane has legal parental rights because he was married to the woman who gave birth and the law recognizes the husband of a woman who gives birth as the legal father of the child.     In general, I’m not wild about this presumption so you might wonder about why I think it is so clear that Achane should win here.

It’s actually because of my insistence on the importance of law.  In this case the law is clear and Achane is entitled to enforce his legal parental rights.  The Freis and the adoption center here have evaded the force of law.   That’s not okay.   It’s cheating.   If you don’t like the law, then you should try to change the law, not cheat.   And if you do cheat, then you ought not to be able to win by arguing that the law should be changed, because this only encourages cheating.     That’s really my objection to the conduct of the agency and perhaps the Freis here.

Which leaves me, at least, to ponder a more difficult question:  what should the substantive law be in a case like this?    If you take the fraud and the cheating out of the equation, who ought to win and why?    That’s actually a harder question for me and I leave it for another day.

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30 responses to “Two More Points About Utah Adoption Case

  1. The father – you can’t do wrong and expect to be made whole by the courts.

    Yes, the child will under go a very traumatic experience and not something that should ever be done lightly, but to have a civilized society it is required.

    I certainly hope this spurs a open-minded review of the adoption laws in Utah and specifically the part where mothers are allowed to commit fraud – and a review of the licensing regulations for agencies.

    • I think your first statement sums up a critical rule quite nicely–you cannot do that which is legally wrong and then seek help from the courts. And that does seem to be the story here. I just think it is important to realize that this rule (you cannot do a legal wrong and then look to the courts for help) is a broad and general one that has nothing particularly to do with the well-being of children, except to the extent you think that a functioning legal system generally is in all of our interests.

      A totally child-centered account might do something different–it might actually compare the two households and see what would be better for the child. It might also take account of the lived experience of the child–having bonded with the adoptive parents (even if they adopted wrongfully). I’m not advocating for that right here–just trying to make sure that it is clear that sometimes being totally child-centered (and centered on an individual child rather then children generally–can lead to results that are troubling.

      • There will always be a better home for a child. Basing cases purely on best interest would mean that I could kidnap a child, keep them for a certain amount of time, and all I would need to prove is that I have a better home. The foster parents of my step-daughter are trying to use best interest against us even though CPS just admitted to us that they screwed up from day one regarding my husband who was the non-offending parent. Of course, they aren’t interested in fixing it.

        • I hope you get your child back. Most people dont foster children with the attitude of “gee I really want to help a child whose family is in crisis – provide a safe place to live while their parents get their act together so they can eventually begin providing what the child needs what the child deserves from them. Gee I’d really like to be part of helping a family stay together that wold make me feel good.”
          No they go into it thinking that the children whose family are in crisis are little pieces of property and they want them. They want to bond with them they want them to get closer to them than their own parents they want the parents to fail they think they deserve the child more than the parents do (again property like thinking) They think they are what the child needs – no the child needs the chaos in his or her own family to die down and needs their own parents to stop fighting or stealing or drinking or whatever it is they are doing to make eyebrows raise.
          I hope you get your child back. I sincerely hope you do whatever it is that needs to be done to keep your child with you so you can finish doing what your suppose do do. Good luck. I’ll keep a good thought.

          • Ah its your step daughter. Well none the less I think step parents are great and undervalued and villified for no good reason. I hope you help your husband to keep his child out of the hands of strange families. Your biggest obstacle is of course if the mother of his child receives any kind of state assistance they will prefer to get the child adopted to have two parents with a stable source of income. Its terrible to essentially loose your kid for receiving state assistance but that is what they do. They’d probably take her out of foster if you’d step parent adopt but that is so wrong it should not be about money like that.

  2. My opinion on what the law should be: the unmarried genetic father should also be required to relinquish his rights before and adoption can proceed. However, I balk at forcing women to always disclose who the father is, because it is not uncommon that women become pregnant by dangerous violent men (rapists and others). (Not all criminals get convicted, and even those that do, eventually go free…) I have not come up with a way to structure the law that prevents abuses of the law by either side.

    • I suppose I could resolve my dilemma in favor of notifying the father; by pointing to the fact that if a woman does not want to do so, she is free to either choose abortion, or to raise the child herself, and if she does choose adoption the obligation to notify the birth father is one of the things she must consider when making the choice whether to pursue adoption. But the fact is that many women, despite the law, are not free to pursue these options.

      • Does this suggest that a woman would not have to notify the man if she was not planning to give the child up for adoption but rather was planning to raise the child herself? Its seems a little odd to me that his rights turn on what it is she is planning to do–so that if she keeps the child he has no rights but if she gives the child up he does. This migth actually be the result in some sort of system where you cast him as a secondary parent–so he got right of first refusal as it were. But I don’t know if that’s what you mean.

        I think this is actually quite intriguing. I’m generally troubled by the idea that an unmarried woman might have to raise the child with a man with whom she has no ongoing relationship. That’s one of the things I do not like about having the genetic father necessarily be a legal father. (You can go all the way back to the one-night stand guy.) This suggests a slightly different way around it than I had thought about. I need to mull.

        • Julie this happens all the times. The majority of single mothers are actually divorced mothers. (although that statistic may be changing.) They also are raising children with men whom they would prefer not to continue a relationship. That’s life, not a tragedy and not considered a violation of anyone’s rights. I’m sorry it interferes with your female supremacist absolute right of the mother but thats just not how things work. There’s a sense of entitlement here – women should be able to do whatever they damn want with no one interfering, which has really no ethical or legal basis.
          I’ve spoken to friends who went through the bitterest of divorces. Few of them believe their child would be better off with no relationship with its father. This includes women who divorced when their children were very small.

        • But yes, a woman who leaves a relationship before the man discovered she was pregnant, can absolutely legally choose to raise the child without notifying the man or putting his name on the birth certificate. One would hope that she would tell the child the truth about its father of course, but I don’t think she can be compelled to do so. The state will not get involved.
          The difference between this situation and adoption is that if eventually the mother does decide to inform the child about the father’s identity, or inform the father of the child’s existence, it’s out of her hands.

          • There have been some notable court cases involving women who chose not to seek support from the bio father and then later the kid sued for back child support and won and the court said it is not the mother’s place to waive the child’s right to support. I agree with that decision. The way you frame it, its like the child only deserves its fathers support if the mother feels like letting them have it. Like the child is all hers and only gets their father if she feels like sharing.

            Why would you do that to a kid? Why would the mother be so much more empowered to lock the Dad out? Why would giving birth automatically make her judge jury and executioner? What if she’s nuts or just bitter because he cheated on her or something? She should not have all that legal power its bad enough she can just keep her mouth shut and nobody can do much about it but she should not have the RIGHT to keep her mouth shut. I mean it should be considered at least illegal for her not to say anything and that way at least the child’s right to support and contact with their father is intact and she just violated their rights by not saying anything. Women would still do it but its a clear violation of what the child is entitled to its wrong and she should not just have carte blanche

            • because the state doesn’t get involve in people’s private family affairs thats why. Not all mothers may be as upright as we’d like, but the government is no improvement on making these types of decisions.

              Regarding financial support. In my opinion it is a mistake to frame the issue of paternity in terms of financial support. Perhaps it is easiest way to frame it because it is the only thing that a state can legislate. The state can not legislate that a parent love their child or attend PTA meetings. Still, that is only a portion of what being a parent is about.

              If a mother or a stepparent is handling all of her child’s needs using her own finances, the child has lost nothing by not having the financial support of the father. Money is impersonal, it matters not who the source of the dough is as long as the kid is adequately fed, clothed, sheltered and educated. What the child is missing is the relationship and all the money in the world can’t make up for that.

              • Not to mention there’s no practical way to force her to name the father anyway. They can hardly DNA test every man in the country. Unless a man shows up that thinks he might be the father, they have no way to know if the mother knows and is not telling or truly doesn’t know because she had a one night stand with a guy without knowing his name and now couldn’t find him even if she wanted to.

                • People lie but it does not mean we have to say it’s allowed or that it is not wrong. There is a certain level of respect in saying to a person that has just been mugged that what happened to them was a crime and it was wrong and the mugger would have been punished if they could have caught him. We don’t tell the freshly mugged person that when it comes down to it some people are just violent and selfish and if they want to mug someone they’re going to do it and there is nothing we can do to stop it from happening so since you were mugged you lost the right not to be mugged and we won’t bother looking for the mugger and since he got away with it we won’t punish him for it and he gets to keep whatever he took from you.

                  Sheesh guys. No we can’t prevent crime entirely. So lets just call everything legal and let the chips fall where they fall.

              • “If a mother or a stepparent is handling all of her child’s needs using her own finances, the child has lost nothing by not having the financial support of the father. Money is impersonal, it matters not who the source of the dough is as long as the kid is adequately fed, clothed, sheltered and educated. What the child is missing is the relationship and all the money in the world can’t make up for that.”

                Ehhhh lets run some numbers shall we K? First though let me say no sht – being a really great father involves a hell of a lot more than providing physical and financial support. That’s not exactly a news bulletin. And no the state can’t legislate stuff like genuine care and consideration or real love and devotion. So there are millions of different personalities in this world and some people wind up with really bunk ass parents who are totally out to lunch and emotionally unavailable.

                Uh huh and so your saying that only parents with good personalities have to support and provide for their children. Kids whose Dad’s won’t toss the football around in the front yard don’t deserve anything at all from their fathers – heck why should they they have to be financially responsible for their offspring when the mother who is caring and has a great personality can pay for it all? She’s got plenty of money the kid does not need the father’s financial support or his social security death benefits. The kid only deserves military death benefits from a parent if the parent was a stand up guy that spends lots of quality time with his kids fishing and rebuilding the motor of a 69 Chevy Malibu factory green with bench seats. Mom’s got a husband and he has a good job why should Dad have to pay anything?

                Don’t fault me for focusing on the practical elements of parenthood when that is the only thing that the child is legally entitled to. It’s the best the law can do for minors OK? We only have laws about what parents are suppose to do because there are so many shitty parents in the world that won’t do what they are suppose to do otherwise if there is no penalty. Those minors with mediocre parents do deserve something from them right? You have got the Julie thing going where you pass in and out of parenthood based on whether your doing a good job or not and that is not how it really works. There have to be guidelines for behavior where your still a parent if you screw up so that they can compell you to perform better. Otherwise people could neglect their children and say well heck I’m not a parent because I don’t care and therefore I don’t have the responsibility and have done nothing wrong. The kid is only the responsibility of a person if they care and caring is what makes them a parent. Its BS K.

                Now about that number crunching. Every person on earth is the result of an act of human reproduction by a couple of humans. 2. Society can’t foot the bill and manage all the minors born so we have to make it a law that people with offspring take care of them until they are grown up. And we do that. If we have to hunt down one or both of them in order to make them pay, we do that too because the state only foots the bill in emergencies. So no matter how meager the wages of the two individuals are the child is entitled to equal support from both parents. If the mother is wealthy and can manage to support her child on her own that does not cover the fathers debt to the child. He has his own responsibility to his child independent of her. If all he can afford is a dollar a month – he still owes it and his child still deserves it and for anyone to interfere with him making good on that debt to his child is taking away half of what the child is owed.

                If I commit a crime and someone else goes to jail for it – takes my punishment for me…is justice done? Sure the bases are covered but I have not paid MY debt to society. It’s possible to have people do things on your behalf, like watch your child while you are at work and you are doing your job of watching your child by proxy, your still in control you found someone to help you. That is entirely different than abandoning your post and someone else picking up the slack. When the state covers a deadbeat father’s share of expense, he is expected to pay them back. It is not the state’s job to support his child, it’s his. That is why we garnish wages.

                When I help reunite families and I see this desire this urge in people to find their parents even though they were raised and taken care of by wonderful people what is going on there is deep. They don’t want money from the estranged parent at all and I don’t mean to imply that but they want to be important I think they hope they will find a parent who tells them they worried about them they wondered about them all these things that parents are suppose to do for their children that children are entitled to expect from their parents. That debt cannot be paid by one parent in lieu of the other. That debt cannot be paid by adoptive parents in lieu of the absent parent. That debt Ki is certainly more than monetary but the monetary is the part the state can say if nothing else a person’s offspring deserve that base line level of care and respect. It does not matter if a million other people love you and are proud of you it will not cover that need for both parents to tell you they are proud. One parent’s pride will not cover the pride the other one should feel for their child’s accomplishments and one parent’s money will not cover the other’s obligation to put food in the belly of his child as well. If the mother and her new husband lavish the child with every material comfort the child would still have more if his father were also helping to support him. No matter how much she and her husband provide it will always be less than the child deserves because the source of the support matters it must come from the person responsible for the child’s existence or it does not count . We have to be responsible for our own actions in this world Ki. I can’t believe you think that a father’s obligations simply disappear just because he’s not emotionally available. No way.

                • Yes. If I go pay your dental bill, it is no longer your responsibility. Anytime someone steps in willingly to assume another person’s financial responsibility, that person is absolved of the responsibility.
                  There are certain non-financial parental responsibilities however that are not transferrable to another person.

                  • Ah but no. Let’s return to the situation where a father is not named on a birth record. Mom is struggling and accepts welfare that the State would not have to pay if the Father were around taking care of his child. The child is fed, clothed and has his doctor and dental visits. The State presses the Mom for some names of men that might be the father. She thinks of a few. They hunt they search. They run, they hide. The State tests the siblings of these men and Wham! Winner one of the guy’s is the Father. They attach his wages and now he is paying support from that day forward. And Ki from that day backward back to birth. He has to pay the State back for covering the cost of raising his child back to birth even before he was named as his child’s Father, because he always was his child’s father even though he was not doing his job and in Julies eyes would therefore not qualify to be a parent for lack of effort.

                    The title gives rise to fulfillment of an obligation – not the other way around. Having offspring gives rise to parental title. His obligation was not erased merely because someone else was paying his bills. He has to pay the State back, it was not their responsibility it was his and they covered for him.

                    Millions of children are raised in homes with a parent and a loving devoted step parent and those children still receive financial support from the other parent because they DESERVE THE OTHER PARENT’S SUPPORT. Don’t they Ki? Even if the other parent is a worthless deadbeat and never pays a dime of support and that other parent inherits property…doesn’t the child deserve a share of that money for college or whatever after all those years of having gone without? If the other parent dies before they turn 18 doesn’t the child deserve their social security death benefits? Is there some reason why the child does not deserve the support of the other parent, just because the mother and her spouse are able to cover the essential cost of raising the child.

                    Are you really saying that the other parent’s debt is paid just because someone else has sucked it up and covered the cost? Are you really saying the child does not always deserve the full care and support of both parents? I’m trying here Ki and I just don’t get how you can say the child looses nothing when one of their biological parents is not meeting their obligations. The child may not be physically wanting for anything but the child is still not receiving everything he or she deserves. Don’t forget the child looses an entire half of their family and recognition legal recognition as the kin to their own flesh and blood relatives and that is an enormous violation of their right to services and information. It is an unnecessary thing to do to a person considering all the parent and spouse have to do is cooperate with the other parent and not have such big egos that the spouse must be named parent because of all the hard work they put in. Its their job they signed up to help without the title of parent for their spouse’s children by other people. If they don’t like it they can get divorced. I don’t see why the solution for not liking it is to take away half a person’s family and take away all the financial support they are do. Its robbing a child and the child gets nothing extra in return for loosing all that. They get just as much and more if the step parent just lives life as a step parent. The step parent has all kinds of rights and so does the step family. Step relatives qualify as dependent relatives on tax returns and for all kinds of government and insurance stuff. Genetic relatives qualify for nothing if their relationship is not documented through a birth record. So really the most respectful thing a non genetic parent can do is to not go adopting their spouse’s child or not go sneaking thier name in on a birth record as parent because it leaves the kid in a screwed position. You don’t need the title of parent legally in order to clearly be the one with the superior relationship or clearly be the one who calls the shots. I’m most proud of the times where I talked Mom’s out of having their husband’s adopt their children. Very proud of that. Those kids are getting everything they deserve and they know who they call Dad at the end of the day.

                  • regarding the state having the newly discovered fathers pay them back, the kid doesn’t get the money, the state does. That’s like if I came to you after paying your dentist bill, asking you to pay me back. You wouldn’t pay the dentist twice.
                    (Even so I do not agree that the father should have to pay the state back for the time he did not know he was a father, as it was not his fault and suddenly assuming a huge debt for something he knew nothing about is unfair. It is entirely different that paying out a monthly sum on a consistent basis over time. It can ruin someone. also, to first introduce the kid to him as a financial liability and ruination of his life, and not as a relationship, is almost guaranteed that the relationship will be one of resentment and anger. but that is a separate topic. )
                    some people would like to use money as a symbolic stand in for love care connection relatives and maybe revenge. I don’t believe in that.

                  • You have not answered my question. Does the child deserve his father’s support or not? Why do some children get their father’s support and visitation and all the bells and whistles that go along with being a member of one’s paternal family AND get the benefit of being raised by their mothers and spouses as step parents? Why should the child have to loose out on their own Father, his support his family? Does the child not deserve his Father’s support simply because the mother is not married to him and has a different husband?

                  • sorry if I was unclear about my opinion.
                    A child deserves a relationship with its biological father.
                    A child deserves financial support from wherever it comes from.
                    In a nutshell.

        • So the child is the mother’s property rather than her obligation for having caused the child’s existence? Possession being 9/10 of the law she gave birth the child is in her possession and only gets to have his or her father’s attention and support if she deems it OK. Otherwise she can just arbitrarily give the gift of secondary parenthood to whomever she wishes because the child is her property to share freely with whoever she’s having sex with at the moment.

    • Ki nobody not even the mother of a child should have the right to conceal information about the identity of her child’s genetic father from the child or from the government. There will always be women who won’t have any idea who the father is genuinely. There will always be women who for whatever reason refuse to state the identity of the father of their child when recording the father’s name on the child’s birth record. So in those cases, let the line remain blank but then do not allow for the child to be step parent adopted, do not allow for the child to be adopted at all and do not allow the woman’s husband to be named as father on the birth record through marital presumption. That way, if it is ever discovered by the child at any age, the error can be corrected and the line can be made blank or be filled in by the name of the actual father. That way if the error is ever discovered by a husband duped by paternity fraud the error can be corrected and the line can be made blank or be filled in by the name of the actual father. That way no female will ever under any circumstances appear as a second parent on the birth certificate of a child that is not her own offspring and if she does and it is ever discovered the error can be corrected, the line left blank or filled in with the name of the actual father.

      People don’t have to be named as parents in order to be granted legal authority over a child that they are caring for. There are other ways that it could be handled so that a parent who had no idea they had offspring in the world would still be obligated to take care of them if they found out that someone else was raising their offspring. Like when a man goes to war and comes back to find out a girl he was dating had his baby and gave it up for adoption or named her husband as father. That is such a terrible thing. So don’t worry about women being tight lipped about it there will always be those that are and nothing can be done about that except make it a crime. Most women don’t do that because the man is violent they do it because they are pissed off at them for cheating on them or whatever or because they just don’t love them anymore and that is unfair to the child and the child’s paternal family. If they do that it should be reversed. Even in the case of a man convicted of violent rape – he is still the father it is the truth that he is and his relatives are still related to her child and they should know about one another and he is for medical records and vital records the true and accurate father. Recording his name as the father does not mean he has to be allowed to see the child but the child deserves total accuracy and truth on their medical records, deserves to be considered his next of kin if he inherits money or dies and leaves behind benefits. There is no need to lie about information just because we don’t like it or wish it was not true.

    • I think in general the law does fall somewhere near where you are thinking of. The Supreme Court has made it explicit that an unmarried man does not have parental rights merely by virtue of his genetic relationship to the child. He needs something more than that. (Of course, from the Court’s point of view the ideal is probably that he marry the mother.) The hard question, of course, is what more he needs. That is generally defined by state law–like the one in Utah we’v e seen in other cases. All states probably have some answer to this, but I don’t know the range of answers.

      • Then why is it that a genetic relationship is all it takes to prove he is the father and garnish his wages? If a genetic relationship does not make him the father of a child then stop paternity suits right now reverse all the decisions making men the fathers of the children they sired and stop the money and visitation cut it off.

    • Well if you make it legal for women not to tell then innocent men may loose the ability to take care of their children. Better to have the law be that they must tell and those who won’t for the reasons you say simply won’t tell – little anyone can do about that. The point is for men who have done nothing wrong should not be prevented from performing their duties by a bitter and jilted woman who wants their child all to herself

  3. what are the chances of them winning a stay on the order to return the child?

    • Hard for me to say. It might turn on how likely the judge thinks it is that the ruling will stand. After all, if you move the child and then the ruling is reversed you end up moving the child again. Clearly two moves are worse than one. But if the ruling stands moving the child soon is better than letting yet more months go by.

      I don’t really know enough to know whether there are actual facts in dispute in this case. There may be. If the facts are as Achane says then I think he’s likely to win and so the judge ought not to stay the ruling. But if there are seriously disputed facts, then one might reach a different conclusion.

  4. In my opinion, the harshness of the law against unmarried fathers in Utah and the ease of an out of state mother going there to give up a baby without naming the father contributed to this situation, despite this particular dad being married to the mother. If the father in general had to be named/notified, the mother could not have just initially not named the father, pretended she was single, etc.

    • The two things you identify surely do contribute, but remember he was named and indentified. It sounds like she lied about his involvement and perhaps his whereabouts. Without defending Utah’s law, though, I’d say that it is almost impossible to define a system that is proof against determined misuse unless you have a level of state oversight that I think I’d find terrifying.

  5. I am from Utah, and I actually know of the couple that kidnapped the child (If you are aware that a parent with legal authority over a minor will protest your assertion of authority, it is kidnapping). There is no law that protects the family in this matter. None whatsoever. According to the ruling, it was very clear that the parents were just as deceptive as the birth mother. Also, Utah recently updated its adoption laws to deal with the issues of putative fathers (there now have more time and better chances of getting their consent considered). The last thing that needs to be done is awareness to putative fathers on what that registry is, what it is meant for, and how to register.
    As far as proving involvement, Judge McDade stated it is not the job of a married man. A man who marries a woman gives implied consent that the point of marrying is to create a family unit that includes children. Quite frankly, he has rights because the marriage has created his implied consent that he is willing to be a father.

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