There’s a recent Utah Supreme Court opinion, In re EZ, that raises a bunch of interesting questions that tie back to topics we’ve discussed here. Here’s a brief summary of the facts. It’s a tight sequence of events and you’ll need to pay close attention.
Emily Fahland gave birth to EZ on February 10, 2009 in Virginia. Fahland was unmarried. It appears undisputed that John Wyatt, III, a man she’d been involved with, is genetically related to the child. (I’m going of my way to avoid using the word “father” here for reasons I will return to later.)
Before EZ was born, Fahland had agreed to place the child for adoption. On February 12, 2009 she relinquished her parental rights and consented to adoption by a couple from Utah, TIZ and CMZ.
On February 17 the prospective adoptive parents received permission to travel to Utah with EZ. (Permission to take the child from Virginia was required.) On February 18 Wyatt started custody proceedings in Virginia. On February 23 the prospective adoptive parents filed an adoption action in Utah. On April 8 Wyatt filed with the putative father’s registry in Virginia. (This is registry maintained by the state where men who assert that they are fathers of children born to unmarried women may register their claims, as it were.) Finally, on April 28 Wyatt filed papers in the Utah adoption case, objecting to the adoption.
It might be worthwhile to emphasize a couple of points before moving on. Fahland was unquestionably a legal parent. That’s because she gave birth to the child. (There are exceptions to this rule in some states for women who are surrogates, but they’d have no applicability here.) Had she not relinquished her rights on February 12 the adoption could not have proceeded. While her pre-birth agreement to proceed with adoption set things in motion, she had an absolute right to change her mind. Without her consent, the adoption could not proceed.
Now what about Wyatt’s claim to be a parent? Here’s how the Utah court considers it. First, Wyatt might have a pretty good argument that the case ought to be in Virginia rather than in Utah and, as it turns out, he might have been a whole lot better off in a Virginia court. But alas for Wyatt, he didn’t raise his argument that the case belonged in Virginia rather than in Utah in a timely fashion. Thus, the argument is waived–which is to say it is lost to him.
The requirement that arguments be raised promptly, and the logical follow-on, that they are waived if not raised, is common in many areas of law. If you think about it, the orderly process of litigation requires people to raise arguments promptly. If you let people raise things whenever they happen to occur to them, you end up with something quite chaotic.
What I mean to suggest here is that in general, there are strong systemic argument in favor of having a doctrine that things not promptly raised are waived. But that said, when you see it actually applied against a person, it can look harsh. We don’t know why Wyatt didn’t raise the argument in question. Maybe it was his lawyer’s fault. Maybe he didn’t have a lawyer. But it doesn’t matter–it wasn’t raised, it’s waived. This means he is stuck in Utah.
It turns out that Utah has very strict law regarding the rights of people in Wyatt’s position. The discussion begins on page 16, but here’s one of the three requirements:
Second, prior to the mother’s consent to adoption , the father must have “fully complied with the requirements to establish parental rights in the child, and to preserve the right to notice of a proceeding in connection with the adoption of the child,”
Practically, this means that Wyatt had until February 12 (three days after the birth to the child) to fully comply with the law. In this case, he didn’t act quickly enough. Under Utah law he is not a legal parent and thus, he has no right to object to the adoption of the child. End of story.
Obviously there’s a good deal more to the discussion than this, but I do think this is the nub of it. There’s more to say, but let me stop (fearing the dreaded teal deer) with two things that strike me. You can see this case as one about the difference in treatment between men (Wyatt) and women (Fahland)–couldn’t be starker–she’s a parent, he isn’t. But you can also think about this as a case about marriage. If Wyatt and Fahland are married, he’s a father and it doesn’t unfold this way. Seems pretty clear that the worst thing to be is an unmarried man who wants to be a father.