What’s the Matter With Utah Law?

This is picking up on what I’ve been talking about in a few recent posts and you might just want to read back a bit to get the context and all.  While I was thinking about this morning’s post I had something of a realization.   I realize this might be more important to me than it is to you, but I’ll take a few moments to explain it anyway.

As I said this morning, one way to understand Utah law is to say that the state has concluded 1) that children to better in homes with married parents and 2) that the advantage to children from being in a two-parent married home is greater than the harm of not being with a genetically related parent plus the harm to the genetically related man from not getting to raise his child.   (I didn’t say it quite this way, but I believe this amounts to the same thing I did say.)

Now I don’t like this judgment by the state and neither do many of you.  But I’ve been puzzled about what exactly was bothering me.   For someone who thinks genetic connection is very important it makes perfect sense that you’d disagree with Utah’s choice.   But I’m not that person.   As you’ll know if you’ve been reading along, I don’t think genetic connection is all that important.   And so if that’s the case, then what is the matter with what Utah does?

I figured out my objection this morning and it’s really why I restated what I had said in a slightly different way.   I don’t accept the first premise (what’s labelled “1” above).   And that premise–that children do best in married two-parent heterosexual homes–is the basis for moving the child in the first place.   So if I don’t accept the premise, then the whole Utah approach becomes problematic.

This doesn’t necessarily answer all the questions–it doesn’t, for example, tell you about what the rights of a man in the position of Manzanares should be.  But it does help me understand why I reject Utah’s approach even though I don’t buy the argument about the primacy of genetic connection.   And it illustrates a nice point:  you can come to the same conclusion as other people (that Utah is wrong here) even if you have completely different sets of assumptions.

I feel so much better now.


14 responses to “What’s the Matter With Utah Law?

  1. Honestly my main issue is how they purposely try to apply the law to as many non residents as possible. While I’ve heard of fathers in other states losing under their own state laws I’ve never heard of another state so hostile to out of state fathers.

    I don’t think all of this is because of morality either. Maybe the original reason for the law was, but I doubt it’s the entire reason the law was modified to become stricter and stricter. Not every Utah adoption agency is LDS. There’s a large adoption industry in Utah that takes advantage of these laws and fights to keep them, and that encourages pregnant women from other states to come to Utah. The father won’t be able to fight, and if the mother is alone in a strange state with the financial aid of the agency, she’s less likely to change her mind. I think these laws are also bad for some of the out of state mothers encouraged to come to Utah. Ones whose child might not even have a father who wants the baby, but who were convinced to work with that particular agency and are now giving birth far from home without the support to change their mind if that’s what they want. I’ll look for the article later, but one woman who came to Utah and decided after giving birth not to sign away her rights ended up spending a few days in a homeless shelter until she got the money for a plane ticket home. The agency would only provide one if she signed away the baby.

    • Granted that this is quite rightly a separate point of concern and it is good to highlight it. There is pending legislation (which I will write about for a short post in a moment) that would address this issue and a bit more. No idea what the prospects for the legislation are.

  2. But Julie, the court doesn’t actually disregard the law, does it? Its seems more that they look for a loophole.
    And than that loophole can eventually become a precedent for a totally different kind of case….

    • A court will almost never say that it is disregarding the law (because the court’s authority comes from our respect for law) but that is typically what the dissent will say the majority is doing. You might also say–as you suggest–that they look for loopholes. Sometimes they do something that might be called stretching the law. The majority will often say it is just very carefully interpreting the law.

      I think the way you characterize it–as disregard or careful interpretation or whatever–often depends on whether you like the outcome. If you don’t like the outcome then you accuse the majority of ignoring the law. You can see this played out in the recent Utah opinion and that’s really not an uncommon dynamic.

      You’ll also see the charge that the majority isn’t being true to the spirit of the law, but it’s not clear to me that court’s are supposed to follow the spirit (as opposed to the letter) of the law.

      • Honestly, I think the law is confusing and a bit contradictary. One section of the law states that a father who, in his home state or the state where the child was conceived, registered or otherwise followed the legal steps required to gain parental rights prior to the mother’s consent for adoption, may intervene in a Utah adoption if he did not know, and could not reasonably have known, of any circumstance that would cause Utah law to be applied. But then another section says the father cannot use fraud as a defence. Those two sections of the law seem rather contradictary if the father’s reason for not knowing is the mother’s fraud. In the Manzanares case, specifically the mother’s statements both to him informally as well as in her response to the Colorado court that she would return to Colorado to give birth.

        • It is indeed confusing and I think the Manzanares court really split some hairs. The problem, I think, is that (as you say) the father cannot use the fraud of the mother as an excuse for inaction. But he is only required to act if he “should have known.” And whether he “should have known” depends on what the facts (as he knows them) are. And the facts as he knows them are (at least in part) given to him by the mother. And so if the mother lies (fraud) then he has a set of facts that differ from reality and the court might say that given the facts as he believed them to be, he is not in the “should have known” box. Which seems to mean that the mother’s fraud can give rise to a defense. And this, I think, is what makes the dissent in the case very unhappy.

          Rather than try to really work out Utah law, maybe we can just agree that it is, as you say, really confusing. And you know, law that is really confusing is often not good law.

  3. (sorry julie this comment was meant for the previous post)

  4. You know I really feel like these odd contradictory laws do follow a line of logic after all. I almost think I can play devils advocate. Its money that drives these decisions. Money and probability. I think every state does it to some degree but it results in people not being treated equally or fairly and I think they could arrive at their same fiscally conservative goals without treating anyone unfairly.

    The goal is to have every child in their state supported by two parents private sources of income. If one parent dies SS will pay death benefits to the child until they are 18 which is good but still financially straps the living parent who must now raise the child alone. If the parents were married then not only would the child receive benefits until 18 but the surviving spouse would receive benefits the rest of their life and this additional income will help to keep the surviving parent from seeking public assistance while the child is a minor. Also if the parents are married the dead parent’s estate is not disbursed, it stays with the surviving spouse or parent rather than going to a step parent to live off of. These things taken together make it in the state’s financial interests to place the child in the care of married people who at least at the time of the case can privately support the child. So a woman who wants to give the child up for adoption will be favored over the father who wants to raise his child even if he has private income to support his child. Why? Because the mother likely does not have the money to support the child and the state would need to provide some sort of aid to offset her meager contribution. Over the course of the following 18 years its likely that the state might be providing medical and dental or food stamps housing vouchers etc to keep the child with his biological father even if the father is working. The state is going to do everything it can to make a decision in its own best financial interests that meets the child’s basic physical needs – and really a genetic connection is not required to feed and look after a child. So they don’t have much trouble sleeping at night placing the child in an adoptive home because they know the kid will be cared for decently.

    I don’t think marriage is the issue because if the father were married and had a loving stable relationship with his wife, they’d still say no unless she wanted to adopt the child because a step parent’s income only supports the child during the course of the relationship. Although the father would get SS survivor benefits as her spouse, the child would not receive direct benefits from her death and if the father were to die the step mother would not have to keep raising the child if she did not want to. Stable it seems means financial safety nets to stay off welfare.

    Now I understand why the genetic father is the father according to every state code and then why it seems so many other laws conflict with that. The genetic father is the father that’s true always but the state makes genetic fathers legal fathers in order to get that two sources of support for the child. Most women don’t give their children up for adoption so the state goes after the father and tries to get him to pay. Many of those women don’t have jobs and the state is paying to help support those kids. Now if the mother is married and the kid has two automatic sources of support the state is not going to want to mess with that unless it has a genetic father standing by with a full time job. The laws are all over the map because what is driving the best interests of the child rule of thumb is keeping the kid off welfare or keeping the risk factors low.

    This is why the moment the state intervenes in cps cases its motivated to get the kids adopted because keeping the family together usually costs money. They don’t want the kid to go back to a mother on welfare.

    • I am inclined to agree with you here up to a point. In cases where we are short a father, then biology is invoked because we know we will find someone who has to pay up. But in cases with excess fathers (like these, where some other male wants to adopt) we’re happy to drop biology out. This does make it seem like a lot of it is about money.

      But I do think it is more than money. It isn’t chance (to me) that Utah only allows man/woman marriage. There’s an essentialist view of men and women–men as breadwinners, authority figures, etc. Women as nurturing, domestic. You need one of each to properly raise a child. This does tie in with money–a proper breadwinner who can support the child is definitionaly male. But it isn’t only about money. It’s about gender, too.

      • Single parents can adopt in Utah if they aren’t in a relationship. So in theory you could end with a dispute where prospective adoptive parent was single and the biological father had married another woman who wanted to act as the child’s mother if he got custody.

  5. Yeah they are happy to drop biology out because the biological father is only one private source of income….the other private source of income is a mother who very likely can’t afford to support the child without public assistance. If Utah allows the bio father to keep his child Utah will very likely end up providing some sort of aid to support this child for the next 18 years where if it does not let the bio father take the child there will be no state funds needed to support the child.

    They are making a decision that meets the immediate physical needs of the child at no expense or no potential anticipated cost to the state. Its the fiscally responsible choice. Cannot argue with that.

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