My plan for today was to write one more post on the topic from yesterday and the day before–the Massachusetts case where the man is found liable for child support. But then I got distracted by this case from Arkansas that I noticed on The Adopted Ones Blog. So I’m going to sidetrack myself to comment on the case. I suspect that what I want to say about it may make some people unhappy. Please take the time to read what I say with some care before you get really angry, though.
JEM and SMB were dating when SMB became pregnant. Both were students at Southern Missouri State University. SMB told JEM she wanted to place the child for adoption and she told him that she would leave the state to do so.
In order to protect is rights, JEM filed a notice with the Missouri Putative Father’s Registry. Putative father’s registries are maintained by many states (but I don’t think all states.) They idea is that unmarried men who think they may be biological fathers can sign up there and, if they do, they may be entitled to certain rights.
Anyway, probably because he knew that SMB might leave the state for the adoption, he did not stop with the Missouri Putative Father’s Registry. He also signed up with the Illinois, Texas and Arkansas Registries. He also refused to consent to an adoption in Texas and instead filed a petition to establish parentage there. All of this was done before the child was born.
Eventually SMB moved to Arkansas. SMB signed forms there relinquishing parental rights and consenting to guardianship and adoption of the child on September 3, 2011. The baby was born September 4 and placed with the adoptive parents the same day. JEM was not notified of the birth. On September 8 he filed a paternity action in Arkansas.
A guardianship petition was filed the same day as JEM’s paternity action. It alleged that JEM’s consent for the adoption was not required. (I confess that I am not clear who filed that petition. I suspect it was the prospective adoptive parents but it might have been the entity that was appointed guardian–Grace Adoptions.) Shortly after that an adoption petition was filed.
The central legal question here is whether JEM’s consent was necessary. This is a question of Arkansas law and I will focus on that in a moment. (It’s the part I think might make people unhappy.) But take a moment to look at the sum of the facts first.
There’s something really disturbing about the events here. JEM did a great deal to try to establish his rights. He filed not one, not two, not even three but FOUR separate notices with putative father registries. (You’d think this could be a little more centralized, but it’s another instance of state’s rights in family law.) He filed two paternity actions. He clearly tried.
But despite trying, he never saw the child. He never had a relationship with the child. He never supported the child. In none of these shortcomings is he remotely blameworthy. It seems clear the reason he was unable to do these things was because of the determined efforts of SMB.
So now let’s go back to the question of whether his consent was necessary. Arkansas law governs this question and it says:
(a) Unless consent is not required under § 9-9-207, a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by:
(2) The father of the minor if the father was married to the mother at the time the minor was conceived or at any time thereafter, the minor is his child by adoption, he has physical custody of the minor at the time the petition is filed, he has a written order granting him legal custody of the minor at the time the petition for adoption is filed, a court has adjudicated him to be the legal father prior to the time the petition for adoption is filed, or he proves a significant custodial, personal, or financial relationship existed with the minor before the petition for adoption is filed[.]
What (2) does is identify the circumstances under which the father’s consent is needed. Most clearly do not apply to JEM. The only one that might is the one that I put in bold. But of course, JEM couldn’t prove that–because SMB had prevented him from forming that relationship.
You might be wondering about section 207, which is referenced in (a). It doesn’t make anything better. According to the court (page 7) it provides that:
no consent to adoption is required of a father who fails to establish a significant custodial, personal, or financial relationship with the minor prior to the time the petition for adoption is filed, even if that father is listed on the Putative Father Registry or has signed an acknowledgment of paternity.
Again, I’ve placed in bold language I think is particularly important here.
I don’t want to go on too much longer, but here’s where I’m heading. It looks to me like Arkansas law is pretty dreadful for unmarried fathers–maybe up there (down there?) with Utah. But it also looks to me like it is pretty clear. Indeed, look at the legislative history recited by the court. Signing up for the putative father registry doesn’t do it. Only an actual relationship does.
But the court here ruled in favor of the unmarried father. This seems like quite a trick given the statutes quoted. I’ll come back to that tomorrow.