A Little More On Arkansas Law

This picks up on yesterday’s post and so it will only make sense if you read that first.   For the moment I am not talking about what the law should be or how the law ought to address situations like the one described here.   I’m only thinking about what the court says about Arkansas law.  And I’m at a bit of a disadvantage, because I am hardly an expert on Arkansas law.  I look forward to any corrections/comments from those who know more than I, or even from those who know the same as or less than I but have giving it some thought.

I’ll state the problem this way:  What does Arkansas law say about instance where a man tries very hard to establish a relationship with his child but is, because of the actions of the mother, unable to do so?   I quoted the relevant statutory portions yesterday so I’d rather not repeat them here.  You can go read them–they are the block quotes.

Just reading the language of the statute it looks to me like the requirement is that the father have an actual relationship with the child, not that he attempts to have one.   And oddly, there’s no mention of the putative father’s registry in the statute.   To consider this further, you can look at the process by which the law came to be as it is now.   This tells us something about what the legislature was doing.  It’s recited in the opinion–around pages 6 to 8.

Here’s what I think happened.  It seems that in 2004 the Arkansas statute was different–it included men who had “otherwise legitimated” children among those who had to give notice.   In a 2004 case the court found that filing with the putative father’s registry met this requirement.

This, apparently, did not please the legislature and it is in response to this that the legislature changed the law.   It took out the “otherwise legitimated” language and made some other changes, too.  These are described on page 7 of the opinion.  Perhaps most critically, the legislature added subsections that provide 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. [emphasis added.]

The legislature could have provided that consent was required from any man who attempted to establish a significant relationship with the child, but you will note that this isn’t what it did.   Since JEM didn’t establish a relationship with the child, it looks to me like the statute said no consent is required.

I understand that this result may be unpalatable and you may even argue that the result is unconstitutional.  All I’m saying here is that it sure looks to me like this is the result of properly reading the statute.

The court doesn’t do that, of course.  It goes on to consider a lot of cases from other jurisdictions (which of course have other statutory schemes) and considers this to be a case where the mother thwarted the father’s efforts.  Indeed it may be so–but it isn’t at all clear to me that that’s something the Arkansas legislature cared about.   The court concludes that efforts to form the relationship are enough.

I’ve actually written about cases like this before–cases where the court, confronted with specific cases involving particular individuals–is not willing to simply do what courts usually do and follow the statute.  You might think of this (for better or worse) as an activist court.  It’s trying to reach what thinks of as the right result even if it has to torture the law a bit.   It’s not uncommon and it’s not the end of the world.  But I think in fairness that is what’s happening here.

One last point before I move along to other things in the next post.    Both the concurrence and the majority consider the possibility that one can establish the required relationship with the child before the child is born.   This makes me rather uneasy, though I haven’t explored it at any length.

I’ll stop here for now.  More to come, though.   Like who is injured in situations like this and what we ought to do about that.


19 responses to “A Little More On Arkansas Law

  1. Julie,

    I think that in this case the Arkansas Supreme Court provided clarity to what the law was when you also have a Putative Registry in state. Hasn’t it always been up to the courts to determine when a law is a bad law constitutionally or is in direct opposition to another law on the books? You can’t offer a state sanctioned means to be able to receive notice of an adoption proceeding to protect your right to parent, and yet have an adoption statute that negates the state sanctioned remedy provided.

    Due process to protect your rights is compromised by having the adoption statute written as it is and having a putative fathers registry.

    Other states write into the adoption statutes a 6+ month or older requirement for the fail to have a relationship clause to be enacted which makes sense. The law for surrendered at birth is unjust.

    Arkansas law is bad – it also allows the mother to sign termination of parental rights BEFORE birth.

    • The logic you offer might work but it isn’t what the court did. The court specifically designed to consider constitutionality. That says, it appears that what you say is quite right–there’s a putative father’s registry but it isn’t at all clear what you get for signing up on it.

      It does seem pretty clear to me that the legislature specifically wanted to make signing up inadequate as a basis for notice. That’s why it changed the language after that case. No one seems to be asking about whether the legislature was allowed to do this, which is the question I think you are raising.

      It is, as you say, up to the courts to measure the constitutionality of a statute. But they are wary of doing that and say it isn’t what they are doing here. How they would answer that question if they actually asked it isn’t clear.

      • Indeed, what is the point of a registry in that case? It seems rather contradictary. I wish the court could have considered the constitutional issue – I wonder why the lower court refused to, since it did say the issue was timely raised.

        • There are a few things that might explain why they didn’t take on the constitutional issues. Traditionally courts will look for non-constitutional grounds to rule on before they get to constitutional ones. Constitutional rulings can have broader implications, reach other issues, have more unintended consequences. In addition, if they really weren’t well presented by the parties, that would make the court even more reluctant to go there. And it didn’t need to. It found a way to get to the same result without the constitutional analysis. I don’t find it terribly satisfying, but the outcome is the same and sometimes all they care about is the outcome.

          As for the point of the registry, I have two thoughts. First, there may be some other point to the registry that does not have to do with adoption. Second, if it has no point, this might be an accident of history. What I mean is that at some time the registry did have a point (because it gave you the right to notice of the adoption) and then they changed the statute about adoption but they didn’t go and amend the other statute that created the registry. So it could be sort of vestigal.

          I’m sorry to say that this is not uncommon. There are lots of bits and pieces of things in the statutory structures of many states that don’t make sense any more. It’s rare that a legislature goes back and cleans things up. For instance (though not exactly the same) several states still have laws on the books barring interracial marriage even though that right was established by the US Supreme Court in 1967.

  2. “Both the concurrence and the majority consider the possibility that one can establish the required relationship with the child before the child is born. This makes me rather uneasy, though I haven’t explored it at any length.” Too bad the comment section of your blog is the only place you have the little thumbs up button cause that is a fantastic point right there. Yeah, you cannot establish a relationship with a person prior to his or her existence as a person.

    The expectant father intended to have a relationship with the child once born but the expectant mother did not. Had she changed her mind and backed out of the adoption once the child was born, it would have been based on the fact that the child has to exist in order for her to be a mother with the authority to dispatch her support obligations. Not wanting to have a relationship with the child did not change the fact that she was given the authority to make decisions on the child’s behalf. I’m having a hard time articulating the irony here. There is something about what the law there says that conflicts with itself.

  3. The law seems to state that the father’s consent is required only if he is able and willing to assume custody.
    I am reminded of a totally different situation- both members of the couple were disabled and unable to care for a child without assistance. The pregnant woman in fact was considered mildly mentally handicapped with her mother as her legal guardian. the guardian was strongly pushing the adoption option.
    the man was considered competent to make decisions on his own, he wanted desperately to keep the child but was unable to care for it on his own. He would have desired a long term foster placement, or a legally enforceable open adoption, and I’m told open adoptions are not legally enforceable.
    I wonder if he have any legal rights in this situation.

    • I think that is something of what the court is saying. The problem I mean to raise here is that it isn’t what the statute says, which means it isn’t what the legislature said. The court here doesn’t get to do what it wants to–it is bound to interpret the statute. In my view, it isn’t doing that. Now maybe there’s a good reason for that–I get that idea. But it’s still worth pointing out–partly because this does happen regularly in family law and the instances in which it happens fall in all sorts of circumstances. So one court might go off in its own direction to protect a lesbian coparent and another (this one) might do it to protect an unmarried father. It’s not a liberal/conservative line that’s drawn. It’s about how courts sometimes act outside their ordinary authority in an effort to do something they think is right.

  4. Julie,

    I did a quick search and the Putative Fathers Registry appears to have been put in place in 2005 and the adoption code revised in 2006. I also found a similar case under the old law that the father lost but his actions prior were the opposite of this father. This case they speak to the due process under the constitution for unwed fathers and I think despite the current case judges being unwilling to weigh in on constitutional matters that would apply to other cases and finding the easier route – they may just have rule constitutionally for the father in the current case.

    Page 5 – notes the change in law at the bottom of the page but that the adoption happened before the change. Pages 13, 14 discuss the constitutional due process and why the actions of the father did not measure up. Interesting reading if you are interested and would enjoy a professional view from this lay person.


    • There’s a whole line of cases about unwed father’s and due process. I wrote about them not that long ago. https://julieshapiro.wordpress.com/2012/02/02/defining-who-is-a-parent-under-the-constitution/ I’m afraid, though, that the bottom line is that the doctrine is a mess. I think that there must be some constitutional definition of parenthood–some set of characteristics that have to be recognized. But I don’t khow what it is/they are. I do know (from Lehr) that it is not genetics alone.

      Frankly, the Supreme Court does not seem to do a very good job with family law. I wonder if it is that it does so little of it they don’t get practice, as it were. They don’t have a feel for it. You get these opinions that raise far more questions than they answer. Which is to say that I am not at all sure we’ll know a lot more about the constitution and parentage anytime soon.

      • Also, because they have never taken an adoption case involving a newborn child, there’s been no ruling about what a father can do to establish rights if actively prevented from having a relationship with the child who is placed for adoption immediately after birth, and whether their are any limits to how difficult and limited the process to establish rights can be. The Lehr case, if I am remembering correctly, involved an older child, so the father had a couple of years to have either signed the registry, or filed a paternity case at an earlier date (which would have made him an adjucated and legal father rather than putative father and so he would have been served notice, if I am remembering correctly). I recall that the registry in that state was not particularly complicated, either. I hope at some point in the future they consider the issue of fathers and newborn adoption.

        • I think that is right. Lehr tried for some time to find the child/mother and made lots of efforts in the right direction but did not send a postcard to the appropriate registry. He did actually hire a lawyer to file an action, but was frustrated by a judge who wished to ensure the adoption was completed (I’d guess because he thought a nice married couple would be a better solution for the child.) The thing that screams out to me is malpractice on the part of the lawyer who should have sent the postcard, but nevermind.

          Lehr tried to argue that the fact that he was genetically related gave him rights. The court rejected that pretty clearly. This is what makes many state legislators conclude that it is okay to deny notice to unmarried men at least in some circumstances. I do think there is uncertainty about at what point and/or how the genetic father might establish rights.

          The other pertinent case is Michael H v. Gerald D. Michael asserted he was genetically related (and it appears that he was) and he had a relationship with the child. But Gerald, who also had a relationship with the child, was married to the child’s mother. She (the mother) and Gerald wanted to exclude Michael and they were allowed to do so. He had no rights despite having genetic relationship and social relationship. Of course, he might have fared far better if he had not gone up against the united front of the mother and her husband. It’s a fairly confusing case but you could understand it to be about the primacy of marriage.

  5. Well, all that is well understood but what if the child is born the mother n father lived together during her pregancy stayed together for a year than after the childs first birthday they separated because father was mentally emotionally and verbally abuse to mother and child then and after the mother n child being away having a order of protection against him he decides he wants to sign up on the registry will that prevent the mothers husband from adopting the child?

    • Dezeree he’d have to do alot more than be verbally abusive to the mother for a judge to say he was no longer obligated to take care of his kid! I don’t even think you can get an order of protection for verbal and mental abuse. Most couples breaking up are verbally and mentally abusive to one another cause they’re mad at one another. If he got arrested for beating the mother or child up or he threatened to you could get an order of protection but that should not be enought to let him totally off the hook as far as taking care of his child. You don’t want to reward bad behavior by allowing them to not pay their child support or take care of their parental obligations, that would not be fair to the child.

      If the mother gets remarried what’s wrong with simply having her new husband just be the step father that he is? I mean the child remains his father’s heir in the event that he passes aaway which is important. And if the father is a dead beat and is not paying child support and his parent’s pass away leaving him money or property that goes right to the kid and the kid certainly deserves it. Also by keeping the child’s identity as the father’s son his relationships to the father’s other children and other relatives will be legally recognized whereas they will no longer be legally recognized if the step father adopts the child. The child gets nothing more financially or any other way from having the step father adopt. In fact the child looses many of the rights and privileged he has if he is adopted and he gets nothing more than he would have had the step father simply remained a step father. Often Mother’s are inclined to make their new husband’s adopt the child from a previous relationship as a status thing or as a reward for doing all the hard work that the real father neglects to do. Well that is all an ego feeding thing and it serves no real purpose and in fact gyps the child out of a lot of things. Also if the relationship breaks up then the kid is not tied permanently to the new ex husband – that happens often and think of how the kid feels! Its bad enough being tied permanently to a guy your mom does not like because he’s blood related but being tied to a guy your mom does not like and he was just a step father….lame.

    • I think it all depends- if he is neglecting his parental duties, not trying to have any relationship with the kid or supporting in anyway, he may have his parental status removed by court order. But if he should have his due process. Just my two cents.

      • Agreed with kisarita. I’m not opposed to a court TPR for legitimate abandonment or unfitness in those circumstances if the evidence supports it, but the father should have his day in court.

        • Why can’t the kid have both? I mean why take away the child’s identity as a member of the father’s family? He’ll loose his right to inherit, the right to access his relative’s vital records, he’ll loose his right to benefits in the event that his father should die while he is a minor. He’ll loose his right to receive future and back child support from his father. All for what? To punish his dead beat father? You can severely restrict his decision making authority without making him not be the child’s father. I mean sure he would have to do some bad stuff to have his parental authority reduced that way but if he did I see no reason why he can’t remain the legal father but not the one with physical custody. Even if the father is totally unknown, just having that right to be recognized as his genetic father’s child carrys so many other rights with it. I mean if the kid gets adopted by a step parent and then later on they find out who the dad is the child is entitled to nothing from his real father. The child gains nothing from having the step father named as a adoptive father. The step fathers actions are the same regardless of the title change and the kid ends up loosing so much.

          I don’t think parenthood is something the state assigns to people for good behavior it should be seen as a fact that carries obligations that can’t be traded or bargained or absolved away.

          • marilyn there are two stages here. One is the loss of parental status. The next is adoption. Those are two separate things.
            Julie correct me if I am wrong. If the parent loses his parental rights, he is still the parent for purposes of inheritance and such. (after all by that time he would be dead).
            What he is losing is the right to interfere with the mother’s decisions on the child’s behalf. And if he is truly unfit, then certainly he should lose those right.
            Adoption is a separate decision made by the mother. The mother may decide that the adoption is in the child’s welfare. we may or may not agree, same as we may or may not agree with what school or what religion she raises the kid.
            However the father’s identity is known so that shouldn’t be an issue for the kid Marilyn.

            • If you have your parental rights completely terminated as in not just physical custody but total termination you are no longer responsible for financial support can’t have visitation and the child does not inherit through you. That is my understanding

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