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.