As I (finally) am going through the comments, Rebecca alerted me to an interesting and potentially important opinion arising from a case I discussed a while back. You can go read that post but I’m also going to sketch a little background here.
You may recall that Utah has remarkably harsh law regarding unmarried fathers. This arises in part from the state’s strong preference that children be raised within a marital family. When a single mother gives birth in Utah placement of the child for adoption is seen as a better option that leaving the child with either the birth mother or the birth father. (I’m assuming the people don’t want to get married for if they do, no more single mother.) To facilitate adoption in this circumstances birth fathers have extremely limited rights. Unlesss they do exactly the right things very quickly they are not legal parental rights and hence, have no right to object to an adoption.
This is the circumstance that underlies the case that lead to my earlier post. In that case (In Re EZ), the Utah Supreme Court essentially affirmed Utah law and determined that John Wyatt was not a legal father and hence, the child born to Emily Fahland could be adopted without his consent. Given that the Utah Supreme Court is the last authority on Utah law (barring review by the US Supreme Court in a proper case) that’s pretty much that as far as the adoption itself goes.
But Wyatt did not stop there. He filed an action in federal court in Virginia (where he and Fahland had lived) claiming money damages for tortious interference with parental rights. Whether he can get these damages is a question of Virginia state law and the US District Court sent the question to the Virginia Supreme Court. Here’s the opinion from the Virginia Supreme Court. Bottom line is that Wyatt can continue his action.
Now before going further there’s a critical caveat. At this point in this litigation, all the court considers is what Wyatt alleges. In other words, the court only considers one side of the facts. This allows the court to week out cases where even in the best of all possible worlds the plaintiff will lose. It means I’m not discussing the “real” facts here, but only the facts as Wyatt gives them. I have no idea if there’s another side to the story, but there often turns out to be one.
That said, Wyatt essentially alleges a conspiracy between Fahland, a Utah adoption agency, a couple of lawyers and Fahland’s parents. The whole point was to get Fahland situated in Utah in a way that allowed her to place the child for adoption without Wyatt having a chance to object. This, the VA court concludes, amounts to tortious interference with parental rights.
The full facts are complicated and I will take more time to read more carefully in the future. But for the moment, here is what strikes me.
First, if you sue for interference with parental rights you must have to show that you have (or had) parental rights. But who determines if you had parental rights to be interfered with? Isn’t the whole point of the Utah adoption that Utah got to determine that? And didn’t Utah determine that Wyatt didn’t have parental rights–because Wyatt didn’t do the things required of an unmarried man to establish parental rights?
I believe the court addresses this if footnote 2, but I’m not entirely sure I understand what they mean to say there. It sounds like in their view you could have no parental rights for the purpose of adoption and at the very same time have parental rights for the purpose of a damages action. This seems fairly odd and really, I have to think through whether it can work. Can Virginia really apply its own law to reach a conclusion at odds with the one reached by Utah?
The second striking thing is that this is likely an action for money damages. The Virginia Court opinion says:
We acknowledge that the most direct and proper remedy, the return of the child and restoration of the parent-child relationship, may never be achieved through a tort action.
I’m not entirely clear about what ”may” means here. If I say “you may never reach the summit of Mt. Everest” it suggests that it is possible, but unlikely that you will reach the top of the mountain. If I say “you may never go to the movies alone” I think it means you are not going to the movies alone. Which “may” is this? I think it is the former–which suggests that the return of the child is possible. But I have my doubts that this conclusion is warranted.
There’s much to think about here and more, too, out of Utah in the last few weeks. I’ll get back to this tomorrow.