Following Up On Father’s Rights and Utah

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.


23 responses to “Following Up On Father’s Rights and Utah

  1. If I remember correctly…

    The child was born in VA, the transfer took place in VA or the mother/infant/adopting parents/adoption agency travelled to UT – not sure which.

    Wyatt filed within the VA timeline for the putative fathers registry. VA also granted him full custody. UT did not care.

    If you read the UT statutes all the mother had to do was intend on giving birth in UT or place in UT for UT rules to apply – it’s a weird vague wording. They also have wording to the effect that if the mother lies to the father that in itself cannot be cause to overturn the adoption – but monetary damages can be collected – but I think it is against the mother but that could be the way it could happen if the agency colluded?

    If you are interested in either UT portions of the law I can look them up.

    • I’ve read some Utah law (the last go round with this case) but should revisit it. As I recall fraud as to the father is irrelevant. There’s a rational for that (though one needn’t accept it.) It goes like this: The main concern is the child. If the child has ended up in the best possible setting (for UT read with a married couple) then that’s good. The fraud harmed the father but not the child. This isn’t about parents, it’s about children, so we’ll leave the child in that good place and offer the father damages for the injury he has suffered.

      The application of UT law is more complicated and I do not remember what the statutes say. But that’s clearly a huge issue here–does VA law apply or does UT? Obviously the UT supreme court thought UT law did and it applied UT law to affirm the adoption. Were they right to do so? Cannot offer an opinion that one just now–but I’ll get to it soon.

  2. Yes, the child was born in Virginia, where he had parental rights. The lawsuit is for removing the child from Virginia without his knowledge shortly after birth so that he could not prevent the child from going to Utah (which he could haev done under Virginia law had he been aware).

    • As I recall, the UT court held that he waived the claim that moving the child to UT was improper, didn’t it? Is there other litigation in VA currently where this claim has been raised?

      • Yes, there was a Virginia custody case filed shortly after the baby was born. The Virginia judge ruled in his favor and said the child should be returned and shouldn’t have been removed. The case he lost in Utah was about trying to get the Virginia ruling enforced in Utah.

      • Also, some state supreme courts have ruled PKPA claims cannot be waived, while others like Utah have ruled they can be waived (disagreement between states as to whether it’s a subject matter jurisidction issue), it’s possible Virginia is one of the former and holds it can’t be waived, as the judge invoked that in giving him custody in Virginia.

        • In general waiver doctrines (when issues are waived by virtue of not being raised) are questions of state law. UT apparently does allow waiver and says that he waived PKPA by not raising it. I don’t know about VA–perhaps here, too, they differ from UT.

          • From what I read, it’s not so much a matter of actual state law, and more that the supreme courts of different states are reading the one federal law (the Parental Parenting Kidnapping Act) and not all interpreting it the same way.

            • I’m not sure and I think I might be out of my depth. UT thinks the PKPA was waived and I guess under UT law it was, because waiver is a question of UT law. VA thinks PKPA applies and favors resolution in VA. I suppose UT hasn’t really told us a thing about what it thinks the PKPA actually requires, when you think about it. And I suppose one reason the S.Ct. might not have taken the case is there is no broad and general issue to be decided here. It could have reasonsed that at most there are narrow and unusual questions and since it takes so few cases, this might not strike them as worth the time. But that is only speculation.

              • From what I understand – issues of subject matter jurisdiction can never be waived, correct? Some state supreme courts have read/interpreted the PKPA as intending to remove subject matter jurisdiction which would mean a PKPA argument can be brought up at any stage of the legal process including for the first time on appeal. Utah interpreted the law to be only a personal defense and so it can be waived. Until either a federal court or the US SC takes a case related to the PKPA or if Congress decides it’s enough of an issue to modify/clarify the law, the current situations of different state supreme courts having interpreted the law differently will continue.

  3. Now that I have a bit more time to leave a more detailed comment – basically, what Wyatt is suing for is actions taken in Virginia that caused harm to him – the loss of his parental rights that Virginia would have protected had he not been a victim of fraud. He’s suing in a federal court I believe due to “diversity of citizenship” since the actions being sued for occured entirely in Virginia, but some of those involved are not Virginia residents. He’s not suing over what happened in Utah later, but rather what happened in Virginia to allow the later events in Utah to occur – the discussions between the mother, agency, and lawyers, the hiding of the baby and prospective adopters in Virginia hotels under false names, the misleading statements to the father that she would not be placing the baby after all, leaving out known information on the interstate placement paperwork, etc. Because Wyatt supported the mother during the pregnancy and because all the events happened before the time period for him to ask a court to recognize his rights expired, had the birth and adoption plan not been hidden from him, a Virginia court could have protected his rights and required notification of the out of state transfer attempt, which he then could have acted to block. So his argument is that under Virginia law, actions taken in Virginia fraudulently deprived him of the opportunity to prevent his child from being taken across state lines for an adoption in a state that would not recognize the rights he preserved in Virginia, thus causing him to lose parental rights that would otherwise have been recognized had the child not been moved out of state.

    • To start with a technical (and really off the main point) question, I wondered if there could be diversity because it seems like Wyatt is a VA resident and so is at least one of the defendants. You must have complete diversity. But that’s really the civ pro professor in me talking.

      I see the nature of the claim he’s making, in a general sort of way. What I cannot quite wrap my mind around is this: He can only prevail if something he would have had was taken from him. Now I see two possible things he might say he would have had. One is the right to litigate in VA. The other is his parental rights. It seems like it is the latter he wants to claim. But according to UT he never had any parental rights. If that is so then he has lost nothing and cannot win.

      Now VA law is different and had VA made the decision he probably would have had parental rights. But can VA make the decision now? Does that mean that his claim is really that what he last was his right to litigate in VA and take advantage of VA law?

      I just don’t feel like I’m seeing this clearly yet.

      • He does have parental rights in Virginia, a Virginia court already ruled that years ago. His case was filed in Virginia prior to a petition for adoption even being filed in Utah. The Utah case was about trying to get that ruling enforced in Utah.

        • Right–there’s yet another proceeding in VA. Sorry–I missed that. I’m not sure I’d agree with your characterization of the UT action, but that’s fairly unimportant.

          The real messiness here is that you have two states, two sets of laws, each state apparently convinced it can use its own law and no apparent means of harmonizing it all. (The US SUpreme COurt denied the cert petition in the UT case, right?) IS the goal of the VA action to obtain damages in the hope of forcing some conciliation with the child, do you think? Or is it really about principle?

          • Judging from the tone of the opinion, I am guessing they are trying to discourage this from happening in the future, though it’s certainly possible that some people, in this situation, would settle and offer visitation if they felt they had no chance of winning and didn’t want to be bankrupt.

            I am not sure if the USSC denied the case or hasn’t gotten to the petition yet, and I don’t believe they’ve ever taken a case like this (two states both claiming to have jurisdiction over one child and arriving at completely different custody decisions). And while I am sure anyone in case like this would try to avoid moving, it makes me wonder how a third state would decide which ruling to honor in a case like this.

            • The cert petition was denied on March 19.

              The variations in state law regarding custody and such like are what lead to enactment of some uniform statutes like the UCCJEA (which is supposed to ensure that only one state system at a time takes a case involving a particular child.) As I recall these aren’t federal statutes but rather are uniform states that are enacted by the states to ensure some kind of coherence. As this case demonstrates, though, it doesn’t always work out that way.

              • I hope at some point the US SC takes a newborn adoption case just to set a standard if there’s any minimum amount of time/opportunity that must be provided for a father to have a reasonable chance to comply. The only putative father case they took involved an adoption that did not commence until the child was over 2 years old which means the father would have had 2 years to act and didn’t.

  4. All these cases are leading me to conclude that family law should be federalized.

    • It may have made sense in the early years of this country, but modern travel has made things like sneaky interstate adoptions far too easy now.

      • Technology–and that includes the transportation technology–constantly creates new challenges and also provides new opportunities. I’ve heard that video visitation via skype can be used to really good effect sometime. I don’t mean in any way to detract from your point. The ease of moving around does create new challenges or at least, it makes these sorts of challenges more common and hence, a bigger problem.

        • I can certainly see how that can help a child stay connected with their parents (and other family members) when they can’t live near each other. Especially with a very young child I would think “seeing” the parent would help the child remember better than just hearing a voice on the phone. So that is certainly a plus of technology.

    • By which I take it you mean that it should be uniform in all states? It would make things simpler, but it is at odds with the fundamental idea of the US as a nation made up of sovereign states. In general, it is up to the states to decide the sort of law that is the stuff of day-to-day life. The power of the federal government is limited to those things delinated in the US Constitution. So for example, most law about contractual obligations is state law (though there is a lot more uniformity there). Most crimes are defined under state crimes (and prosecuted in state courts.) Most torts (suits for negligence, etc.) are governed by state law. And most family law is state law. This means each state can enact laws that reflect the preferences of its electorate. So AL can have different rules about taxation (sales tax vs. property tax vs state income tax), about schools, about all sorts of things than does WA.

      I’m not saying this is necessarily a good thing, but it is such a fundamental part of the structure of US government that it is hard for me to see it changing. It’s a grand compromise meant to balance the powers of the states and the federal and thereby ensure the survival of the union itself.

      There are instances where there are uniform standards–for instance, if you take federal highway money, you must agree to let people turn right on a red light (with exceptions for busy intersections) and since everyone wants the money, you can make right turns on red lights all over the country. But truly, these are rather few and far between. And as you can see, the standard wasn’t imposed directly–it was a condition attached to receipt of funding. I don’t think the Congress could have directly ordered right turns on red lights to be the law of the US–it’s beyond the limits of federal power, being a matter properly for the states.

      • Congress could, however, pass a stronger law that makes it more clear who has jurisdiction in a multi state custody dispute though, could they not? The PKPA should make this clearer but states are interpreting it in different ways so perhaps it’s not really working.

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