This ties back to a thread that was ongoing before the Supreme Court decided the posthumous children case earlier this week. I don’t think I can really summarize the whole thread, so it will be easier if you poke around a bit. I’ve been thinking about the case involving John Wyatt.
Wyatt is the biological father of a child born to Emily Fahland. Though the child was born in Virginia, the child was adopted under Utah law by a Utah couple. As I’ve discussed in the past, UT law is remarkably hostile to single fathers–largely because of a (conservative, I think) preference for having children raised in married heterosexual families.
You can discuss UT law as a general policy preference, and I think you will find some of that in the earlier posts. But it’s also useful (and often more engaging) to examine how the law works in specific cases. This is why I’ve been following Wyatt’s case.
Wyatt’s case is very sympathetic, at least as far as you can tell from the sources drawn on so far. Of course, as is often–always?–the case, there is at least one other side to the story. If you go and look at the brief in opposition on the petition for certiorari in Wyatt’s case you’ll see this is true here, too. (I cannot post it–I think there are copyright issues. It is reported at 2012 WL 549275 for those who have access. ) I make no pretense that I know what facts are real–all I want to say at this moment is that we don’t actually know what is real. And this makes focussing too much on any single case a little risky.
But there’s a larger point I have been mulling over. As I said, Wyatt’s case seems to be a sympathetic one. That was also true in the case of Lehr v. Robertson, an older Supreme Court case I’ve discussed in the past, that many–me among them–find troubling.
Any time you face a troubling outcome in a case or a hypothetical it ought to lead you to examine the rule that leads to the outcome. So you can look at Wyatt and see it as an indicator that something is wrong with the system that UT has in place. But to figure out what is wrong (and perhaps more importantly, what a better system might look like) you have to think carefully about what facts about Wyatt’s case are most important. It’s not enough to be generally sympathetic.
Here it seems to me that it might be important to note that Wyatt (at least in his version of the facts) made some significant efforts to stay on top of things. (I won’t review the facts he asserts but you can read them in the petition for certiorari Wyatt filed.) Under these circumstances, if we assume that Wyatt should have had a case for notice, why is that? What would the right rule look like?
What struck me is this: Wyatt is a biological father of the child but his case is based on a great deal more than just claiming a genetic link. Thus, it’s perfectly possible to think that 1) genetic linkage isn’t determinative of legal parentage and 2) Wyatt should have a claim. And that is really consistent with what Lehr suggests–biology alone is not enough to give rise to legal parenthood.
Perhaps this was obvious to everyone all along, but I think I’ve been reading Wyatt’s case as though it were an assertion of rights based on genetic relationship. That’s sloppy thinking on my part. On reflection I don’t think that is a correct understanding of his claim. His claim is based on his conduct at least as much as it is based on biology. (I should note that any decent lawyer representing Wyatt would structure the argument this way–he has a stronger case than would a man who relied exclusively on genetic linkage. You’d surely want to argue from the sum of all the facts.)
And this leads me to a series of critical questions. If you think Wyatt is entitled to more notice/consideration than he received, what are the crucial facts on which you base that entitlement? Is it genetics alone? Is it genetics in conjunction with actions that Wyatt took? Which actions? Would a man who did less than Wyatt but claimed a genetic link be entitled to notice? How much less? Or would a man who did what Wyatt did but turned out to be mistaken about the genetic link be entitled to notice?
This matters because the goal in law isn’t just to resolve specific cases. It is to establish rules that will then govern other cases. That means you have to be able to formulate the rule and say something like “If a unmarried man [genetically related?] to a child does A, B and C, then he is entitled to participate in adoption proceedings.” What should the rule be here?
In thinking about all this I am reminded of the risks inherent in this sort of case specific reasoning. It’s easy to be moved by sympathetic facts, and perhaps too easy to therefore overlook the painstaking analysis of exactly which of those sympathetic facts is critical.