Utah Unmarried Fathers Finally Win One, But It’s A Limited WIn

If you search “Utah” on this blog, you will find discussion of a few Utah cases that treat unmarried men remarkably harshly.   Utah strongly prefers that children be raised in married families.  When an unmarried woman gives birth if she does not want to marry the father, the state makes it as easy as possible to place the child for adoption.  A genetic father not married to the mother has only a very narrow window of opportunity to declare himself.  If he does not file proper papers before the mother files her consent to adoption he is not a legal father and hence has no due process rights at all.

Today the Utah Supreme Court actually found an application of the statute violated the constitution.  This is news enough that I wanted to get a quick post up tonight.   I have to read the opinion more carefully but at first blush it is hard for me to see this as a case with any broad ramifications. 

Ramsey Shaud is the genetic father of Baby Girl T.   Shasta Tew is the mother of the child.  She and Shaud were in a relationship and lived in Florida when she learned she was pregnant in June 2009.  He wanted to raise the child and she did not.

She went to Utah–where it sounds like she had family–in December 2009.   At that point she still insisted on placing the child for adoption while Shaud wanted to raise the child.

Shaud had the good sense to contact a Utah attorney to file a paternity claim.   A petition and a sworn affidavit were filed on January 12, 2010.  A notice of the commencement of the action was faxed to the Office of Vital Records (OVR) that same day.   The original was mailed to OVR and arrived on January 14.   OVR did not enter the notice into the registry until 9:15 on January 20.

Baby T was born on January 15, 2010–after the original of the petition arrived at OVR but before OVR registered it.   On January 19 Tew consented to adoption.   At 8:30 on January 20 the adoption agency asked OVR to search the paternity claims, but of course, Shaud’s claim wasn’t entered until 9:15 that morning so OVR said there were no claims and the adoption proceeded.   The general rule that one has to comply strictly with the statute was invoked and Shaud’s objections were in vain.

Even I–who you all know am not terribly sympathetic to claims based solely on genetics–find the case an appalling one.  Shaud did everything properly and he did it in time.    OVR, however, delayed recording vital legal paperwork for six days.   (It also appears that someone in the office altered the original arrival stamp that showed January 14 to make it look like it arrived January 20.)

The Utah Court found that Shaud’s due process rights were violated.  He does not have the legal rights of a parent, but he is at least entitled to a chance to develop a relationship with the child.   Interpreting the law so that OVR’s failure to file the paperwork becomes dispositive deprives him of that right without due process of law.

One last quick note–the case is remanded so that the trial court can determine the actual date on which OVR received the notice.   The facts as stated above (and as recounted in the opinion) credit the lawyer’s testimony about when the notice arrived, but this has yet to be finally determined.  Thus there is yet more to come in this case.

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2 responses to “Utah Unmarried Fathers Finally Win One, But It’s A Limited WIn

  1. He also filed in at least Arizona as well which isn’t in the court opinion as it isn’t relevant – and I believe he filed in Florida when she first mentioned adoption.

    Anyways – I believe they will have to amend the adoption act because it is factually true that the father cannot be held to the statute as it reads today – as he has no ability, or authority, or control over when his filing is entered in the registry. Justice Lee’s dissenting opinion stated as much.

    What I find most appalling is that the case was heard in September of 2011 by the Utah Supreme Court and a decision not rendered until last Friday in 2012. Surely the Utah Supreme Court could have acted in a timely manner if as Utah claims – they are so very concerned about the best interests of a child to have a family in the quickest manner possible. I recognise the Utah Supreme Court is different than those elected to write the laws – but they should at least have compatible views in this area. If find the delay appalling.

    • I’m not sure the statute needs to be changed. This is (one hopes) an unusual circumstance and it seems like you could undertstand it as a gloss on the existing statute–a man must do all the stautute commands but he has done that when he has done all that it is in his power to do. If any change is required it would only be a minor one–about what counts as the date he’s done his part–that it would be when received by OVR rather than when OVR gets around to registering it.

      And you are quite right about the time lag. Such a problem in these cases–and there is more delay to come. The lower court now has to resolve the factual question of when the petition go to OVR. I cannot imagine that will happen before year’s end. Thus, the child will be at least 3 by the time any determination is made. And during the whole time I assume she has lived with the adoptive parents. The specter of moving a three-year-old from the only family home she has ever known is not a pleasant one.

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