A Nebraska family court took custody of a child from the only dad he's ever known in favor of the mom who's a felon. The state's Supreme Court overturned the trial court, but not its custody ruling. Here's
an article on the case (Omaha.com
, 7/23/11), and here's
the court's opinion.
Both the trial court's decision and that of the Supreme Court are remarkable, so I'll deal with each in separate posts.
Cesar C. and Alicia L. lived together from 2004 - 2006 and had an intimate relationship although they never married. Some time in 2006, Alicia gave birth to a son, Jaime. Cesar was there at the birth and a day after the child arrived, he and Alicia signed an acknowledgment of paternity that was duly notarized.
For a short time, they continued to live together and raise Jaime. But that all changed in August of that year as the Nebraska Supreme Court explained.
Shortly thereafter [i.e. their return from the hospital], Alicia learned that there was an outstanding federal warrant for her arrest for conspiracy to deliver methamphetamine. Without notifying Cesar, Alicia fled Lexington and left Jaime with Cesar. Alicia was arrested in Colorado on October 5, 2006, and was later convicted and sentenced to imprisonment in a federal facility in Texas. She was in federal custody until August 2008, when she was released to a halfway house in Omaha, Nebraska, where she lived until she moved into a house in February 2009. After arriving in Omaha, Alicia resumed contact with Cesar and Jaime, who for the last 2 years had been living together in Lexington. The relationship between Cesar and Alicia did not resume.
Just so it's clear, when she was released from prison, Alicia stayed in Omaha while Cesar and Jaime, who was then two years old, continued to live in Lexington as before. Omaha is about 200 miles from Lexington.
On June 8, 2009, Cesar filed a complaint in the district court for Dawson County to establish paternity, custody, and child support with respect to Jaime. Cesar asserted that at all times, Jaime had been in his physical care, custody, and control and that they had lived in Lexington Jaime"s entire life. Cesar sought an order declaring him to be Jaime"s father, granting him custody of Jaime, and ordering Alicia to pay child support.
So Cesar hauled Alicia into court demanding child support. She answered his suit saying that, well, maybe he was Jaime's dad after all. Alicia demanded a DNA test to determine paternity and also custody of Jaime and an order requiring Cesar to pay child support.
Uncontested by Alicia were the facts that
immediately after Jaime"s birth, he asked Alicia whether he was Jaime"s father; that Alicia told Cesar that he was Jaime"s father; and that at no time since, until the present action, had Alicia indicated to Cesar that he was not Jaime"s father. Cesar also alleged that Alicia was unfit to have custody of Jaime for various reasons including, inter alia, her involvement with drugs, her conviction "for one or more federal felonies,' and her abandonment of Jaime.
The judge agreed to have genetic testing done to determine paternity and, lo and behold, it turned out that Cesar was not Jaime's biological father. Prior to her answering his lawsuit, Alicia hadn't let on to anyone that paternity was in question.
That's the background. On one hand we have a mother who lied to Cesar and presumably the biological father about paternity. She also lied about paternity to the State of Nebraska and the federal Office of Child Support Enforcement. She had enough of a relationship with methamphetamine that the local U.S. Attorney had a warrant out for her arrest. That by itself probably means some sort of interstate transfer of the stuff. She seems to have been a user as well. After living with her son for only a few days or weeks, she skipped town one step ahead of the law. Once caught, she spent two years in prison. By then Jaime was two years old. When she was released from the halfway house, did she fly like the wind to her son's side? No, she stayed in Omaha, 200 miles away. That's mom.
By contrast, Dad took care of Jaime every day of the boy's life while Alicia was trying to evade capture by the law and cooling her heels behind bars and later just killing time in Omaha.
So to which parent do you think the family court gave custody? Mom of course.
It seems that once the DNA test results came back showing no biological relationship between Cesar and Jaime, the family court applied the "parental preference doctrine" which apparently means an automatic preference for a biological parent over a non-biological one.
Hmm. At this point, I suppose we should mention the miraculous vanishing "best interests of the child" doctrine. Neither the trial court nor the supreme court referred to that concept, which is odd given the fact that we see it in child custody cases with such numbing frequency.
It can't seriously be argued that Alicia was the better parent or that Jaime had any sort of relationship with her or that he didn't see Cesar as the only parent he'd ever known. No, all of those are repeated time and again in cases in which the father seeks custody after some period of absence. And time and again they're used to deny or limit his parental rights. Here? They go unmentioned. Funny how that works.
The court found that Cesar failed to establish that Alicia was unfit to parent Jaime or that she had forfeited her parental rights by substantial, continuous, and repeated neglect of Jaime.
So, yes Mom's a felon, yes she'd spent essentially all of the child's life somewhere else and yes, even when she finally had the opportunity to move out of Omaha to where he lived, she opted not to. None of that suggested unfitness to the trial court. More to the point, none of it constituted "substantial, repeated and continuous neglect of Jaime."
One wonders what a mother would have to do to meet that standard.
What one need not wonder is whether the trial court would have reached the same result if the sexes had been reversed. I think we can be confident of the answer. A dad who's a drug pusher, who ran out of his child's life almost from the moment he was born, spent the first two years of the boy's life in prison and, when he finally had the opportunity to get back in his son's life, didn't take it, wouldn't get the time of day from a family judge, much less custody.
One last thing. Remember that the trial court hung its hat on the "parental preference doctrine" under which nature trumps nurture? Well, remember as well that, although Cesar C. isn't him, there is a biological father somewhere, who can likely be identified. So I wonder, if he showed up out of nowhere and demanded his parental rights, would the preference for biolgical parents apply to him? Given that such a preference exists in Nebraska law, why has no one attempted to give him notice of the proceedings and bring him into court?
It's tough being a dad. Fathers are excoriated every day for not being responsible, but let one be loving, caring and responsible in ways Mom never got close to and guess what happens.
Thanks to Jim for the heads-up.