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February 4th, 2013 by Robert Franklin, Esq.
In New York a man, Dr. Jonathan Sporn has a child.  The little boy is about six months old and Dr. Sporn has cared for him from the time he was born.  Indeed, his involvement in his son’s life extends well before the boy’s birth.  But, under New York law, Dr. Sporn is a stranger to the boy.  Legally, he has the same relationship, the same rights, the same duties as I do.  Read about it here (New York Times, 2/2/13).

Sporn’s problems are twofold.  First, he’s never been married to the boy’s mother, Leann Leutner; second, the child was conceived via in vitro fertilization using the sperm of an anonymous donor.  So Sporn has no biological relationship to the child.

Still, Sporn and Leutner loved each other, lived together and decided as one to have a child.  With the aforementioned assistance, they did so, and little Lincoln Amory Aurelian Sporn Leutner was born last July.

Dr. Sporn’s petition offers a moving portrait of his investment in fatherhood, outlining the joy he took in his son’s birth, the willingness with which he changed diapers and bathed the baby. He found himself falling “deeper and deeper in love” with the child. “I looked forward to his cries in the night just to have another opportunity to hold this child in my arms and soothe him back to sleep,” he says in court documents.

But Leutner had suffered psychological difficulties for years and had more than once attempted suicide.  That history, combined with postpartum depression led her in December to take Lincoln to New Jersey, rent an apartment and take her own life.  Lincoln was immediately placed in foster care where he remains to this day.

What of Dr. Sporn, the man who desired a child, helped Leutner conceive, supported her during pregnancy, supported Lincoln after he was born, cared for him like a parent and bonded with the little boy from the very first?  He’s a non-person according to New York law. And what of Lincoln, the innocent, helpless infant whom social science tells us bonded long ago with the man he saw as father, Jonathan Sporn?

[The judge in the custody case] also said it was in the best interest of the child, and the city, to settle the matter quickly. And yet, Lincoln technically occupies the Dickensian status of “destitute,” a term new to New York State family statute pertaining to children who have no known parents.

Despite his obvious connection to the Lincoln, despite his love, care, concern and support, and despite Lincoln’s connection to him, Leutner’s sister, who lives in Illinois, has asserted a claim for custody and legally has as much right to it as Sporn does.  At some point, some judge will decide the matter and I’d like to suggest a sensible way to do so.

Supreme Court Precedent Should Guide Court to Give Sporn Rights

In a string of cases going back to at least the early 70s, the United States Supreme Court has outlined what an unmarried father has to do in order to assert a claim of paternity.  For example, here’s a quotation from Lehr v. Robinson which in turn quoted earlier precedents:

When an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the Due Process Clause.

Now of course Sporn, unlike Lehr, is not the biological father of the child in question.  Lehr and its antecedents all involved men whose sperm had helped produce the children over whom they asserted parental rights, so perhaps Sporn can’t point to those cases as controlling the court’s decision.  But he can accurately say, as those opinions do, that what’s most important in deciding the rights of an unmarried man to a child is his day-to-day involvement with it, his nurturance of it.  That’s not just important legally of course, but actually, emotionally, psychologically for the child.  A child learns who his father is within a month of birth and can differentiate between his parent’s voices and touch.  Given Sporn’s hands-on fathering, Lincoln surely identifies him as his father.  Shouldn’t the court?

The argument will be made of course that to allow Sporn to be the child’s father would be to allow any man to be the father of any child just so long as he cares for it for some period of time.  That’s true and is as it should be.  In the first place, we’re not talking about an everyday phenomenon.  It’s vanishingly rare for a man to sneak into a newborn’s life and play the part of father against the will of its actual parents.  Indeed, in 15 + years of advocacy for fathers, I’ve never seen it happen.

That means that men who are the victims of paternity fraud and have cared for children not biologically their own should be able to assert their parental rights.  After all, those children too identify the man as their fathers irrespective of whose DNA they’re actually comprised of.  (Of course I also think the biological father in paternity fraud cases should be able to assert parental rights.  The fact that such a situation would give little Andy or Jenny two fathers is no different from what happens when Mom divorces and remarries, something that happens many times a day in this country without so much as the blink of an eye.)

Day after day, courts intone the mantra of ”the best interests of the child.”  Often as not, those are just words, a pretense to cover anti-father/pro-mother bias, but sometimes judges actually mean them.  This is a clear case in which those words can actually mean something.

No man who’s done what Sporn has done should be denied his child.  No child with a protector like Sporn should be denied his father.

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