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NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

January 24th, 2013 by Robert Franklin, Esq.
Over the tireless efforts of his partner to prevent it, a Virginia father, William Breit, has succeeded in securing his parental rights to his daughter.  On January 10th, the Supreme Court of Virginia finally swept away the objections of the mother of Breit’s child to his active parenthood.  Here’s the Supreme Court case and here’s an article on it (Washington Post, 1/10/13).

Breit and partner Beverley Mason lived together for years, and in 2008 decided to have a child together.  Unfortunately for them, they were unable to on their own, so they sought the services of a physician who was expert in the art of assisted conception.  With Mason providing the egg and Breit the sperm, the doctor was successful at implantation.  Mason carried the child to term during which the pair continued to live together and Breit attended medical appointments as well as the birth on July 13, 2009.  Breit is listed as the child’s father on her birth certificate and one of her names is that of his maternal grandmother.  Her last name is Mason-Breit.

Prior to the birth, Breit and Mason entered into an agreement providing that Breit should have reasonable visitation and agreeing that same was in the girl’s best interests should Breit and Mason split up.  On the day after the birth, the two signed an “Acknowledgement of Paternity” stating that Breit was the child’s legal and biological father.  The couple sent out birth announcements and told friends and relatives that Breit was the girl’s father.

But, in a switch whose significance escaped the notice of both the state Supreme Court and the Washington Post, the pair split up a mere four months after their daughter’s birth.  Despite the split-up, Breit continued to maintain his paternal role including visiting her, supporting her financially and carrying her on his policy of health insurance.  That went on until August, 2010 when Mason cut off all contact with Breit and barred him from seeing his child.

Now, to those familiar with the ways of family courts and family laws, Mason’s behavior shouldn’t be a surprise.  After all, when a couple stays together for years, decides their relationship is solid enough to have a child, has a child and then four months later splits up, something smells fishy.  My guess is that Mason knew about a Virginia statute that states that any sperm donor who’s not married to the mother of the child produced using his sperm cannot be legally deemed the child’s father.  (Of course if the mother receives federal welfare benefits, regardless of what the Virginia statute says, that man will be established as the father, made to pay child support and be accorded parental rights.  So the statute is solely aimed at cutting off the father’s rights, not his duties.)

Breit filed suit to assert his rights and, tellingly, Mason doggedly resisted every step of the way through the judicial system.  Given the facts that (a) the two split up just four months after the birth, (b) Mason terminated all contact with Breit when the girl was only 13 months old, (c) Mason did everything she could legally to deny him parental rights and (d) there were never any allegations that Breit was anything but a good, loving and responsible father, it seems obvious that Mason had planned this for some time.  It looks like Mason figured she had Breit set up; due to their unique circumstances, he’d given her a child that, in her understanding, she could take from him at will and he would have no recourse.

And the trial court agreed saying Breit had no parental rights despite being the girl’s father biologically and playing an active role in her life both pre- and post-birth.

Unfortunately for Mason, both the state Court of Appeals and the Supreme Court disagreed.  Part of that disagreement has to do with applying two different state laws at the same time to the situation before the court.  But the Supreme Court also ruled that, to allow Mason’s take on the law to stand, would violate Breit’s 14th Amendment Due Process rights and would therefore be unconstitutional.  It would also violate Breit’s fundamental liberty interest in caring for and raising his child.  Finally it would violate the child’s fundamental liberty interest in having a relationship with both her parents.

Constitutional Law Places Fathers’ Rights in Mothers’ Hands

But.  (It seems there’s always a ‘but’ when it comes to fathers’ rights in family courts.)  The court made it clear, as do U.S. Supreme Court precedents, that a father’s biology isn’t what gets him  parental rights.  No, what vaults him to the modest level of father is his active involvement with his child.  In the timeless words of Lehr v. Robinson, “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.”

The same holds true for the child.  When Dad does that, she’s constitutionally entitled to a relationship with him; if he doesn’t, she’s not.

What both the U.S. Supreme Court and the Virginia Supreme Court miss is that, in so ruling, they clearly place a father’s parental rights and a child’s rights to its father in the mother’s hands.  Not a word in Lehr acknowledges that simple concept.  By conditioning a single father’s rights on his “coming forward to participate in the rearing of his child,” the Court frankly allows Mom to prevent that and therefore deny him parental rights.  Indeed, that’s precisely what happened not only in Lehr, but in countless other cases.  The dissent in Lehr describes in detail the extent to which the mother went to deny the father access to his child and the extent to which he tried to locate her and become a part of his daughter’s life.  To the majority, that was all just fine, thank you.  Lehr’s rights were denied to him, by a state law that empowered the mother to completely control an unmarried father’s rights and, by extension, those of their child.  That is the state of constitutional law on the rights of unmarried fathers.

In addition to the frank anti-father discrimination of saying on one hand that fathers have parental rights, and on the other, taking the exercise of those rights from them and giving them to someone else, there’s another problem.  The Bill of Rights and other amendments to the Constitution limit the power of government over individuals by giving those individuals certain rights.  Those rights like free speech, free association, free exercise of religion, the right to confront one’s accuser in criminal court, etc. and parental rights are erected by the Constitution against the power of government because we consider them important.  Indeed, parental rights may be the most important of all.  At times, the opinion in Mason v. Breit reads like a hymn to the importance of the parent-child relationship, not only to the child, but to the parents and the state.

The preservation of the family, and particularly the parent-child relationship, is an important goal for not only the parents but also for government itself…  Statutes terminating the legal relationship between [a] parent and a child should be interpreted consistently with the governmental objective of preserving, when possible, the parent-child relationship.

Thus spake the Virginia Supreme Court, and rightly too.  So isn’t it odd that the same document that has been interpreted as preventing the might and majesty of governments from interfering in the parent-child relationship simultaneously permits mothers to do exactly that?  Father-child relationships are so important (as all acknowledge) that governments may only intervene in them if the father is declared, by due process of law, to be unfit.  But a mother is legally permitted to cut the most loving and responsible of fathers out of his child’s life on the merest whim.

And of course it’s not just fathers who are affected; their children are too.  After all, it’s one thing to tell a father “you should have stepped up to the plate, and, since you didn’t, you  lose you’re rights.”  But the U.S. Supreme Court has been as clear that children have rights to parents just as much as parents have rights to children.  So how is it that we allow mothers to decide children’s rights to fathers based, not on the children’s behavior, but on the fathers’?  That makes even less sense than allowing them to toss aside a father like so much garbage.

The concept is simple.  A single document – the Constitution – cannot rationally be held to say at once that a father’s parental rights are so important the government may not infringe on them and that they’re so trivial that an individual mother may do just that for any or no reason.  Some day some enterprising lawyer will make that argument and some day courts will notice the outrage they’ve perpetrated for decades.

And some day we’ll have laws that say that no father may have his parental rights diminished nor parental obligations established by anyone’s actions but his own.

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