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June 8th, 2012 by Robert Franklin, Esq.
This case out of Tennessee tests whether nature or nurture controls parental rights (The Republic, 5/16/12).  I’d put my money on nature.

The facts are in dispute, but what’s certain is that six years ago Kelly MacCord gave birth in Dallas to a little boy.  The father of the child was and is incarcerated in a California prison and presumably has no contact with the child or his mother.   At the hospital, Iraq War veteran Jon McMillan was present at the birth and his name was placed on the child’s birth certificate as the father even though he had no biological relationship to the boy.  McMillan and his wife Misty Rich took the child home from the hospital and began to care for him.  McMillan and Rich soon split up, but McMillan kept the child and raised him to his current age of six as his own son.

But 15 months after the child’s birth, MacCord apparently decided she wanted her son back.  Here are McMillan’s and MacCord’s competing descriptions of how McMillan came to have the boy in the first place and what happened after that:

McMillan says MacCord was pregnant and living in Texas when she offered to give the baby to him and his wife because she couldn’t afford to provide for the child. His wife is a cousin of the boy’s biological father.

Instead of formally adopting the child, McMillan says Ayden’s mother agreed to let him be named as the child’s father on the birth certificate and allowed him to be present for the boy’s birth.

“I cried like a baby when I seen him,” said McMillan, who plans on going back to school to be a mechanic. “I was the first to hold him and they had to pry him out of my hands to get him into the incubator so he could breathe. I fell in love instantly.”

McMillan and his wife separated soon afterward, but he has been raising the child as a single parent with the help of his family in Maryville. His estranged wife, Misty Rich, says MacCord gave up her child.

Now here’s MacCord’s version:

MacCord says she and McMillan’s wife were friends, and somehow McMillan managed to get his name listed as Ayden’s father on the birth certificate and she didn’t notice because she was still under the effects of anesthesia. She claims McMillan took off with the baby and police would not do anything because they viewed it as a custody dispute because McMillan was named as the father on the birth certificate.

She said it took a year and a half to locate her son.

I’ve got to side with McMillan on this one.  Hospitals don’t make a habit of allowing men who are unrelated to the mother attend the birth, have their name placed on the birth certificate and walk out with the baby.  The potential civil liability alone would be enough for any hospital to establish protocols for who is allowed to be in the delivery room and who can take a baby off the premises.  So the idea that McMillan was able to insinuate himself into the situation and make off with a child he had no right to is far-fetched at best.

It looks to me like MacCord gave up her child and then had second thoughts later on.

What’s happened since is that she’s gone to court to get her son back.  McMillan has resisted saying he’s raised the boy from birth, treated him like his son and that it would be traumatic for him to be taken from the only home he’s ever known.

But a court in Texas has ruled that McMillan is not the child’s biological parent and an appellate court in Tennessee, where the current action is pending, has directed the lower court to honor that ruling.  McMillan has said he’ll  appeal that decision to the Tennessee Supreme Court, but that appeal looks likely to fail, at least to me.  In that case, MacCord’s way will basically be open to having her son returned to her.  She is, after all, his biological mother, and biological parents have rights, at least most of them do.

The case I wrote about recently in which Todd Withrow lost all his parental rights despite being the child’s biological father is both the same and different.  There, the child was over 10 before Withrow learned of her existence.  Although the facts looked dubious, the court found that Withrow had known about the mother’s pregnancy and done nothing to assert his rights at the time.  Ten years was just too long a time for him to be able to do so for the first time, the court ruled.

In this case, the time period is 15 months, and I doubt any court will deprive MacCord of her rights after just that long.

Legal experts say giving credit to Texas means mother has a significant advantage because McMillan is not related to the child.

“Right now Mom has superior custody rights,” said K.O. Herston, a Knoxville lawyer who practices family law who is not involved in the case.

We’ll see.  Still, it’s hard to tell a man who’s done the day-to-day job of being a father to a child who had neither father nor mother that he’s all of a sudden a non-factor.  ”Thank you. Good bye.”  But I know of no law that allows him to assert parental rights.  He should be able to, but, the law being what it is, I don’t see how.  As things stand, it’s up to MacCord to permit him visitation or not.

Should we have laws acknowledging the rights of those who do what McMillan has done?  If so, what should that acknowledgement look like?  I don’t have a ready answer.

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