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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.  

December 11, 2013 by Robert Franklin, Esq.

Barbara Kay’s been reading my mind again. Here she takes on the travesty that is the adoption industry in many states (National Post, 12/10/13). In the case she writes about, that state is California, the same one I’ve written about numerous times. The issue is the radical sexism of California laws governing adoption when the parents aren’t married.

A year ago 19-year old Preston King was a light-hearted young Southern California man in love with his high school sweetheart. Her pregnancy changed their lives dramatically. But, even though the couple’s relationship deteriorated and they chose to live apart, King accepted approaching fatherhood with admirable commitment and indeed pleasure.

As the birth date approached, though, King was shocked to learn that the mother planned to give the baby up for adoption, whether or not he agreed to it. The adoptive couple had already been selected by the mother, and King was invited by an adoption agency – via text message – to meet them. King immediately petitioned the Orange County courthouse for paternity testing, and in the weeks leading to the birth, went to court several times to claim his paternal rights.

In spite of his best efforts, though, King was not allowed to sign a declaration affirming his fatherhood and was denied the right to paternal mention on the birth certificate. After King spent a mere 15 minutes alone with his baby, born September 7, the infant went home with his adoptive parents.

King continues to press for DNA testing and the right to parent his child.

According to a Facebook page created to tell his side of the story – the mother claims King was not an engaged father-to-be or supportive of her needs – Mr. King was both engaged and supportive. He maintains he attended medical appointments, bought maternity clothes, pampered his ex with spa treatments and excursions, and bought baby furniture, a layette and decorative accessories for the nursery.

The nationwide rate of unmarried childbearing is about 42%. That means what we do with children when their parents aren’t married is vastly more important than it was 50 years ago when the rate was about 8%. Unfortunately, the laws in California still make the same assumptions that were popular way back in the 1960s. In a nutshell, they assume that a man who impregnates a woman who’s not his wife cares nothing about her or the child. They assume the exact opposite about her.

Therefore, as Kay rightly points out, an unmarried mother’s biological relationship to her child is all –important. That alone provides her the full panoply of parental rights imagined by state law and the United States Constitution.

But California law is sexist. The father of the very same child has no such rights simply because he’s the dad. In order to bring those rights into being, he has to do various things to prove his worth as a father. Generally speaking, he has to act like a father-to-be who’s enthusiastic about the advent of his child and fully capable of caring for it once it arrives. That means taking care of the mother financially, attending medical appointments, buying clothes, furniture and toys for the child, preparing a place for mother and child to live and having a well-thought-out plan of childcare.

Or does it mean that? The simple fact is that California law nowhere spells out what a new dad is required to do to establish his parental rights. What is enough? What’s too little? The law and the courts let fathers guess (in the unlikely event they even know the law). The only time a father can find out is when a probate court judge issues his/her order. For dads, it’s a crap shoot.

And, as Kay so assiduously explains, while the Golden State is examining the single dad under a microscope, the single mom gets a pass. Does she have a job? It doesn’t matter. Has she ever cared for a child? It doesn’t matter. Is she mentally, emotionally, financially prepared to raise a child? It doesn’t matter. Does she have a parenting plan? It doesn’t matter. Who will care for the child when Mom is ill or at work? No one asks. Is she a felon? The state couldn’t care less.

When a mother – who might be poor, shiftless, unemployed, or otherwise disadvantaged – chooses to keep her child, the state does not intervene, and in fact will support her, if the child’s father (biological or presumed) cannot be run to ground. In the case of mothers’ rights, biology always trumps all other considerations.

A clearer example of sexist bias in parental rights would be hard to imagine. The worst mother in the world has unquestioned parental rights solely because she gave birth. The finest father has to prove the fact… if he’s allowed to.

Aye, there’s another rub. Not only is the father required to prove his worth as a parent, nothing requires Mom to allow him to try. If she doesn’t want his money, his caring, his attention, etc., if she runs away and hides so he either doesn’t know he even has a child on the way or can’t perform the feats necessary to preserve his rights, well, that’s just his hard luck. His parental rights are in her hands, as is so often the case.

As I’ve mentioned before, these are adults we’re talking about and parental rights have been enshrined by the United States Supreme Court as perhaps the most valuable rights we have. And yet, when it comes to those rights, we literally treat fathers as if they’re mentally unable to care for themselves. That’s because only then does the law permit one adult to exercise the rights of another adult. When an adult is so impaired that a court has found him/her unable to care for themselves, unable to handle their own finances or the daily requirements of life, a guardian for that adult may be appointed. In that case, the guardian exercises the rights of the impaired adult.

That’s how California law treats single fathers who seek to stop the adoption of their child. It assumes they’re not up to the job of fatherhood and places the onus on them to prove – if Mom allows them to – they are. It gives us some idea of the level of disrespect accorded single fathers by the State of California, but in fact it’s worse than that. No state, California included, would dream of taking away the rights of a mentally impaired person without due process of law. Those people are routinely provided a hearing to prove they’re capable of caring for themselves and a guardian ad litem is appointed to make sure their rights are protected.

Single fathers get no such consideration. Again, if Mom wants to deprive Dad of the opportunity to be a father to his child, she can and no court has ever punished a mother for doing so. Like no one else in all of Anglo-Saxon jurisprudence, the single father’s parental rights (that the Supreme Court has called “far more precious than property rights) are routinely permitted or denied, not by courts using due process of law, but by the mother’s whim.

And of course we’re talking about adoption and the power vested in mothers to decide whether a father’s child is raised by him or by adoptive parents. As with every other state, California gets it wrong. In its eagerness to promote adoption and to help adoption attorneys make their yacht payments, the state eagerly shoves fathers aside and, in so doing, forces adoptions on children who don’t need them because they have fit fathers like Preston King. In the process, they deny to children who truly have no parents (either because they’re dead or because their rights have been terminated) good adoptive parents.

Adoptive parents are a resource that’s far too scarce to meet the need for them. At any given time in this country, there are some 425,000 children in foster care who need to be adopted, but there are only about 125,000 adoptions completed each year. Worse, about 75,000 of those adoptions aren’t strangers adopting children out of foster care, they’re stepparents adopting the children of their new spouse. In other words, only about 50,000 children are adopted out of foster care, fewer than one-eighth of the total.

So when the State of California forces adoption on Preston King’s child, it’s simultaneously telling another kid somewhere in the state “Sorry little Andy or Jenny, we know you’d love to have a real set of parents, and the ones who adopted King’s child would have been ideal, but that’s just too bad. We gave your parents to a child who already had a father. I know it doesn’t make sense, but maybe you’ll understand when you’re older.”

Or maybe not. I’ve been trying to figure it out for years without success. Thanks to Barbara Kay for grappling with the same problem.

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National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

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