November 26, 2014 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
In France, as in much of the United States, it seems that “possession is nine points of the law.” That old saying of course applies nowhere in Anglo-Saxon jurisprudence except in the adoption of a child (and adverse possession of real estate, an interesting comparison). There indeed, children can come to look very much like chattels that, if one possesses them long enough, become one’s own.
Sound unlikely? No, it’s not unlikely, just outrageous. Spend five minutes or so looking at the law on adoption in, say, Utah or South Carolina and it becomes all too apparent that all an adoptive couple needs to do is lay hands on a child who’s been placed for adoption by its mother and, in almost every instance, the child is theirs. Is there a father out there somewhere, a fit father who passionately desires to love, care for and raise his child? Too bad for him. He failed the all-important test of possession. As we’ve seen in case after case, Mom’s success at keeping the child from him ensures the wholesale destruction of his parental rights.
For decades, that was true in other states as well with some truly bizarre results. Case law in state after state recounts the astonishing lengths to which mothers would go to avoid the fathers, their previous lovers, from learning about the pregnancy or the child. Some mothers moved to state after state and many lied to courts and bureaus of vital statistics. As but one example, here is what happened as recounted by the United States Supreme Court dissenting opinion in Lehr vs. Robertson:
According to Lehr, he and Jessica's mother met in 1971 and began living together in 1974. The couple cohabited for [463 U.S. 248, 269] approximately two years, until Jessica's birth in 1976. Throughout the pregnancy and after the birth, Lorraine acknowledged to friends and relatives that Lehr was Jessica's father; Lorraine told Lehr that she had reported to the New York State Department of Social Services that he was the father. Lehr visited Lorraine and Jessica in the hospital every day during Lorraine's confinement. According to Lehr, from the time Lorraine was discharged from the hospital until August 1978, she concealed her whereabouts from him. During this time Lehr never ceased his efforts to locate Lorraine and Jessica and achieved sporadic success until August 1977, after which time he was unable to locate them at all. On those occasions when he did determine Lorraine's location, he visited with her and her children to the extent she was willing to permit it. When Lehr, with the aid of a detective agency, located Lorraine and Jessica in August 1978, Lorraine was already married to Mr. Robertson. Lehr asserts that at this time he offered to provide financial assistance and to set up a trust fund for Jessica, but that Lorraine refused. Lorraine threatened Lehr with arrest unless he stayed away and refused to permit him to see Jessica. Thereafter Lehr retained counsel who wrote to Lorraine in early December 1978, requesting that she permit Lehr to visit Jessica and threatening legal action on Lehr's behalf. On December 21, 1978, perhaps as a response to Lehr's threatened legal action, appellees commenced the adoption action at issue here.
As you can see, Lehr did everything but put his daughter under lock and key. Despite those efforts, his daughter’s mother managed to keep possession of Jessica and therefore was able to have the child adopted almost literally out from under her father’s nose.
Since Lehr, that was decided in 1983, at least 29 states have made adoption easier on single mothers via putative father registries. PFRs require the fathers of children born to unmarried mothers to file a claim with the state saying that any child born to such-and-such a mother may have been fathered by the man filing the claim. That makes life much easier for unmarried mothers, adoption agencies and their lawyers. Now the dad can know full-well about his child and still be denied his parental rights just as long as he doesn’t know about the PFR. To encourage that ignorance, states have a way of keeping the existence and effects of their PFRs closely guarded secrets. Texas, for example, spends no money to publicize its PFR or to inform single fathers of the consequences of not informing the state of every woman with whom they have sex.
But even in a PFR state, a mother who simply keeps the existence of her pregnancy and the birth of the child a secret from the father has the greatest advantage in terminating his rights. If the case law is any indication, a simple “Our relationship isn’t working out; I need to move on,” is sufficient to keep Dad in the dark about a pregnancy or a child. Doing so of course ensures that Mom keeps possession and Dad doesn’t.
Which brings us to the case of Yoan Delorme of the Department of Loire-Atlantique, as described here (BBC, 11/25/14).
Mr Delorme had no contact with the child's mother after her first three months of pregnancy. After she gave birth in April 2013, he was unaware the baby had been registered without his name and his lawyer tried in vain to locate the boy.
When the boy was two months old, the general council in the western area of Loire-Atlantique placed him with a family for adoption. Hours later, on the same day in July 2013, his father applied for the child not to be adopted and said the child was his.
The local authority said, however, that he had not said what his plans were for the boy and whether he planned to take care of him.
After a court in Nantes ruled in the father's favour in April, the decision was backed last month by the Advocate General, but Loire-Atlantique general council and the public prosecutor then took the case to the appeal court in Rennes, which has now overturned the ruling.
Now, part of the reason Delorme was unaware of his child was that he was in jail during at least part of the mother’s pregnancy. But his fitness as a father isn’t in question; it’s not the reason he lost his parental rights. No, he lost those rights because he didn’t know about the child and, once he found out, he was a few hours too late to assert his rights. Had he known and been able to see and bond with his child, the result might well have been different, but Mom had possession, which meant he didn’t know and could do nothing to assert his rights. That he last saw the mother when she was three months pregnant strongly suggests that he had no knowledge that he’d fathered a child.
Delorme sees the situation all too clearly.
His case was backed by a court in Nantes earlier this year, but the local council appealed as the boy was already settled with his new family.
Mr Delorme aims to fight the ruling.
The latest court ruling also said he had no right to visit his son.
"It's the theft of a child by the general council," Mr Delorme told reporters.
Theft indeed, i.e. very much what can happen to any possession. The general council was able to do that because Mom had the child and refused to inform Delorme of its existence and whereabouts. Simple possession again won out over a father’s rights.
I’ve inveighed many times against this sort of nonsense whereby a mother’s skill at hiding a child is allowed to terminate a father’s rights. In the first place, fathers should, like all other adults, be able to exercise or waive their rights themselves and not have someone else do it for them. Second, that’s particularly true when the “someone else” has objectives that are diametrically opposed to those of the father. Third, it makes no sense at all for a child to be denied a fit biological parent in favor of an adoptive one. There are far too many children who have no parents and who need to be adopted for us to be forcing adoption on children like Delorme’s who objectively do not need other parents. Fourth, when we do so, we deny good, loving adoptive parents to one of those children in need. And finally, the whole outrageous situation takes on an air of the tawdry when we consider it’s all done to line the pockets of adoption agencies and their lawyers. Face it, we’re trafficking in children here.
The answer to all of this is simple: mothers should be required by law to inform every man whom they reasonably believe to be the father of their child about that child. No father should have his rights impaired or his obligations established absent such notice. Once he knows about his child, he can then take up the rights and duties of parenthood or relinquish same and agree to the adoption.
But what we do now is too wrong in too many ways to continue. Children are not assets to be possessed, however much the adoption industry may wish they were.
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