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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.  

February 16, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

The many curious, complicated and sometimes downright crazy ways courts find to keep fathers out of children’s lives are amazing to behold. This is yet another, and it bears remembering (Wisconsin Court of Appeals, 1/21/15). Here’s an article on the ruling (State Bar of Wisconsin, 1/23/15).

Scott R. and Heidi R. were married in 1990. During their marriage, Heidi gave birth to five children. In 2006, the two separated for a time and then got back together around Christmas of that year. During that period of separation, Heidi had sexual relations with Stuart S. In August, 2007, Heidi gave birth to a daughter, A.R.R.

In 2012, Scott filed a petition for divorce. In April, 2013, Stuart and Heidi had genetic testing done on A.R.R. that revealed that Stuart, not Scott was her father. Stuart then intervened in the divorce proceeding by asserting his paternity of A.R.R. Of course, since Scott and Heidi were married at the time A.R.R. was born, Wisconsin law presumed Scott to be her father. So the question before the trial and appellate courts was whether Stuart, being the unquestioned biological father of A.R.R. would be permitted under Wisconsin law to rebut the presumption of paternity and acquire enforceable parental rights to A.R.R. Entirely unmentioned was the issue of whether A.R.R. would have the right to Stuart’s care, protection and love.

Both the trial and appellate courts ruled that Stuart, despite being the little girl’s father, is entitled to no parental rights. How did they come to that conclusion? The legal issue was whether Stuart had formed enough of a relationship with his daughter for it to be in her best interests for him to be legally dubbed her fathers. The courts answered ‘no.’

Now, as far as it goes, the courts’ rulings can be called right on the law. As I’ve mentioned too many times to count, in the United States, unmarried fathers, unlike unmarried mothers, have to prove their parental worth before they’re allowed to have parental rights. The Wisconsin Court of Appeals cited some of the relevant U.S. Supreme Court language to that effect.

[P]arental status that rises to the level of a constitutionally protected liberty interest does not rest solely on biological factors, but rather, is depend[e]nt upon an actual relationship with the child where the parent assumes responsibility for the child’s emotional and financial needs.

Of course readers of this blog will immediately notice the problem with that legal standard; it places the supposed constitutional rights of the parent without possession of the child (almost always the father) in the hands of the parent with possession (almost always the mother). To the extent that a mother permits an unmarried father to have access to- and establish bonds with- his child, he can be a father. To the extent she refuses, he’s out of luck. In what may be the single strangest judicial construction of “rights” anywhere, the parental rights of unmarried fathers in this country are placed squarely in the hands of the women with whom they have sex.

As I’ve said before, nowhere else in American jurisprudence does this occur. Nowhere do we place the rights of one compos mentis adult in the hands of another person. The closest analogy is to the situation in which an adult is so mentally or physically impaired that he/she cannot care for themselves. In those situations another adult may be appointed by a court to care for and exercise the rights of the impaired individual. That adult becomes the guardian of the impaired person, the ward. That unmarried fathers are, when it comes to their constitutional rights as parents, most closely analogous to mental incompetents says a lot about the state of the law on unmarried fathers.

Still, that is the law, so it’s worth investigating how it was applied to Stuart S., yet another unmarried father seeking a relationship with his child. As we might expect, when Scott, Heidi and Stuart testified at trial, they didn’t agree on all aspects of what Stuart had done to play the part of father to A.R.R. Recall that she was born in 2007 and no one knew that Stuart was her father until 2013 when she was almost six.

But suffice it to say that, on the plus side, Stuart had formed a close relationship with the child almost daily from the very first.

Heidi testified she first brought A.R.R. to Stuart’s farm shortly after A.R.R. was born. She continued visiting Stuart’s farm with A.R.R. “bidaily” during the first year of A.R.R.’s life—both because she had animals there and because she wanted Stuart to see his daughter. Heidi testified she and Scott moved in across the street from Stuart when A.R.R. was two, and after that A.R.R. saw Stuart “almost daily.” She also testified Stuart would visit her home and read A.R.R. books. In 2009, A.R.R. began staying overnight at Stuart’s house on a regular basis…

Heidi further testified Stuart paid her between $200 and $600 each month to support A.R.R., and Scott knew about the payments. She also stated Stuart purchased birthday and Christmas presents for A.R.R. after she turned two. In addition, Heidi asserted A.R.R. spent some holidays with Stuart and his family and developed relationships with Stuart’s siblings.

Heidi testified A.R.R. began referring to Stuart as “dad” when she was about two or three. As of February 2014, A.R.R. called both Scott and Stuart “dad,” and she also referred to them by their first names. However, Heidi asserted A.R.R. had more father-daughter contact with Stuart than with Scott.

Stuart testified Heidi first brought A.R.R. to visit his farm when A.R.R. was three days old. He asserted Heidi and A.R.R. visited him every other day until A.R.R. was about one year old… A.R.R. began staying overnight at his house in 2009, when she was about two-and-a-half years old. They went swimming together and attended horse auctions, garage sales, flea markets, and church services. Stuart testified he paid Heidi cash on a monthly basis to support A.R.R., and he purchased birthday and Christmas presents for her. He also testified he and A.R.R. hug and kiss each other in a manner characteristic of a father and daughter.

In short, Stuart had about as full a relationship with a child as was possible given that she lived with her mother and her mother’s husband. Indeed, the trial court called his a “substantial relationship” with his daughter.

Of course there were things Stuart didn’t do for A.R.R. which both courts detailed and on which they based their decision to deny him parental rights.

A.R.R. had lived with Scott for most of her life;

Stuart was not listed as A.R.R.’s father on her birth certificate, was not present for her birth, and did not take any steps to assert paternity until she was five years old;

Stuart did not perform any day-to-day parenting responsibilities during the first two and one-half years of A.R.R.’s life;

Although Stuart provided some financial support for A.R.R., he paid “what he felt like, when he wanted to[,]” which was less than he would have been required to pay under the applicable child support guidelines;

Stuart never provided health insurance for A.R.R.;

The timing of the paternity action appeared to be motivated by a desire to give Heidi an advantage in the pending divorce case; and

Stuart was more like a “father of convenience” than a true father.

Where to begin? Let’s start with the Supreme Court’s theory that parental rights aren’t matters of pure biology, but come into existence when an unmarried father forms a real-world relationship with his child. I don’t wish to be blunt, but that’s at best half true.

Let’s say John and Jane, who aren’t married, have a sexual relationship. Unknown to him, she becomes pregnant and breaks off their relationship. She gives birth to the baby and raises it to a certain age all unknown to John. But then finances get tight, so she files suit against John for child support. Or perhaps she receives Temporary Assistance to Needy Families and the state then seeks out John for repayment. What happens? He’s adjudicated to be the father and made to pay child support, but guess what else. He’s now a father with parental rights. He can seek and receive a court order allowing him visitation with the child he never knew existed, the child toward whom he’s in no way acted the part of father or indeed any other part. If Mom proves an unfit parent, he can conceivably get sole custody of the child.

Our fictitious John hasn’t done 1/1,000th the parenting of his child that Stuart did of A.R.R. So why is he vouchsafed his parental rights but Stuart isn’t, particularly in view of the Supreme Court’s emphasis on the value of the parent-child relationship? Is the U.S. Supreme Court simply wrong about the law?

It is not. To be specific, when an unmarried father seeks parental rights, the Court is correct; he must have established a father-child relationship in order to prevail. But when a mother seeks child support or the government seeks reimbursement of welfare benefits paid to her, another set of rules applies.

I’ll write more on this tomorrow.

Thanks to Don for the heads-up.

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