November 25, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
An adoption case in Utah that continues to unfold is perhaps the single hottest piece of family law news in the country right now (Deseret News, 11/23/15). For several days, local news media were reporting that, once again, a single father had had his child taken from him by the legal system that knew full well who he was, where he was and that he did not consent to his daughter’s adoption. Indeed, Dad Colby Nielsen had his daughter in his hands when authorities took her from him and handed her to an unnamed adoptive couple.
Outrageous as Utah’s adoption laws are, that was a first. Usually, unmarried mothers who want to give up their children for adoption without the consent of the father do so at a greater remove. That mostly involves hiding from the dad until the process is well under way or even complete. If Dad fails to jump through the many legal hoops put between him and his child - as many do — then he loses his rights. But that’s all usually done out of sight in courtrooms, lawyers’ offices and adoption agencies. For the first time, the father actually had his infant in his arms when he was forced to give her up.
As such, the blatant anti-single father bias of Utah’s adoption laws was laid bare for all to see. And guess what happened. Social media weighed in heavily on his side.
The pleas of Nielsen's family for public scrutiny of his daughter's custody situation were met with resounding support online. More than 40,000 people had liked a Facebook page titled "Get Baby Kaylee Home to her Daddy" as of Monday evening. A GoFundMe donations account, presumably created for legal costs, had raised close to $20,000 from more than 750 people in just three days. A petition on the White House website associated with Nielsen's case was posted Saturday, calling for an investigation into Utah's adoption policies, which it called "civil rights atrocities." The petition had gained 2,240 signatures as of Monday.
And the adoptive parents changed their minds.
"Sadly, misinformation has caused immense pain and suffering by all parties involved. Our hearts go out to both biological parents. We are formally relinquishing all custodial rights. We are happy to have reunited Kaylee with her loving biological mother," the statement said in part. "We believe the couple, if unfettered by legality and other pressures, will be able to decide what is best for Kaylee. This is how the situation should have always been resolved. At no point has Kaylee ever spent a 24 hour period away from one of her biological parents."
First, let me congratulate these two people for doing the right thing. In all these adoption-by-fraud-or-deceit cases, there’s always the option for participants to simply abandon their own legal rights and do the right thing. Nothing prevents mothers from changing their minds and allowing fathers a say in the adoption process. Yes, nothing in the law requires it; they can use their rights as swords to defeat the wishes of fathers and to take innocent children from their dads, but they need not. They can always simply recognize the fact that doing so is both morally wrong, bad for the child and deprives another child somewhere of the adoptive parents he/she needs.
The same holds true for adoptive parents. At any time in the process they too can choose the right thing, the moral thing. That’s what these parents did, and good for them for doing so.
Well, not quite.
For reasons I can only guess at, they handed the baby over, not to Nielsen who, along with his family, had cared for her for two weeks of her three-week life, but to the mother who, by all accounts, had her parental rights terminated in the adoption process. From where I stand, that looks like a bid by the adoptive parents to put the power over the outcome of this ever-changing situation in the hands of the only person who doesn’t want the child. Strange, to say the least. Strange and wrong.
And when I say “power,” that’s just what I mean. After all, whatever events led up to little Kaylee’s being taken from her father are, as some would say, “facts on the ground.” The baby’s return by the original adoptive couple changed nothing legally except that they’ve given up their own rights. Did Nielsen fail to register with Utah’s putative father registry in time? Did he fail to file a suit for paternity before the deadline passed? I don’t know exactly what led to his being removed from the adoption process, but he was. Nothing that’s happened has changed that. And likely nothing will.
So, as seems to be invariably the case in Utah adoptions, Mom has the whip hand. If she wants to place the child with another adoptive couple, she can do so and Nielsen can no more stop her than he could three days ago. Outrageous? Of course; this is Utah. But legal? Yes, it’s that too.
Mom obviously knows who’s in control.
Wesley Hutchins, Nielsen's attorney, said he and his client met with Kaylee's mother Monday evening in the small Cache County town of Lewiston to discuss a plan of action on behalf of the baby girl. After the meeting, Hutchins said the woman proposed a plan under which she would assume primary custody of the baby and Nielsen would be allowed visitation. The negotiation failed to reach a resolution and it was possible the custody fight would extend to the courts, he said.
So Mom has gone from wanting — and having — nothing to do with Kaylee, to wanting — and having - primary custody of her. That’s plainly a woman who knows her rights under Utah law. Attorney Hutchins knows as well.
Hutchins said at a press conference Friday that under Utah law, Kaylee's mother could legally place her for adoption without Nielsen's consent. But he promised he would draw from recent case law to fight the adoption in court.
"To take his child away from him after raising her for two weeks, or any significant period of time, is reprehensible — and it is contrary to the most basic notions that we hold dear as Americans," Hutchins said at the time.
Those are not the words of an attorney with a strong legal position. They’re the words of an attorney who has only morality and public sentiment on his side — things that don’t carry much weight in courtrooms.
Still, if this mother tries to re-place Kaylee for adoption, her name will almost certainly be made public via social media. She’s not very popular now, but if she took that step, she’d be a pariah. My guess is that she’ll go for primary custody and that this will devolve into a good old fashioned custody battle. If so, it’ll be an interesting one, pitting, as it will, a father who’s never wanted anything but to be Kaylee’s dad against a mother who, via subterfuge, did her best to get rid of her daughter.
Will Utah courts find a way to overlook the obvious — that Mom doesn’t want this child and Dad does? They’ve certainly done more outrageous things before, so why not that?
And what if Mom does go for a second adoption, and what if she succeeds? This is a highly public case and one in which public opinion is all on Nielsen’s side. Could it be the catalyst for reforms to Utah adoption laws that have long been a national disgrace?
Whatever happens, this one is a case to follow.
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