Christopher Emanuel Adoption Case, Part 2

July 19, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

This post continues from Friday’s.

Despite the claims that putative father registries exist to protect the parental rights of single fathers, in fact, the opposite is true. The Atlantic article makes that perfectly clear (The Atlantic, 7/7/15).

[C]ritics often argue that the registries do the opposite of what they’re supposed to do. “It sounds like a good thing,” said Erik Smith, an Ohio family law attorney who tries to educate men about the issue, “but it’s the only way that an unwed father can secure his right to notice.” Shannon Jones, a prominent lawyer in Charleston, South Carolina, has called for the abolition of the registries. She describes them as a “‘check box’ so the adoption can go ahead and get the pesky father out of the way.”

In fact, the registries were designed primarily to protect adoptive couples and the children they bring home.

That’s true, but it misses a large part of the picture – money. Adoption may not be a huge industry (about 125,000 domestic adoptions are completed in this country each year), but it’s not insignificant either. Many, many lawyers and adoption agencies make their incomes off of it and states’ efforts to remove Dad from the process look a lot like a sop to that industry. And of course adoptions out of foster care are a huge money-maker for states thanks to federal largess.

So the notion that PFRs exist to help Dads is overtly untrue. That’s made all the more clear by a fact I’ve reported on many times and that the Atlantic piece, to its credit, recognizes as well. If states were truly interested in preserving single fathers’ rights to notice of adoptions via PFRs, they’d at least let folks know they exist. But PFRs are among the least known of all state laws.

From a birth father’s perspective, however, there’s a significant problem: Hardly anyone knows that these registries exist. They aren’t advertised on billboards, park benches, subway cars, or in the men’s bathrooms at bars and restaurants. When asked about their advertising efforts, most state offices of vital records point to their websites or to pamphlets made available in their offices. Most departments say they don’t have funding for community outreach.

But the vast majority of states don’t do anything except wait for registrants who rarely show. According to the most recent census, 43.9 percent of all children in South Carolina are born outside of marriage each year. In 2014, around 30,000 children were born to unmarried women. Emanuel was one of 279 men who added his name to the state’s putative father registry that year.

Figures from 2011, the most recent year for which data is available, show similar trends in other states with putative father registries. In Ohio, where 56,278 babies were born to unmarried women, only 164 men registered. In Florida, only 544 men registered while 82,746 unmarried women gave birth. In Virginia, where 35,491 babies were born outside of marriage, 111 men registered. Can a state say that the registry is a success when the response rate is in the double digits for every 10,000 men?

It can indeed, if the purpose of the registration requirement is to remove fathers from the process. Years ago, I conducted my own survey of 100 men in Houston, half at the University of Houston and half exiting office buildings downtown. Not a single one had ever heard of the Texas Paternity Registry. And, like the other states mentioned by the article, Texas budgets no money to publicize its registry.

Equally bad, PFRs place the onus of finding out about a pregnancy and an adoption on fathers, or actually, men who believe they may have fathered a child. Mothers know when they’re pregnant, but often fathers do not. Legal casebooks are littered with cases in which mothers went to extreme lengths to make sure the father didn’t know about a pregnancy or a child. It’s simple enough to do; a few remarks to the effect that the relationship isn’t working out and she feels the need to move on are usually all it takes to put a stop to contact. After all, what man wants to be called a stalker?

And yet, despite his lack of access to vital information, the law requires the man to somehow ascertain that his ex is pregnant and that she’s going to place the child for adoption. That requirement turns all other similar law on its head. Everywhere else in law, the person with knowledge of a fact material to a “transaction” is the one required to disclose it. We long ago abandoned the concept of caveat emptor whereby a buyer was required to figure out if what he was buying was defective. We now require the seller to disclose known defects.

So why don’t we require mothers to disclose to fathers the fact of pregnancy and her intention to adopt out the child? I suggest the answer is twofold. First, we want to preserve the adoption industry and the easiest way to do that is to take the dad out of the process. Second, we want to preserve mothers’ control over fathers’ rights.

Throughout the legal system related to children and parents, we’re happy to make fathers’ parental rights, or at least the exercise thereof, subject to mothers’ power. And nowhere is that more obvious than in the adoption system. The constitutional construction that the Supreme Court has placed on fathers’ rights is that, although states can’t deny single fathers parental rights, they can make them subordinate to mothers’. The Atlantic article describes the legal situation faced by single fathers.

In 1983, another Supreme Court case, Lehr v. Robertson, determined that it’s not biology alone that entitles fathers to rights. In that case, a biological father tried unsuccessfully to block his daughter’s adoption by her stepfather. The Court ruled against the biological father because he had not actively established himself in her life and that his reliance on the biological connection alone was insufficient reason to disrupt the adoption. This “biology plus” doctrine established an ethic of responsibility: Fathers have rights, but only if they are earned.

And to “earn” those rights, a single father must jump through all the hoops a mother might set for him. The Supreme Court opinion in Lehr v. Robertson gives a taste of what a mother can do to deprive a father of his parental rights.

A dissenting opinion, written by Justice Byron White and joined by Thurgood Marshall and Harry Blackmun, pointed out that Lehr and his girlfriend had lived together before and during the pregnancy, and she’d “concealed her whereabouts” from him for two years after the baby’s birth. By the time Lehr had located her and the baby, she was married to another man. She’d refused to let him visit, turned away his child support, and threatened to have him arrested.

Does it get clearer than that? Lehr’s girlfriend did everything she could to keep him out of his child’s life and in the end, despite his unrelenting efforts, she succeeded. Such is the power that mothers have over fathers’ parental rights.

That of course points up another aspect of the adoption game that frankly discriminates against fathers. Single fathers, but not single mothers, must prove their bona fides as parents. Why? That of course is unclear. Certainly mothers are every bit as capable as fathers of being fit or unfit parents. So why not subject both men and women to a test for parental fitness before legally vouchsafing them rights? Or better yet, why not assume every parent is fit until they’re proven not to be. That’s what we do with married parents, so why not unmarried ones? Whatever the answer, there’s no basis in fact for treating fathers differently from mothers.

And finally, let’s not forget that the entire scheme of promoting the adoption of children at the expense of fathers harms not only the fathers, but other children who need adoption. From the article’s description, Christopher Emanuel looks to be a fine and motivated father with the desire to raise his daughter and a support network to help him do so. But it was pure accident that his sister located the state’s putative father registry and convinced him to register. Had he not done so, Skylar would be with adoptive parents to this day.

The problem with that is that there are hundreds of thousands of children in this country at any given moment who need to be adopted. Their parents have died or had their rights terminated. Around the world, there are millions of children in orphanages who urgently need parents. The couple that almost adopted Skylar could have adopted one of those children. Maybe they will. But they certainly wouldn’t have if they’d gotten Skylar.

By removing fit fathers from the adoption process, we force adoption on children who don’t need it. In doing so, we deny fine adoptive parents to children who do. That is perhaps the most shameful aspect of the adoption industry in the United States. Sadly, it’s an aspect the otherwise excellent Atlantic article failed to come to grips with.


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#adoption, #putativefatherregistry, #U.S.SupremeCourt

adoption, putative father registry, U.S. Supreme Court

The Christopher Emanuel case illustrates the many anti-father biases of the adoption system in the United States.

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