NE Supreme Court Ousts Bio Dad of Rights in Favor of Nurturing Dad

June 6th, 2012 by Robert Franklin, Esq.
No sooner do we hear about the ruling of the Supreme Court of Iowa establishing a right on the part of men to sue for paternity fraud than we turn next door to see the consequences of paternity fraud.   Read about it here (Omaha World Herald, 6/2/12).

It seems that back in 1999, Jeffery Bulduc and Amy Long were having a sexual relationship.  Unknown to him, she had a four-month fling with Todd Withrow as well.  Both Bulduc and Long lived in Omaha while Withrow lived in St. Louis.  None of the three were married.  When Long became pregnant, she told Bulduc it was his.  She never informed Withrow of her pregnancy.

As a brief aside, I’d like to point out how the World Herald describes events in order to deflect as much blame as possible from Long.  Here’s how it deals with Long’s behavior:

When the girl was born in December 1999, both she and Bulduc thought he was the father.

Bulduc said Friday he never had any inkling that might not be the case.

Well, she may well have thought Bulduc was the dad, but she knew to a certainty that he might not be.  After all, when a woman has sex with more than one man during a particular time and becomes pregnant, she knows that either of them may be the dad.  And of course she’s the only one who knows, so it should fall to her to come clean to both guys, but Long didn’t do that.  She apparently wanted Bulduc to be the father whether he was or not, so she lied to both men – overtly to Bulduc and by omission to Withrow.

Bulduc thought being a dad was great.

“From 3 pounds, 9 ounces at St. Joseph Hospital, (she) was my daughter,” he said. “I went to see her every day.”

…Being a father changed his life, Bulduc said. He learned to enjoy the “Nutcracker” ballet and afternoons of watching “Drake & Josh” on television.

He even went to court to get a paternity decree in 2001.  Obviously that didn’t include genetic testing, so my guess is that Long testified under oath that Bulduc was the dad.  After all, a man can’t just walk into court and claim to be the father of a child whose mother he’s not married to.  There’s got to be some more evidence beyond his word for it, and if that evidence isn’t genetic, it’s got to be her testimony.  So from where I sit it looks like Amy Long not only lied to Bulduc, Withrow and her daughter, she lied under oath in court as well.

But in 2004, Long proved to be a bad enough mother for the State of Nebraska to remove the child from her care.  Bulduc, stand-up guy that he is, got custody.

Now the article gets fuzzy about what happened next, but it looks like Bulduc probably tried to terminate Long’s parental rights.  The article doesn’t say, but a comment to it from someone who seems to be familiar with all the parties suggests I’m right.

The custody battle between Jeff and Amy was vicious. That poor child has witnessed pure hatred from both of them. Amy lied to both men 13 years ago, but finally told Todd the truth in a desperate self-serving move to get custody back from Jeff. She did not count on Todd having a huge heart (that broke) and wanting to be part of his daughter’s life also. Todd has shown Fiana nothing but love, stability, and hope in the short time he has been aware of her existence. I pray that Jeff has compassion and allows Todd to continue to be part of their daughter’s life. I also thank Jeff’s Mother for seemingly being the one stable pillar in the first ten years of Fiana’s life.

So, to prevent Bulduc from getting sole custody, Long finally told the truth – that Withrow might be the dad.  (It’s strange that that was what it took to finally get her to tell what she knew all along.)   Genetic testing was done and sure enough, Todd Withrow is the biological father and Bulduc the nurturing father.

Needless to say, Withrow intervened in the custody fight and the trial court ruled that, due to his biological connection to the girl, he should have custody and Bulduc was out.  On appeal, that order was suspended and the child remained with Bulduc with Withrow having visitation.  Now the Nebraska Supreme Court has ruled that Bulduc, the nurturing but non-biological dad is one with parental rights while Withrow, the biological father has none.

The court hung its hat on some very uncertain evidence about what Withrow knew and when he knew it.  Essentially, the court ruled that he in fact knew about Long’s pregnancy even though she didn’t tell him, and, since he knew about it and failed to assert his parental rights then, he can’t do so years later.  That’s a fair enough ruling if the underlying facts are true.  Here’s how that was described by the newspaper and the court:

Withrow said he did not know of Long’s pregnancy, even though she had visited St. Louis in 1999.

She did not see Withrow at the time but met some of his co-workers, who later told him she might be pregnant. He did not follow up on their report…

In the Friday ruling, the court said Withrow lost his chance for paternity because he did nothing to find out whether Long was pregnant, even after being told she might be pregnant.

“He took no action for 10 years despite knowing that he had sexual relations with Amy in 1999,” the court said. “While Todd slept on his rights, Jeffrey fulfilled the obligations of a father in justifiable reliance on the 2001 paternity decree.”

Hmm.  Long refused to tell him about her pregnancy, but co-workers told him she “might be pregnant.”  That, according to the court constitutes notice to him that he’s got a child and needs to do something about it.  It’s hard to buy the notion that Withrow “slept on his rights,” since, when he learned the child was his 10 years later, he moved immediately to intervene in the custody case.  That’s not the action of a man sleeping on his rights; it’s the action of a man who wants to be a father to his child even though she’s already 10 years old.  Also, notice on whom the court places the onus of action – the father.  It’s not up to her to tell him what she knows; it’s up to him to find out.

Still, I can’t get too incensed at this decision.  Withrow did have some information he could have used to assert his rights back in 1999, but he didn’t.  In the meantime, the child has had a good, loving man to care for her, provide for her and protect her.  There’s no way Bulduc should be removed from her life.  I’m with the person whose comment I posted above; I hope Bulduc allows Withrow some visitation so that he can get to know his daughter and she him.

The consequences of paternity fraud are hard on everyone.  They’re hardest on the innocent parties – the two men and the child.  There is, very simply, no excuse for paternity fraud.  Each state should pass a law requiring women to notify each potential father of a pregnancy.  No man should either gain parental obligations or lose parental rights until he has notice from the mother that he may be the father of her child.  Once that notice is given, it’s his responsibility to act as he sees fit.  If he’s the dad and wants nothing to do with the child, he can’t be heard to complain later that his rights have diminished or been terminated.  And if he does want to play the role of father, he can.

The law – or more accurately, the absence of it – on paternity fraud needs to change to require women to give notice to all potential fathers so that they can sort out actual, biological paternity before or soon after the child is born.  Doing so would be fair, honest and just to all concerned.  In other words, it would be the exact opposite of what paternity fraud law is now.

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