March 17, 2014 by Robert Franklin, Esq.
A New Jersey Superior Court judge ruled last week that an unmarried father, Steven Plotnik, has no right to be in the delivery room for the birth of his child and no right to be notified of when the mother, Rebecca DeLuccia, goes into labor. I suppose I have to reluctantly agree. But, there’s a lot to say about this case that, predictably, most media commentary doesn’t consider. Here’s one article of many on the case (Huffington Post, 3/14/14).
I think who is present for the birth of a baby should be rightly the consideration of the mother and the medical personnel on the scene. The spectacle of a father, who may be crazy or violent or who is estranged from the mother being able to get a court order allowing him to be present at the birth of his child regardless of all else seems a bit much.
The same holds true for informing the father about the mother’s going into labor. I can’t get behind a legal requirement that a woman who may be undergoing a medically risky delivery would be required to pick up the phone and tell the dad she’s about to give birth to his child. Face it, too many things are going on in her life and the baby’s to require notifying the dad.
So, while I don’t like it, I can’t disagree with the judge’s decision. But I also don’t think that should be an end to the matter, as of course it’s not. The decision of a Superior Court judge in New Jersey has no precedential value. It’s a decision about that case and that case alone. So in the Garden State any judge can make a decision contrary to the one made by Judge Sohail Mohammed in Rebecca DeLuccia and Steven Plotnik’s case. And of course any judge in any other state is free to decide differently as well.
Judge Mohammed hung his hat on Roe v. Wade and Pennsylvania v. Casey, both of which are abortion cases. He found that DeLuccia’s right of privacy would be infringed by allowing Plotnik in the delivery room over her objections. To say the least, that’s an extremely loose reading of the right to privacy. After all, delivering a baby in a hospital is a fairly public thing to do given the fact that the mother is attended by many different people who are complete strangers to her. At some point, the concept of maintaining one’s “privacy” in such a situation becomes absurd.
Likewise, the judge used language from Casey to rule against Plotnik’s request to be notified of DeLuccia’s going into labor, calling such a requirement an “undue burden” placed on her. I would encourage Mohammed to actually read Casey. If he did, he’d learn that it’s an abortion case and its holding can fairly be described thus: states can restrict abortion rights as long as they don’t place an “undue burden” on them.
That holding has spawned much litigation since it was handed down and has been attacked as far too vague to give anyone guidance about what states may and may not constitutionally do regarding abortion rights. So every legislative session we have states passing laws on abortion testing just how far they can go in limiting abortion rights.
But to suggest that Casey has any bearing on DeLuccia’s and Plotnik’s case isn’t sensible. Simply repeating the words “undue burden” entirely fails to invoke Casey or its holding. After all, the New Jersey case is about whether a father may be present in the delivery room or have notice of his child’s birth. Casey is about what states may and may not do regarding limiting abortion rights.
Then there’s the matter of what rights married fathers have. Plotnik and DeLuccia weren’t married, but should married parents be treated the same way? Should a married woman be able to tell her husband he has no right to witness the birth of his child? Is that again her right to privacy trumping his parental rights? I feel certain we’ll find out soon enough, but if a mother’s privacy is what governs, there’s no difference between a married and an unmarried father, or indeed, anyone else.
While admittedly not legally relevant, no commentator has seen fit to acknowledge that this ruling doesn’t exist in a vacuum. It comes against a backdrop of a society and its governing laws that are attempting to come to grips with real issues of children’s welfare and parents’ rights. We are almost 40 years into our experiment with family breakdown and the results are not good. Astonishing numbers of children who essentially never see their fathers, single mothers raising kids in poverty, boys failing in school and many other social ills rooted in family breakdown are all problems we desperately need to solve.
But however much society may be trying to change, particularly in regard to fathers’ greater involvement in the lives of their children, the law remains stuck in the past. What that all too often means is that fathers’ rights, like Plotnik’s, are in mothers’ hands. And when we make fathers’ rights subject to mothers’ decisions, we inevitably marginalize fathers in the lives of their children. That means more fatherless children and the multitude of problems that go along with them.
It’s hard not to notice that DeLuccia’s behavior prior to giving birth looks a lot like that of mothers we’ve seen before who were bent on removing fathers from the lives of their kids. She and Plotnik had an intimate relationship and she became pregnant. He announced his desire to be a father every step of the way. He asked her to marry him and she agreed. But, as her due date approached, she became ever more distant. Eventually, they broke up. Apparently, she began denying him information about when and where she was to give birth. She also denied him the right to sign the birth certificate or give the baby his surname. I guess those are matters of her “privacy” too. Appropriately, Plotnik ran to a lawyer.
Had he not, I wouldn’t be surprised if she’d done what so many mothers do who follow the path on which DeLuccia started . We’ve seen them decamp to Utah to give their children up for adoption. We’ve seen them claim domestic violence to keep dad out of their children’s lives. We’ve seen them simply disappear into one of the many networks that are ready and waiting to assist mothers seeking to ensure a child doesn’t ever meet its father. It’s easy to say mothers should be able to choose whom they want in the delivery room for the birth of a child. But that, plus refusing to tell Plotnik about her delivery date looks like the beginnings of maternal gatekeeping and parental alienation.
Until we give real parental rights – i.e. those they can enforce themselves – to fathers, the family law system will remain a continuous feedback loop of no-fault divorce, single-mother childbearing, maternal custody, non-enforcement of visitation, paternity fraud, adoption without fathers’ consent, and so on. That’s a recipe for societal dysfunction if ever there was one with a common denominator – mothers limiting or denying children the right to their fathers.
But give fathers those real, exercisable parental rights and we stabilize children’s lives, resulting in better outcomes for them. We also make fathers happier, less stressed, more fulfilled, less likely to take their own lives, more likely to be employed, off drugs and out of prison. Into the bargain, we’ll free mothers of the daily drag on their freedom and earning potential that children undeniably are. Any single parent can tell you that, however much they love their kids, however much they’d sacrifice for them, having no time when you’re not “on call” is draining. And it hampers the single parent’s ability to work, earn and save.
So far, we prefer that range of social ills that harms children, fathers, mothers and society generally to simply giving fathers real parental rights. That’s been our choice, and it’s a terrible one.
Within its limited context, Judge Mohammed’s decision makes sense. But we shouldn’t, as so many commentators have been happy to do – ignore the larger picture. From the conception of the child all the way through birth, maturation and its emancipation at age 18 or so, we subjugate fathers’ rights to mothers’ whims. That’s explicitly what Judge Mohammed did and by itself, it’s not wrong. But it’s impossible to open a newspaper, listen to the radio, watch TV or log on to the Internet without being bombarded by messages excoriating “deadbeat dads” for all their assumed shortcomings. Meanwhile, at every stage in a child’s life we tell those dads “Stay away, we don’t want what you have to offer; at most you’re just a walking wallet.”
Do I want courts to start ordering mothers in labor to allow fathers into their delivery rooms whether they want them there or not? No. And if the rest of the law on fathers and children were set aright, Judge Mohammed’s ruling would be no big deal. But it’s part of a much larger system – not only of law, but of popular culture, personal relationships and economics – that says to fathers just what Judge Mohammed did – “You have no right. She’s the important one, not you.”
That might have been the right message to Steven Plotkin regarding his presence in the delivery room, but it’s the worst possible message for fathers generally. It’s the one we deliver countless times a day, every day.
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