Utah Lawyer: State Adoption Law a “Travesty and a Disgrace” in Colby Nielsen Case

December 2, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

The Colby Nielsen case is proceeding and this article gives a better idea of exactly what happened and why Nielsen faces the legal obstacles he does (Herald Journal News, 11/27/15).

Nielsen is the latest Utah dad to have his child taken from him courtesy of the state’s adoption laws that treat unmarried fathers — but not unmarried mothers — as uninterested in and uncaring about their children. That the precise opposite is true in many cases deters Beehive State lawmakers not a whit.

Kaylee Mae Nielsen was born just after 7 p.m. at Logan Regional Hospital, and according to documentation provided by Hutchins, the baby girl was given her father’s name on the birth certificate and both parents signed a voluntary disclosure of paternity, a record filed with the State Office of Vital Records and Statistics.

An amendment on her birth certificate, dated Nov. 9, notes that paternity has been established.

Nielsen and his girlfriend discussed placing their child for adoption before she was born, but Nielsen opposed the idea and his girlfriend told him she agreed. The baby was born and, almost immediately, Nielsen was her sole caregiver.

“Colby refused to sign, he was against the adoption. She left and signed the papers, leaving the baby with Colby. Since that night, Colby has had total care of his baby … Colby planned on keeping custody of his Kaylee and started getting all the legal actions into place,” the Facebook post reads.

That went on for about two weeks when he learned for the first time that Kaylee was being adopted without his consent and against his wishes. State law enforcement officials had the child literally taken from Nielsen’s arms and turned over to the adoptive couple.

That raised such a stink in the press and on social media that, to their credit, the adoptive couple stopped the adoption process and returned the baby. What’s distinctly not to their credit is that they returned her, not to Nielsen who’d been her caregiver, but to the mother who (a) hadn’t cared for her and (b) clearly wanted nothing to do with her.

Nielsen hasn’t seen his daughter since.

So his attorney, Wes Hutchins, has filed suit in state court requesting a temporary restraining order requiring the mother to turn the child over to Nielsen. So far there’s been no response from the mother’s lawyer or the court.

According to Hutchins, the mother relinquished her rights to the baby, and that cannot legally be revoked. That, in addition to the declaration of paternity, stand strongly in Nielsen’s favor.

True enough, but, under Utah law, does it matter? Nielsen’s previous lawyer sums up the legal matter nicely.

“This law, meant to protect mothers and babies with an absentee father, is an absolute travesty and disgrace in a situation like this,” said local attorney Erin Byington, who presented the Nielsens before Hutchins took the case. “If a father does not file a paternity action, specifically stating certain things by affidavit, prior to the mother signing her relinquishment for adoption (not court action, just a signature,) the father loses all ability to fight the adoption and seek custody. It doesn’t even matter if he’s on the birth certificate, or even if he physically has the baby in his care. This cannot possibly be the intended result of this legislation.”

Yes, it’s well to remember that, in Utah, the parental rights of an unmarried father depend on the outcome of a race to the courthouse. If Mom signs her relinquishment of parental rights before Dad manages to get his paternity case filed, then his child is no longer his. Like so many children before her, Nielsen’s daughter had adoption forced on her. And, as I’ve said so many times before, in so doing, the State of Utah effectively denies good adoptive parents to another child somewhere who really does need them. Unlike Kaylee Nielsen, that child has no parent who’s ready, willing and able to care for it.

No previous case has underscored the abusive absurdity of Utah adoption law quite like the Nielsen case does. In those cases, the fathers didn’t know that the child had even been born, or that the mother had fled from some faraway state to Utah to have the child adopted. Given that, the outrage that is Utah adoption law could be seen, but not as starkly as in Nielsen’s case. Clearly, Utah encourages fraud on the part of unmarried mothers, but the image of sheriff’s deputies entering Nielsen’s home and removing his child from his arms is another order of magnitude more telling. That the child has his name, that he’s listed as the father on her birth certificate and that he was her sole caregiver until the police arrived only make the argument against this disgraceful law all the stronger.

Of course, as attorney Byington so astutely points out, surely the Utah legislature didn’t intend for this to be the result of the law they passed. But does it matter? The law is the law and because Nielsen lost the race to the courthouse, he can’t assert any rights to his child in any adoption proceeding. Period. If legislators don’t like the way this case is unfolding, they should change the law that made it possible.

It would be the most extreme outrage for anyone to adopt Kaylee now, but legally, they could do so. But that raises the obvious question, “Who would whack this hornet’s nest now?” Every adoption agency in the state and every potential adoptive couple know about Kaylee, her father and his claim to be her parent. Legal such an adoption may be, but will anyone pursue such and adoption? Won’t future adoptive parents do what Kaylee’s adoptive parents have already done — look elsewhere for a child who has no fit father striving to play that role?

One would think so.

If that turns out to be true, this begins to look more like a child custody case between Nielsen and his girlfriend than like an adoption. Is Hutchins correct when he says that her relinquishment of her parental rights can’t be revoked? My guess is that she’ll say it was done contingent on the adoption being finalized and so, since it wasn’t, can be revoked. I don’t know enough about Utah law to know if that’s a winner or not.

But if this does become a custody fight, what will the court make of Mom’s obvious lack of interest in raising the child compared with Nielsen’s unflagging desire to do exactly that? His parental rights remain intact. The only thing he’s lost is his ability to contest an adoption. But that looks like a permanent fact. If Mom gets custody, what’s to prevent her from placing the child for adoption on the sly? Not a thing that I can see. She can do it any time.

It’s a case fraught with strange possibilities, all of which would vanish if a judge were to give Nielsen primary custody and Mom only supervised visitation.

We’ll see what happens.


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