Yesterday, a group of fathers from around the country filed a federal lawsuit against the state of Utah in federal court for “legalized fraud and kidnapping.” For years, Utah law has allowed biological mothers to leave biological fathers out of the adoption process if the father does not comply with what the suit alleges is a “confusing labyrinth of virtually incomprehensible legal mandates and nearly impossible deadlines in direct contravention of due process, equal protection, and other constitutional rights.” While the suit is being brought by a group of 12 fathers who lost their children with little or no recourse, it is estimated that these practices have also violated the constitutional rights of 300 other similarly situated fathers.
Essentially the process works likes this: two unwed people conceive a child, the father takes an interest in his parental responsibility and desires to raise the child while the mother favors adoption. Over the father’s wishes, the mother secretly travels to Utah where she gives birth and puts the child up for adoption without the knowledge or consent of the biological father. This is usually facilitated by misleading or deceiving the father in some way.
The biological father has no recourse in the state of Utah. This is because Utah does not require the consent of an unmarried biological father (UBF) for adoption proceedings unless the father first jumps through a series of procedural hoops with multiple legal filings to establish paternity and support of the child within a relatively short amount of time. Particularly for an out of state father, this is nearly impossible. Moreover, if an adoption is effected under fraudulent circumstances, Utah statute will not reverse the adoption—a weakness in the law that the suit alleges has been specifically exploited by biological mothers and adoption agencies as a sort of “fraud immunity statute.”
The world needs fathers more than ever. In a world where the rate of single motherhood and dead-beat dads is on the rise, one might expect public policy to encourage and facilitate fathers to take responsibility for and share in raising their children. More importantly, natural parents have a natural and fundamental right to raise their children. The Supreme Court has acknowledged that “the child is not the mere creature of the State.” Children, rather, are the responsibility of the parents who conceived them. This “parental liberty doctrine” has been upheld for years.
The state’s obligation is to protect the fundamental and natural rights of all people from those who would violate them. In the case of children, the state may intervene in cases of abuse and neglect in order to provide parenting and guardianship where there is none. That power, however, should be wielded carefully and with cautious discretion. In the case of adoption law, this misapplied power has been exploited to violate the rights of biological fathers.
Family law issues are reserved powers of the states or people. Policies related to parental rights, paternity, and adoption are unique to each state. Current public policy generally assumes that the male spouse of a married mother is the father of the newborn child and that the marriage relationship will therefore ensure that the father takes on his share of responsibility for the new child. When a mother is unmarried, public policy makes no such assumption. Instead, it often assumes or alleges that the claimed biological father is the reputed or “putative” father. However, every state is different in how it facilitates the putative father in asserting his paternity. In Utah, this process is difficult and confusing and gives a biological mother the advantage to initiate adoption proceedings without the consent of an unmarried biological father.
Under current law, Utah essentially has a system that places the burden of proof on a person to proactively claim their natural and fundamental rights as a parent. This pre-supposes that they have no natural or fundamental rights outside of acknowledgment by and permission of the state. This is a dangerous precedent because it creates a paradigm where fundamental or natural rights do not exist without the state’s recognition and blessing. A foundational principle of liberty is that true natural rights exist before the creation of the state, and therefore independent of it. Our laws should not extinguish these rights because of one’s mere failure to proactively comply with a “labyrinth of incomprehensible legal mandates and impossible deadlines.”
The suit outlines a variety of allegations regarding improper conduct by adoption agencies in Utah who conspire with the mothers to deceive the biological fathers and take advantage of Utah laws in a way that violate the parental rights of these fathers. In many cases, the birth mother is not from Utah but is advised to travel to Utah in order to proceed with adoption under Utah law. Frequently, the mothers can qualify for Medicaid in Utah and receive assistance and support from the adoption agencies and adoptive parents, thereby creating a financial incentive for the mothers to travel to Utah for adoption. In an interview with various adoption services personnel, the suit reveals a number of disturbing instructions and statements given to birth mothers by adoption agency employees. Here is a sampling of those statements:
- “Utah is one of the better states to work with birth moms regarding the unmarried biological fathers; there are steps they [the father] have to take care of in Utah to be considered a parent and 99% of the guys don’t even do it. There is a notification process if she doesn’t want to name him on any paperwork; lawyers take care of the notification so she doesn’t have to do anything. Unfortunately, for the guys, that really maybe is not completely fair, bit it is Utah law.”
- “There are several steps he [the father] has to take and it is kind of expensive [estimates of $30,000 in legal fees]; they start realizing how much it is going to cost; only ones that follow through with it do so because of their parents’ money, and that’s actually quite rare; Utah law is what is applicable.”
- “It’s better for her to come to Utah, and he [the father] would have to do the research and have to make the effort to find out he has to comply with Utah law.”
- “So it sounds really unfair for these dads but he did not take the steps that he needed to take beforehand and we don’t give out that information, it’s private in the laws.”
- “In Utah the birth father laws are very unforgiving.”
- “It’s important not to accept any support from him [the birth father].” This is because in order to terminate the biological father’s rights “you will be required to sign a birth father affidavit that includes a statement that he’s not supporting you in any way during the pregnancy.”
The suit also alleges that the Utah Attorney General has known about this problem for years yet has made no substantive efforts to remedy it. Further, it points out public statements and promises on the matter from the AG’s office that have gone unfulfilled. The plaintiffs in the suit are suing Utah for $500 million in damages plus attorney fees, along with a request for declaratory judgment on the unconstitutionality of the Utah Adoption Act.