Unwed fathers' rights at issue
At least three Utah adoptions are being challenged earnestly by unwed, biological fathers who say they opposed the adoptions from the start, but nobody wanted to hear them.
Such challenges by so-called putative fathers were impossible before 1972, when the U.S. Supreme Court first granted them rights to their children. Since then, however, the percentage of all births conceived by unwed parents has tripled. Fathers have argued they deserve more rights, and some courts and lawmakers have begun to agree with them.
More than half of all states, including Utah, now have putative father registries, tucked away in various places on the state's Web sites, each with their own rules, requirements and limitations.
The registries protect the rights of the father, but the three Utah cases show registering isn't always easy.
Experts disagree on whether Utah law and its registry are particularly fair to putative fathers, or whether the state-by-state patchwork of adoption law in its entirety tilts toward the rights of birth mothers and adoptive parents.
Adam Pertman, executive director of the Boston-based Evan B. Donaldson Adoption Institute, and author of "Adoption Nation," said the registries harm fathers. Registries more often are used as an excuse to terminate a father's rights than ensure them, he said, because states do not advertise them.
"Putative father registries in themselves are difficult and problematic. They assume people know about them. They assume a human being is going to register every time they have sex. And these registries assume things go smoothly, that a woman who gets pregnant in Wyoming stays in Wyoming, and that doesn't always happen."
Wyoming to Utah
Cody O'Dea registered with Wyoming's Putative Father Registry in 2006, within that state's time limits, but that didn't stop his child from being placed for adoption in Utah.
Utah law recognizes other state's registries, but not always. O'Dea's unborn child's mother came to Utah, and because she told him that she had done so, the state mandates he comply with Utah's laws within 20 days of being notified. He didn't register in Utah in time and the child was placed for adoption.
Salt Lake City attorney Larry Jenkins represents the adoption agency that placed O'Dea's child.
He said O'Dea obviously tried to protect his parental rights, but he just didn't do enough.
"What he does in the other state can work," Jenkins said. "But the way our law is written -- and I didn't write it -- if the birth father knows Utah is involved in an adoption before the mom signs her consent, then he has to comply with Utah law. He has 20 days. It used to be 10 days, even if you live in Maine."
Ogden attorney Dan Drage represents O'Dea. In another case, Drage was successful last year in convincing the Utah Supreme Court that putative fathers are being treated unfairly. Though the decision was a small victory for putative fathers because it did nothing more than give them a few extra days to register, Drage said it reveals a growing awareness by the court that putative fathers are abused.
That other client, Nikolas Thurnwald, of Syracuse, is still challenging the adoption that placed his child with a family three years ago. Thurnwald registered his paternity three days after his child was born, well past the 24-hour post-birth limit for in-state residents.
However, Thurnwald's son was born on a Saturday and the courts weren't open Sunday or Monday due to the Labor Day holiday. State law says fathers can register at any time after conception until 24 hours after birth. Drage convinced the court that putative fathers must have at least one business day after the birth of the child to register.
Still, Thurnwald may not get his son. For the second time, he's been told by the courts that his efforts to register weren't good enough.
In December, after the Supreme Court sent the case back to district level in Farmington, 2nd District Court Judge Michael G. Allphin ruled Thurnwald's rushed paternity filing was incomplete. Allphin ruled the filing needs to be almost perfect to be valid, and Thurnwald's did not "strictly comply" with the law. The filing contained significant typing errors and lacked some elements required by law.
Drage is appealing that decision now but that likely won't be back in court until November, Drage said, if the Court of Appeals takes the case at all.
Thurnwald's child -- and legal struggle -- will be 4 years old by then.
Drage said Thurnwald's case demonstrates how putative fathers are the victims of "serious misdeeds" and how the Utah Supreme Court is perhaps beginning to agree.
"Utah has such favorable laws to eliminate the father ... You've got a mom and a dad, but dad has imperfect rights, so to speak, unless he acts. In cases where he does act, mom can get around that," he said. "I think their eyes are a little more open to the scheme of things that have been happening in the last five to 10 years."
Jenkins disagrees that Utah's registry is a difficult hurdle for fathers to jump. It's easy to fill out, he said, so long as one knows where to look.
"If you were to go on the courts' Web site, it actually has the affidavit on there the way it needs to be," he said. "You actually just need to fill in the blanks."
Pertman said that attitude is representative of many adoption practitioners and ignores the fact that almost no one knows about the registries. He said it doesn't matter how easy they are to fill out if well-meaning fathers too often fail to find them in time.
All the media attention focused on Utah's adoption laws has led Idaho state Sen. Michael Jorgenson to investigate the issue himself. He said one of his constituents is a putative father fighting in Utah to get his child back from an adoption he did not authorize.
"I'm gathering information. ... I don't want to see something like this happen again because the families are being tortured," he said. "We want to try and stop that sort of thing from happening again. I can tell you that had my constituent's adoption been handled by (Idaho), that adoption never would have happened. So yes, there's an issue of (Utah) private adoption placement being, let's say, looser than our state requirements are."
Kathy Searle, program director for the Adoption Exchange, has nine adopted children. The nonprofit group contracts with the Utah Division of Child and Family Services to recruit potential adoptive parents of foster children.
She agrees fathers need more say in the adoption process. She said there's no way to know how many fathers are being excluded from the adoption process by the current laws.
"Think of the hundreds of adoptions where, for whatever reason, the father decided that the fight was just too much and decided not to do it."