North Texas Father Fights For His Parental Rights (updated version)

Texas Appeals Court Favors Biological Father, Rules Against Couple With Primary Custody Reporting

Jack Fink (CBS 11 / TXA 21)

For Shawn McDonald, a day in the park with his four-year-old son Hunter is sacred. McDonald said, "We've had a lot of fun down here."

While Hunter is McDonald's own flesh and blood, his son is just a visitor.

Ever since he was born at a Burleson hospital in July 2005, the boy has been at the center of a bitter custody battle -- one that McDonald has lost so far. McDonald said, "It's something very disgusting that no father should go through."

McDonald says his former girlfriend, Samantha Myers, didn't tell him she was pregnant; that he was likely the father; and that she had arranged for the baby to be adopted -- without his permission -- to relatives of her current boyfriend. McDonald said, "They did steal him in my eyes."

McDonald says what's more difficult for him is that the couple seeking to adopt his son, Sabra and Travis Hess, live more than 1300 miles away from North Texas in Ashton, Idaho, near Idaho Falls.

From their backyard, the Hesses can see the Grand Tetons of Yellowstone National Park. Mrs. Hess said of the boy, "He's been a blessing for us and we've been a blessing for him."

The Hesses named him Hunter, but legally, he's still referred to as BBM for Baby Boy Myers.

During a custody hearing in January, 2007, the Hesses argued taking Hunter from them would cause him emotional harm.

The Dallas County jury agreed, awarding the Hesses managing conservatorship, or primary custody of Hunter. Mr. Hess said, "I love that kid more than life itself."

The jury allowed McDonald to visit Hunter one weekend each month in Idaho.

This summer, he had Hunter for a month at his home in Weatherford. McDonald said, "It's not enough time to be a father."

But now, two and a half years later, a three-justice panel at the Texas Fifth District Court of Appeals in Dallas reversed the jury's verdict granting the Hesses primary custody and ordered a new trial based on Texas law. The appeals court justices said, "A mere potential threat, as opposed to evidence of actual harm to the child's emotional development, is insufficient to deny a natural father the right to raise his own son."

"I think this ruling was a good ruling," McDonald said. "As long as it stays the way it is, I'm very happy that I'm eventually going to get my son back, hopefully."

Mrs. Hess says, "I was shocked, we had a few different attorneys familiar with the case all tell us it shouldn't be a big worry and that they [the appeals court] would go along with what the jury decided."

Attorney Carmen Eiker, a family law attorney not involved in this case, says she's not surprised by the court's ruling. "What the court of appeals was actually doing was confirming long-standing principles in family law," she said, "which is that there's a presumption of parents raising their children... that children benefit by being raised by their parents."

The appeals court's ruling stunned James Jones.

He was the jury foreman during the custody hearing two years ago. Jones says, "I think it's unfortunate because we the jury made every attempt to do the best thing for the child. That was foremost in our mind."

And even after reading the justices ruling, Jones says he'd still vote to keep Hunter with the Hesses. "We just felt the age of the child and the probability of losing the emotional stability he had weighed heavily on us," Jones said.

Mrs. Hess said, "We've had him since he was two hours old."

But the appellate court justices found that's not enough under Texas Law for the Hesses to have gained custody.

McDonald has maintained he only found out about the pregnancy and arranged adoption days before birth. McDonald said, "Two days even before he was born, I get a call saying she's putting him up for adoption. If he's mine, I want to be the father."

In their ruling, the appellate court justices said before birth, the hospital's social worker contacted the adoption agency, saying she was aware "that McDonald was left out of the adoption process and that he was not agreeing to the adoption."

"They had no right to take him. They had the mother's okay, but they didn't have my okay," McDonald said. "From the very beginning, I don't understand how they could just take a child out of the hospital."

The Hesses signed a form acknowledging Hunter could be removed at any time.

The appeals court justices found the adoption agency allowed the Hesses to take custody of Hunter two days after he was born and take him to Idaho while knowing McDonald refused to surrender his parental rights and that there was a risk Hunter may have to be returned to him.

Mrs. Hess said, "We weren't worried one little bit. We were told that it had been worked out and that's what we felt - that's what we thought - there was no concern when we left."

McDonald and Hunter's birth-mother also have an older daughter together. She has primary custody, but the appellate court found the birth-mother allowed McDonald to spend more time with their daughter than the court order required, and that she didn't believe McDonald posed any danger to their daughter or Hunter.

Even Sabra Hess testified she had no concerns for Hunter's safety when he was with his father.

That is, until now. "In January of this year, Hunter started telling us things that Shawn has been doing - and that's sexual abuse," she said.

But McDonald says, "What they're doing to him is a form of abuse." When asked what he meant, he said, "Coaching a child to believe in something that's not true."

The Hesses say they called police and the Hood County District Attorney's office investigated.

The DA's office says McDonald took a lie detector test, and passed.

Even so, prosecutors sent the allegations against McDonald to a grand jury, which didn't charge him. "Everything they've thrown at me in the past four years has been to prove me unfit," McDonald said, "and they can't do it."

Mr. Hess said, "Despite what Shawn may think about us, we've tried to speak good about him to Hunter because it's something we have to deal with."

The allegations will likely come up in a new trial.

For now, four-year-old Hunter remains caught in the middle of this legal and emotional tug of war.

Each side says Hunter wants to be with them.

Mr. Hess said, "They need to do what's best for Hunter, and if they really looked at what's best for Hunter, they know this is where he needs to be."

McDonald sees it differently. "I just can't see how they do it... live everyday knowing they stole a child from a loving father."

The Hesses say they intend to appeal the case to the Texas Supreme Court by the deadline of October 5th.

The adoption agency and the birth mother declined to be interviewed.

McDonald filed a civil lawsuit against the adoption agency and they settled out of court.

McDonald says he's using the money to pay to win custody of his son and for visitation.