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Home / Articles / News / Cover Story /  Some Call It Kidnapping Page 2
Cover Story

Some Call It Kidnapping Page 2

How Utah adoption laws take babies from the nation's unmarried fathers.

By Jesse Fruhwirth
Posted // July 28,2010 -

Fraud Protection
From conception to 24 hours after birth seems like a long time to file paternity papers, but a father may not act to protect his rights if he’s told the baby is dead.

Wyoming father Cody O’Dea, who lost his case before the Utah Supreme Court (pdf) in 2009, was told by the mother of his daughter that she had miscarried. O’Dea lost contact with her, and it wasn’t until months later that he heard from a friend that the mother may have lied. He says he quickly protected his rights in Utah and Wyoming, but the Supreme Court ruled that he didn’t act fast enough to prevent the adoption in Utah.

“He’s an amazing father,” says O’Dea’s wife, Tanya O’Dea, whom he married six months after his child was placed for adoption. They are now raising two children together. “There’s this little girl out there who has a sister [and step-brother] who she doesn’t even know. … Her grandmother passed away before she ever got to see a picture of her.” Cody O’Dea runs a Website, BabySelling.com, which provides documents and details of his case.

Cody O'Dea, wife Tanya and their two childrenDan Drage, an Ogden attorney who represents adoptive parents and also putative fathers who want to stop adoptions—including O’Dea and Shaud—says Utah’s laws work in “99 percent” of adoption cases. But in those remaining cases, there are many capable and interested unmarried fathers who are excluded, he says.

Even Utah fathers struggle to comply with the state’s laws. Nikolas Thurnwald, of Clinton, was led to believe throughout the pregnancy that he and his baby’s mother would raise their child together. They had a baby shower, and he considered joining the military to support his family. Less than a month before the birth on Sept. 4, 2004, he learned that the mother was considering adoption. Soon after, he hired an attorney and filed his paperwork with the court on Tuesday, the first day the courts were open after the Saturday birth, Monday being Labor Day.

Utah law states without exception, however, that fathers have only 24 hours after the birth of their child to file for paternity, so the judge ruled that he was too late. The Utah Supreme Court sided with Thurnwald (pdf) on that dispute, saying the state’s interest in quick adoptions is not sufficient to withhold the one-day post-birth deadline for fathers whose children are born on weekends and holidays. The court changed the law, saying fathers must be provided at least one day post-birth during which the court is actually open.

Despite that victory, which modestly expanded putative-fathers’ rights, Thurnwald still lost his child. After proving that his petition was submitted in time, the Utah Court of Appeals later ruled his plan for care was deficient (pdf) because it was submitted without his signature and thus was not a sworn affidavit, as required by law. The court also said Thurnwald’s plan was not detailed enough. That’s what provoked Judge Davis, in a concurring opinion, to write that fathers like Thurnwald are in “an impossible bind” because while the law says fathers must adhere to the rules with “strict compliance,” the law fails to explain what level of detail is adequate.

“At a minimum, [the plan for care must explain] how the putative father will financially care for the child and provide some glimpse into how he will meet daily care-giving responsibilities,” the majority wrote. That’s helpful guidance to attorneys representing fathers now, but it didn’t help Thurnwald, who was not given a second chance to “say the magic words,” as Drage, his attorney, puts it. After a four-year legal battle, Thurnwald was finished. “I’ve done everything … that anybody could do as far as fighting this out to be his father and raising my child,” Thurnwald said in December 2008, shortly after his final court loss. “Whatever happened was completely out of my control.”

In a 2010 case before the Utah Court of Appeals, the court rejected a lower court’s ruling that a putative father failed to state an adequate plan for care of the child because he had not written what he would do if he were deported. The Court of Appeals nevertheless rejected the father’s plan as inadequate because, regardless of whether he actually is willing or not, that father did not say that he is willing to pay child support in his sworn affidavit.

“[Lawmakers and the courts] are putting policy, procedure, form and state’s interest before the inherent and constitutional right to be a father,” Drage says.

Database Delay?
Unmarried fathers are also not protected from other people’s errors even if the third party is the state of Utah itself—although that issue is currently on appeal.

After receiving a note Dec. 16, 2009, Shaud hired Drage on Jan. 7. By Jan. 12, Drage had filed the necessary forms with the court. All a mother has to do is notify the father that she will be in Utah, and the 20-day countdown for him to comply with Utah’s laws begins. In Shaud’s case, the baby was born after the 20 days, and thus the race continued. Drage first faxed, then mailed the other necessary forms to the Utah Office of Vital Records and Statistics on Jan. 13—two days before the birth. Utah law, however, says a father’s paternity declaration “is considered filed when it is entered into a database,” which is accessible only to state employees. Shaud’s declaration wasn’t entered into the database by office staff until Jan. 20. Too late—the mother had consented to adoption on Jan. 19. shaud_ramsey.jpg

“It’s a race,” Drage says, “and they make the state of Utah the gatekeeper to the finish line.”

Jenkins, who represents A Act of Love Adoption Agency, which placed Shaud’s child, declined to comment on Shaud’s case, citing confidentiality issues in adoption cases and the ongoing litigation.

Shaud is in the process of appealing. Drage argues that Shaud’s constitutional right to his child should protect him from state errors.

Barry Nangle, director of the Center for Health Data—of which the Office of Vital Records and Statistics is a division—declined to discuss Shaud’s case because it is still active; some of his employees were subpoenaed to testify in the case. He acknowledged, however, that the office has a policy that all mail should be processed on the day it is received.

Drage said if Shaud fails in the Utah court system, the case might test the constitutionality of Utah’s adoption laws on a federal level, which hasn’t been done recently.

“It’s just wrong from a layman’s perspective, but jurisdictional requirements … are something you learn in the first semester of law school,” he says.

Jurisdictional requirements refer to which state’s court has the duty of settling a particular dispute, like in the case of John Wyatt, which has been featured on Dr. Phil and inspired an April editorial in The Washington Post that slammed Utah laws (click here for the story, here for the editorial). The Wyatt case pits Virginia courts against Utah courts. The unique aspect of Wyatt’s case is that the mother of his child has never even been to Utah—a Utah adoption agency came to her.

(Go to the next page for a video interview with Wyatt)

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REPLY TO THIS COMMENT
Posted // November 27,2012 at 12:10

Where is the part about the child's right?

 

REPLY TO THIS COMMENT
Posted // June 23,2012 at 23:03

While I think adoption can be a beautiful thing (One of my friends is a happy adoptee who has a relationship with her natural and adoptive parents, and the other one is a natural mother who is a friend of her first child's adoptive family) it needs to be done ETHICALLY. Fathers are important too and they need to have rights! Adoption agencies who act unethically need to be held accountable for their actions.

 

REPLY TO THIS COMMENT
Posted // January 7,2012 at 12:01

Shame on Utah for stealing babies.  Baby Emma will be returned to her father someday.  What happened is sickening.

 

Posted // January 7,2012 at 18:24 - I did answer your question, re-read it. If a mother abandons her responsibility she is just as liable as a father. And you are wrong, a father doe snot need t relinquish to another father. That is one way. But he can just relinquish same as the mother - allowing the child to a be adopted.

 

REPLY TO THIS COMMENT
Posted // August 19,2011 at 21:35 This is BS. Yeah maybe it was considered "legal" in the state of Utah but this is so so wrong. Come on people think about this. Think about how you would feel if you were the baby all grown up and found out your biological father tried to get custody of you and the state you were born in denied him or worse that your mother denied him. This is terrible. Many mothers fight every day to have their childrens fathers in their childs life only to be let down. This father wants to be a daddy and no one will let him. They just keep hiding behind some law that doesnt even make sense! If anyone has proven that he would be a father to his child its Ramsey Shaud! Keep fighting for whats right! My thoughts and prayers are with you.

 

Posted // January 7,2012 at 18:40 - No, you did NOT answer my question. I asked Angie to justify her assertion that a mother should be allowed to relinquish her financial responsibilites, when we do not allow fathers that same option. Unless you hold the same position as Angie, and are willing to defend it, then your posts here are pointless. And NO, an unmarried father (which is what we are talking about) cannot unilaterally relinquish his financial responsiblity. You are just plain wrong about this. Either another man has to accept the financial burden, or the mother must agree to an adoption. Neither of these possibilities are in any way "unilateral".

 

Posted // January 7,2012 at 18:18 - All of that was already known to me. Your information was actually pretty pedantic, so no, you did not answer my question. You apparently did not even pay attention to what my question was. If you'll read it again, my question was to Angie, asking why she considers it acceptable for a mother to unilaterally relinquish her financial responsibility when a father cannot. And NO, a father CANNOT unilaterally relinquish his financial responsibilities. He has to find some other man who is will to accept the burden in his place. And NO, this does not happen "often" as you state. It is, in fact, very rare. For obvious reasons.

 

Posted // January 7,2012 at 17:51 - #TByte: Relinquishing one's parental rights is different from not having custody and it is also different from simply abandoning a child. Either of the parents can do any of these or they can care for their child. Relinquishment is a legal procedure and it is irrevocable. Fathers often relinquish their rights after a divorce when the mother remarries and the step father wants to adopt the child. There is no provision under law for just ONE parent to relinquish their rights in order not to support their child, that's called abandonment. Both parents relinquishments are required in order fora child to be adopted. Sometimes however mothers lie or are told to lie and say they do not know who the father is, then the child is adopted with just the mother's relinquishment (and can be contested). ** A father however cannot claim he doesn't know who the mother is. ** Does that answer your question? Since he does know, he is legally obligated for support unless SHE relinquishes.

 

REPLY TO THIS COMMENT
Posted // December 29,2010 at 06:51

I wonder if the reason she decided to put the child up for adoption instead of handing her over to her father is because

a} she was unsure who the real father was

b} she could be asked to pay for child maintance

c} with the father from the same town as her she would be bound to run into the child.

im not condoning the adoption at all.. i think he should have the opportunity to a dna test and give the mother the opportunity to sign her rights over to him so that she doesnt have to pay maintance

 

Posted // January 7,2012 at 17:35 - Andie, please explain why the mother should be allowed to sign her rights away and walk off with no financial responsibility for her child, when we do not allow fathers that same option?

 

 
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