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Home / Articles / · Archive / News & Columns /  Forgotten Father
News & Columns

Forgotten Father

A Utah birth father seeks custody of his son -- and asks why the courts allowed the child to be adopted in the first place.

By Carolyn Campbell
Posted // June 11,2007 -

All Scott Hartwig wanted was to be a father to his son. But the baby’s mother put into play a strategy that, when helped along by state law, would keep him physically removed and helplessly without a bond to his kin—his flesh and blood.

The blow came in February 1999 when Wendy, his former fiancée, announced that she had chosen a family to adopt the baby after the birth.

“I knew our future would be a rocky road, but I always planned to take my baby home from the hospital,” he recalled recently.

Gearing up for what he imagined would be single fatherhood, Hartwig had assembled some $3,000-worth of baby supplies in a nursery he set up at his home. From blankets and children’s Tylenol to a crib and a changing table, he was ready to fulfill what he saw as his responsibility as father.

But he knew that Wendy’s promises to surrender their child were sincere. So he phoned local hospitals, declaring himself to be an expectant father and asking that he be notified of his child’s birth. He also registered with the state Bureau of Vital Statistics and contacted adoption associations. He warned his former fiancée in no uncertain terms not to give up the baby. “I told her I wouldn’t consent to adoption, and if she gave my child away I would have her thrown in prison for kidnapping.”

“Remember, this is my baby, too,” he recalls saying as Wendy threw her engagement ring on the table. She ordered him out of the house just three months before the due date. At the time, he thought his refusal to consent would prevent the adoption. Now he knows better. “She gave away my child knowing full well I was out there,” he says.

Wendy, who asked City Weekly not to use her last name in consideration of her three other children, remembers things differently. She contends he was not around for most of the first two trimesters of her pregnancy, returning only in December before the scheduled February birth. “He took off all the time and was never there. I didn’t know what he was going to do and what he really wanted. He was preoccupied with baseball and his friends and not being there when the one thing children need most is time and energy.”

She says his claim that she gave up the child to get back at him is outlandish. “Giving up my child was excruciating pain, but I knew the adoption was meant to be. I didn’t go through a whole pregnancy cleaning houses and scrubbing floors and end up giving up [the child] just to hurt Scott.”

Ann Lamphere, director of Adopt An Angel adoption agency, says she worked with Wendy and the adoptive parents, knowing that Wendy believed she would have no support and no way of raising this child. “It was a way to get her life back on track, and an effort to make a plan that would help her children.”

While they tell opposing stories, Scott and Wendy agree that their relationship was turbulent from the beginning. Although they once thought they had found love, trust issues led to the end of their relationship. Now, both say they only want what is best for the child.

At the center of this battle is a 1995 Utah law that was designed to make it easier for families to adopt children. It also makes life difficult for people like Hartwig. Wendy maintains her relationship with him was in such a shambles that she couldn’t possibly raise the child with him. Nor, with three other children, did she have the time or resources to raise the child herself. But Hartwig claims that as the willing father, he got the short end of the stick under Utah law. The attorney representing him in a paternity suit, Sharon Preston, believes the law could be unconstitutional.

Under Utah law, married couples naturally have all the rights to their children. But unmarried people who sire and give birth to children may be relinquishing their rights to parenthood. For an unmarried man to assert his rights as a father, he must prove that he paid at least half of all the pregnancy and delivery costs. In addition, he must file a paternity suit and register with the Bureau of Vital Statistics to prove he’s the biological father of the child.

For his part, Hartwig maintains he carried through with all his responsibilities as required by law. But not everyone agrees, most importantly, the court. Nonetheless, Hartwig has not given up hope of one day being a father to his son.

No one called Hartwig the day the baby boy he and Wendy had ironically decided to name Justice was born. It was 18 days after his baby’s birth that Hartwig heard from his attorney that he was the father of a son. He decided to name the boy Devin. But by then, the infant’s adoption was assured. “My emotion was complete loss and sadness when I heard about the adoption,” he says.

Today, he says that Wendy delivered the baby under her maiden name, rather than the name she now uses. The baby was born at LDS Hospital, rather than University Hospital as was originally planned. He believes she was coached into concealing her identity so hospital personnel wouldn’t recognize her as the mother of his child. Two days after his birth, the baby Hartwig thought of as Devin Reade Hartwig became the adopted son of another couple.

Preston explains that her client’s situation illustrates weaknesses in the law passed by the 1995 Utah Legislature that is as yet untested in appellate court. She notes that for years fathers like Hartwig who wanted to pursue parenting were required to file a notice of paternity. “The reasoning is that the mother’s identity is known because she gave birth. The Legislature didn’t want a child staying in legal limbo while someone was trying to track the dad down.”

That requirement places the mother and father on equal footing, Preston says, as far as being identified as the child’s parents.

A second provision in the law requires that the father not only register with the Department of Health but also file a paternity suit with a consent order for child support. Preston says Hartwig complied with all requirements. “These two steps can be easily verified,” says Preston, who adds that the intended goal of the Legislature was to help adoptable children find homes more quickly, not to force children like Devin Hartwig into adoption when there is a biological father who wants to act as parent.

But the Legislature went a step further, Preston explains. “The third step says the father has to show that he paid his fair share of the medical expenses incurred in the pregnancy and birth. This requirement is imposed on the father and not the mother. No matter how her pregnancy was paid for, she still has her parental rights.” Preston contends the law is unconstitutional as a gender-based statute because it is a financial responsibility test tied to only one party. The law validates a complaint of many divorced fathers?that their relationship with their children has been reduced to a checkbook. “The whole relationship boils down to money in this responsibility test,” says Preston.

It was this third distinction that cost Hartwig custody of his son. At the time of Devin’s birth, he and Wendy were estranged. “She never returned a single phone call to me. I left message after message on her answering machine, asking if she was OK or if she needed anything. Once I called in the early morning and she hung up after saying I had the wrong number,” says Hartwig.

Wendy moved in early February 1999 after Hartwig served her with papers indicating that he would deny consent to an adoption. On Feb. 8, Wendy informed him she had already chosen an adoptive family for their child.

Preston explains that the problem with the third provision of the law that affects Hartwig is that it “basically requires a trial” to determine whether the father has paid medical expenses. In order for the father to prevent adoption placement, such a trial must somehow take place before the end of the 24-hour period after birth when the mother will decide whether to place the child for adoption. In cases such as Hartwig’s, the judicial process could easily take much longer. “It is contrary to the Legislature’s claim that they want to see children placed quickly,” says Preston.

State Sen. Terry Spencer says he has seen at least half a dozen cases similar to Hartwig’s in the last four or five years. “And I am only one attorney,” he said.

He sponsored Senate Bill 64, which became law in May. “The bill deals with issues of jurisdiction, to try to make an orderly way to terminate parental rights when someone has not come forward to take responsibility for a child,” says Spencer. The new law underscores previous statutes, further indicating “a birth father must give much more than a simple notification. He is required to provide support, and birthing and prenatal expenses.”

On Aug. 23, 1999, Third District Judge Roger Livingston ruled that Hartwig’s nursery and other things, like clothes and cash payments of less than $100 constituted only token contributions toward the medical expense requirement. He concluded that Hartwig failed to comply with the provisions of the law, and that his consent was not required for the adoption.

Hartwig has appealed the decision.

Hartwig says the judge compared Wendy’s out-of-pocket expense during the pregnancy and birth with his. (Medicaid paid the bulk of the expenses.) She said she had paid $200. Hartwig admitted he had paid nothing because of the estrangement and lack of communication. Judge Livingston ruled in favor of Wendy. “He said my paid share of the money for medical care had to amount to at least $100, or half of her $200. The judge gave away my son for want of $100,” says Hartwig.

Because the pair weren’t communicating, he had received no medical bills and had no information about her medical costs. “Without communicating with her, how would I know how much to pay? Should I put in $100? $500? $1,000?” He points to his nursery as evidence that finances didn’t stand in his way of wanting his child. He estimates that his expenses so far in seeking paternity are nearly $15,000. “The parenting exam was $300 and the DNA test was $500.”

Mediator Phil Campbell says the dispute illustrates a serious public policy problem. “Adoptions affect some 1,800 children in Utah each year. No one knows the degree to which cases like this one are a problem, but it’s a big enough problem for our legislators to put some limits on how unmarried fathers can intervene in the process.”

Campbell notes similarities between the Hartwig case and a well-publicized case in Illinois a few years ago. “In the Baby Janikova case, John and Jane Doe adopted 4-day-old Baby Janikova. At the time, the natural father was out of the country. The boy’s mother told the father that the baby had died, then delivered the baby at a different hospital than the couple had originally planned. Fifty-seven days later, the father learned the truth. As in the Hartwig case, Baby Janikova’s parents were unmarried and the father contested the adoption because it lacked his consent. As in the Hartwig case, the trial court denied the father’s challenge and the father appealed.

In a widely publicized decision, the Illinois Supreme Court reversed the trial court’s decision, rescinding the adoption. Because three years had lapsed, media coverage focused on the fact that the baby was torn away from the only parents he had ever known. He was 3 years old when he first met his biological father.

As in the Hartwig case, the facts showed the trial court’s decision to be a Catch-22. In both cases, the mother blocked the father’s attempts to care for his child. Because the trial courts believed both fathers had failed to show “interest” in their sons, as defined by state law, the trial courts ruled that adoption was in the best interest of the children.

In the Janikova case, the Illinois Supreme Court ruled that the trial court judge erred. “The trial court ignored the fact that the mother had deceived the father, depriving him of his right and obligation to care for his son,” the justices said in their opinion. “The father had no opportunity to discharge any familial duty.”

That’s a fact Campbell believes is consistent with the Hartwig case. “In the Hartwig case, the trial judge ruled he waived his rights by not paying the $100 that [the mother] never told him about?she wouldn’t ever return his calls.”

Under Utah law, an unmarried father is required to pay his portion of medical costs only if he was not prevented from doing so by the person having custody of the child. “[The mother] prevented Hartwig from doing anything for their child,” Campbell concludes.

In the Janikova case, the Illinois high court concluded that, “We must remember that the purpose of an adoption is to provide a home for a child, not a child for a home.”

To demonstrate his fitness as a parent, Hartwig underwent a criminal background check, a child abuse and neglect background check, a psychological exam, a physical, an AIDS test and an adoption home study. “When I got it all done and put together, I was qualified to adopt a child, but I couldn’t take my own son home,” he says scornfully.

Following those tests but prior to the August 1999 ruling, Hartwig was granted visitation with his son. “Because they considered me a risk to take him and run, I was forced to pay $35 a visit for someone to supervise.”

Those visits cost $1,700 before the August adjudication ended his supervised visits.

“The visits were three hours of loving Devin and feeding him. I don’t know what he weighed or measured on the day of his birth, but during a visit I took a lock of his hair to keep.” Hartwig theorizes that someday a DNA test of this hair might prove to the boy that he has another identity as Devin Hartwig.

Hartwig hasn’t seen his son since the Aug. 23, 1999, ruling. While he savors his memories and photos from the visitations, he is prepared to challenge both the current adoption and the law itself.

Meanwhile, Hartwig has gone on with his life and is now in another relationship that has given rise to a child. His second son, Jaden Pierce Hartwig, was born on Dec. 18, 2000. “Devin would have a wonderful mother at home who is more than willing to adopt him and be his legal guardian.”

Nonetheless, Wendy is of the opinion that paternity laws should be tightened. “Look at all Scott has been able to do. He has caused so much grief and havoc, even with the law in place.” She adds that her grief over the loss of her child was interrupted by the court hearing. “I had to stand alone and fight. I went right from the hospital to courts, trials and depositions.”

Lamphere denies that Wendy used her maiden name when giving birth and explains that the law was made to keep women from having to raise a child because of threats by the birth father. “The Legislature was taking into consideration the general public, not this particular case. Birth dads in the state of Utah are put on notice that if they have relations with a female, a baby might result. And an adoption plan might result from that child and he does not have to be notified.”

Hartwig should be given his due in that he did care about his child, Lamphere concedes. “But the judge ruled against him and we believe that will happen again,” she says, referring to the appeal. She adds that many birth fathers over age 30 wish to have some contact with their child, yet she hasn’t seen another who assembled a nursery such as Hartwig’s. “The birth father’s interest usually doesn’t go this far.”

While Hartwig waits to hear the results of the appellate hearing, he clings to lasting mementos. A greeting card Hartwig’s mother addressed “To My Grandson” will remain sealed until the day Devin pries open its flap. “He’s my son. I need to put him to bed and know that he is safe in my house and will see me in the morning,” Hartwig says.

“I’ll be the man who meets his son on Oprah 25 years from now. Or maybe I’ll be able to sit in the stands and watch him play basketball, or watch him from afar some other way. He’s my flesh and blood. I’ll never go away.” u

___

Carolyn Campbell is the author of the book Together Again: True Stories of Birth Parents and Adopted Children Reunited.

 
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