Getting Back Baby Jack – Putative Father Registration and Consent to Adoption in Arizona

A nightmare scenario for one Utah father has made national news.  The most disconcerting part of his story is that it could happen again right here in Arizona.

In 2010, Jake Strickland learned that he was to become a father.  Strickland and the baby’s mother, Whitney Pettersson Rathjen, mutually agreed to share joint responsibility for the care of their son despite their inability to maintain their intimate relationship together.  As the pregnancy progressed, Strickland became more and more involved.  He invited Rathjen to numerous family gatherings, paid for medical expenses and groceries, attended doctor appointments, and even converted a room in his home into a nursery to prepare for the arrival and care of his child.

Sledding

During this time, Strickland and Rathjen briefly discussed the issue of whether Strickland should register as the baby’s putative father.  A putative father registry reserves potential paternity rights (including consent to adoption) for the unwed biological father of a child in the event that parentage is disputed after the baby is born.  The legal presumption is that the husband of a married woman is the biological father of her child unless the unwed biological father overcomes legal barriers to establishing paternity, one of which is putative father registration.

Rathjen insisted that Strickland not register and take the mother at her word that she would not attempt to terminate his parental rights.  She even went so far as to threaten Strickland, saying that she would never allow him to see the baby if he submitted his name to the putative father registry.  Strickland, although leery of Rathjen’s odd response, felt he had no choice and never registered.

The day before the baby was born, Strickland and Rathjen spent the evening hours together walking through downtown Salt Lake City and enjoying the Christmas lights on display.  On December 29, 2010, Rathjen gave birth and, unbeknownst to Strickland, declared that she did not know the identity of the father and immediately consented to an adoption.

For eight days, Rathjen ignored or curtly responded to Strickland’s attempts to communicate with her.  At one point, Rathjen affirmed that she was still scheduled to have the baby by Caesarean section on January 12 before finally divulging the truth on January 5.  Since then, Strickland has been embroiled in an extensive and complex legal dispute with Rathjen, her attorneys, the adoptive parents, LDS Family Services, and the State of Utah over his wrongfully terminated parental rights.

Strickland alleges that Rathjen worked together with social workers and the adoptive family to streamline the adoption process and guarantee that he could not assert his paternal right to consent to the adoption until it was too late.  Strickland has been battling for the restoration of his parental rights for three years and filed a civil suit for fraud, racketeering, and other claims on January 2, 2014.  Essentially, Strickland believes that Utah law creates an adoption system that a birth mother can use to defraud an unwed father out of his parental rights with little to no recourse.

It is not yet clear whether the courts will vindicate Strickland’s claims, and the story is certain to continue to evolve as the civil case progresses (the adoption challenge, however, has reached the appellate stage and has established a clear record of factual wrongdoing even if the law does not create an eventual remedy).  That said, the case of “Baby Jack” in Utah could have happened much the same way in Arizona or one of numerous other states with similar unwed paternity law.

19th Century Family

Arizona’s putative father registry statute allows an unwed father to register his claim of paternity and to receive notice of adoption proceedings.  The unwed father must affirm that he is willing and able to support the child and actively seeking paternity in a separate action.  The unwed father must register within thirty days of the child’s birth unless he proves by clear and convincing evidence that it was impossible at the time, but the father’s lack of knowledge of the pregnancy is specifically excluded as a reason for failure to file within the thirty-day period.  The statute, codified at A.R.S. § 8-106.01, declares that “the fact that the putative father had sexual intercourse with the mother is deemed to be notice to the putative father of the pregnancy.”  Furthermore, the adoption consent statute (A.R.S. § 8-106) requires the putative father to object to a proposed adoption by filing a paternity petition and serving it to the mother.

This means that a father’s right to consent to, or reject, a potential adoption of his child can be defeated if the mother simply refuses to tell him about the pregnancy or the date of the child’s birth.  The Baby Jack scenario could easily be repeated in Arizona – and may already have occurred – because the statute does not waive its strict requirements in the event of fraud.  In fact, in 1971, then-Attorney General Gary K. Nelson issued an opinion recommending that the putative father registry statute be amended to require notice to all fathers whose identity is known when an adoption proceeding is initiated.  Op.Atty.Gen. No. 73-5-L.  Unfortunately, it appears that the Legislature ignored Mr. Nelson’s advice and still requires strict compliance with the onerous requirements of § 8-106.01.

As a result, one need not be a legal mystery writer to imagine the potential for a pregnant woman to accept the help of the baby’s father until shortly before childbirth and then dodge service of the paternity petition (assuming the putative father even receives notice of the adoption or manages to register in time).  The mere possibility of this result, let alone its apparent likelihood, is preposterous in today’s sophisticated world of family law.  Unfortunately, as long as states rely on antiquated notions of legitimacy and parental rights initially formulated almost a century or more in the past, the ability of well-meaning fathers to protect themselves will be handicapped.

Accordingly, the best way for an unwed father to protect his parental rights is to register before the baby is born notwithstanding his trust in the mother.  Admittedly, this advice is not helpful to an unwed father who does not learn of the pregnancy in time, either through mistake or misconduct by the mother, but early registration remains the best way to protect paternity rights.  That said, existing putative father law in Arizona and other states is not particularly effective at protecting the rights of fathers who want to be involved in their child’s upbringing.

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The Importance of Family Counseling in Dissolution and Legal Decision Making Disputes

All too often, tragedies occur in the context of divorce and custody disputes.  In Arizona we no longer use the term “custody” and instead use the phrase “legal decision making,” but for the purpose of this article we will refer to it colloquially as custody.  Unfortunately, many of those tragedies are perpetrated by the parties involved, but there may be ways to prevent the unspeakable from occurring.

On Christmas Day, a Casa Grande woman murdered her daughter, poisoned her family, and stabbed her ex-husband several times before attempting to kill herself.  Recent questioning revealed that the woman, Connie Villa, feared losing custody of her children to her ex-husband.  Few details are yet known about the couple’s 2012 divorce, made official a few months ago, and subsequent custody battle.

Eye Rub

Homicide is not commonplace in a family law dispute, but the threat of domestic violence, kidnapping, and other potential hazards and wrongdoing is great enough that courts often order counseling.  Furthermore, courts may order that the parties to a family law proceeding undergo a psychological evaluation, rehabilitation for substance abuse issues, and other forms of treatment to help create the safest environment possible.

Attorneys also have a pivotal role in resolving disputes in a way that promotes the long-term health of their clients and their families. Unfortunately, the professionals assigned to help guide a family through a case are limited by the good-faith participation of the parties.  For example, a husband who struggles with moderate depression may lie about his symptoms, fail to disclose his diagnosis, or refuse recommended treatment because he fears potential consequences with the court, his employer, or the rest of his family.  Conversely, the wife of a clinically depressed husband may exaggerate his behavior or fabricate an allegation of abuse in an attempt to compel a more favorable judicial result.

Meanwhile, the evaluators and caretakers are unable to make accurate recommendations to the court and cannot prescribe proper treatment of what ails the parties.  Ultimately, the failure of the parties to participate openly and honestly in the process can result in tragedies that might have been preventable.

It cannot be known whether the Christmas Day killing of Aniarael Macias, an innocent 13-year-old girl, could have been prevented, or even whether Villa suffered from an undisclosed or insufficiently treated illness, but the case provides a sad reminder of the high stakes that a family legal dispute can raise.

Welcome Back

If you are involved in a contested divorce, a custody dispute, a dependency hearing, or simply feel as though your family’s affairs are too strained to manage, the most important thing that you can do is to engage with the resources available to you.  Family court cases are immensely stressful to the parties, and even one or two counseling sessions can tremendously improve your quality of life during a difficult time.

Moreover, good-faith participation in the process, including complying with recommended evaluations and treatment, is critical.  Vexatious tactics and vengeance-oriented litigation might strain your family to the breaking point and trigger new disputes, violence, or worse.

The unseen forces that can damage a family – or an individual – beyond repair are particularly worrisome around the holidays, during school breaks and vacations, and just before or after moving to a new home or job.  Your attorney should be aware of these concerns and remind you that being overzealous in trying to protect yourself or your children might have the opposite effect of what you intended.

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When Arizona Foster Parents are Ready to Adopt – A Rare Opportunity for a Free Lawyer

I received a call the other day from a potential client and her partner.  They had been fostering a child through a CPS placement for almost 19 months.  The baby was just three weeks old when he was placed in their care.  The first few weeks of his life were spent in a hospital.  The birth mother had limited prenatal care and the baby was born as a S.E.N. (Substance Exposed Newborn).

Although foster training taught the moms that their obligation was to nurture the child until reunification with the parents occurred, as with many loving foster families, they fell in love with the baby after welcoming him into their Gilbert home.  Notwithstanding the drug exposure, he was thriving in their care.

Sports Kid

The foster moms went to every Dependency Hearing and even attended the Foster Care Review Boards.  The biological mother appeared at the court hearings and proclaimed a desire to be reunited.  Her numerous missed TASC drug tests told a different story.  Her erratic behavior and failure to attend a court-ordered psychological evaluation coupled with an arrest for possession of drug paraphernalia certainly did not help her court appointed attorney present a defense or argument to expedite the reunification.

Meanwhile, the CPS case workers constantly changed.  There was an investigative worker, an involved supervisor, and three others since the baby had been in the State’s care.  Fortunately, no one ever mentioned removing the child from the foster parents.  There was never a biological father identified (referred to as a “John Doe”) and mother’s family was uninterested and/or equally enmeshed in methamphetamine culture.

Ultimately, the biological mother’s rights were terminated (she was pregnant again at the Severance hearing).  Now, six weeks after the severance hearing, the foster mom was meeting with an attorney for the first time to see what needed to happen.  Foster Mom, who is a physician in Chandler, was eager to pay my office to tie this up and complete this adoption so that they could get back to normalcy and so that she and her partner would not have to deal further with CPS, court hearings, Foster Care Review Boards (FCRB), etc.

Sunglasses Baby

As her check book came out on my conference room table, I had the rare pleasure of telling the moms that this would be free for them.  Pursuant to rules regarding ‘non-recurring adoption expenses’, the legal fees for the adoption can be paid by our Uncle Sam, irrespective of the financial situation of the parents.

Our law provides that, in the case of CPS placement adoptions, non-recurring adoption expenses are reimbursed (paid) by the government.  What this means is that, once a Parent’s Authorization for DES to Reimburse Attorney Directly form is signed and other basic pleadings filed, the adoption can proceed through its conclusion without the adopting family incurring costs.

To be clear, this only applies to CPS placement adoptions in Arizona.  Qualifying placement adoptions require that the child is legally free for adoption and cannot or should not be returned home, the child experiences of one numerous broadly defined special needs, and the adoptive parent cannot adopt without a subsidy.    Most other situations, such as private severance actions, step-parent adoptions, and second-parent adoptions, still require direct payment to the attorney.

Still, the availability of government reimbursement for some adoptions contributes substantially to the placement of children with wonderful parents without the added burden of adoption expenses.  The joy felt by a newly recognized adoptive family is something for which every Arizonan should feel pride.

 

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Supreme Court Hears Key Adoption Case for Arizona

The U.S. Supreme Court heard an important adoption case on April 16. The case, captioned Adoptive Couple v. Baby Girl, involves complex issues of sovereignty and statutory construction, to say nothing of the high stakes element of a little girl’s permanent placement.

In 2009, a South Carolina couple took custody of a newborn girl after her mother agreed to let them adopt her. The girl’s biological father objected to the adoption on the grounds that the mother had not consulted with him before making the arrangements.

Supreme Court (Woodnick)Under typical circumstances in South Carolina (and in many other states), the father’s consent would not have been necessary because he was not married to the mother and was considered an absentee. A 1978 federal law entitled the Indian Child Welfare Act, however, provided a strong enough legal ground for the state to award custody to the biological father in December, 2011.

The Indian Child Welfare Act (ICWA) was passed to address what was described as an “alarmingly high” rate of removal of children from Native American families. The law requires inclusion of the family’s tribe in proceedings to determine child custody, including adoptions. Under ICWA, the “biological parent or parents of an Indian child” cannot have their parental rights involuntarily terminated without notice, hearing, and proper showing that continued custody of the child by the parent or custodian “is likely to result in serious emotional or physical damage to the child.” Such notice must also be given to the child’s tribe so that the tribal courts can engage in determining the child’s placement.

If such a showing is made and the court terminates a parent’s rights, ICWA requires the court to give preference to the child’s extended family, other members of the child’s tribe, or to “other Indian families” when placing the child.

In the case at bar, the Supreme Court must decide if (and how) ICWA applies to the girl’s biological father, with whom she will have spent about 18 months by the time a decision is reached. No matter the result, one of two families will be devastated. Broader concerns with the case involve the potential limitation of ICWA, prompting several states, tribal councils, and others to file numerous amicus briefs.

Saguaro (Woodnick)The State of Arizona and the Inter Tribal Council of Arizona have each filed briefs in support of ICWA. Arizona is home to the nation’s third-largest population of Native Americans at around 155,000 people; if ICWA is overturned, the impact on Arizona would be disproportionately large. Legal commentators speculate that the Supreme Court’s high rate of reversal indicates the Justices’ intent to do away with outcomes like these under ICWA, but the form that such reversal might take is in doubt.

Adoptions are complicated endeavors which sometimes lead to tragic outcomes. ICWA is designed to respect tribal sovereignty and to protect the cultural heritage of Native American children whose unique situation makes them more vulnerable. At times, however, statutes have unintended consequences that can lead to termination of the rights of both biological and adoptive parents. Adopting a child in Arizona is a complicated process (and not only because of tribal law issues), so both Arizona adoption lawyers and prospective adoptive parents must exercise due care and caution.

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Arizona Judge Denies “Pregnant Man” Divorce

In December, we outlined some of the legal issues surrounding the so-called “Pregnant Man” divorce. Last week, a Maricopa County Superior Court judge ruled against Thomas Beatie, saying that he had failed to prove that his marriage is valid, azcentral.com reports.

Pearl Harbor Memorial (Woodnick)Thomas Beatie was born physically female, but began taking male hormones in 1979 and had his birth certificate and driver license changed to reflect his actual sex before marrying his wife, Nancy, in 2003. The couple later learned that Nancy could not have children, so Thomas, who had not undergone sex reassignment surgery, underwent in vitro fertilization and eventually bore three children.

Due to provisions in both the state and federal constitutions, the parties to any case before a judge – whether criminal, civil, family (as here), or otherwise – must first demonstrate that the court is legally authorized to hear the dispute. This legal authorization, known as jurisdiction, is usually a mere formality of which lawyers dispose in one or two lines at the beginning the pleadings. In some cases, however, the court’s jurisdiction is questioned either by one of the parties or by the judge (after all, the judge cannot continue to hear the case if he or she does not have jurisdiction over the controversy).

In the divorce of Thomas Beatie and his wife, Nancy, the judge ordered the parties to prove that their marriage, which took place in Hawaii, was valid as between a man and a woman. Because the Arizona Constitution defines marriage as exclusively between opposite-sex individuals, Judge Gerlach concluded that he would not have jurisdiction to dissolve the marriage if it were not valid from its inception.

Brain Diagram (Woodnick)Judge Gerlach saw the marriage as “between a female … and a person capable of giving birth, who later did so,” so he denied the couple’s request for a dissolution. Furthermore, Judge Gerlach opined that a double mastectomy is not legally equivalent to sex reassignment surgery and declared that hearing this case would be “precisely the kind of absurd result the law abhors.”

Because same-sex marriage was not legal in Hawaii at the time of the Beaties’ marriage, either, Judge Gerlach’s decision is a bit perplexing. Arizona, like Hawaii, permits an individual to have their birth certificate and driver license gender changed. Courts around the country have struggled with transgender issues because legal precedent is often absent and because contemporary psychology and neuroscience have only scratched the surface of understanding personal identity. An appeal appears likely because the Beatie case is one of first impression for Arizona courts.

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Proposal Will Change Arizona Child Custody Law

A new piece of legislation in Arizona may require divorced parents to file notices with the court and serve their ex-spouse with the notices before moving.

Boxes (Woodnick)The bill, described by Bob Christie writing for the Associated Press (reprinted on azfamily.com – link here), would require divorced parents to give notice 60 days in advance of the proposed move. If their ex-spouse objects, then the parent who wishes to move would need to seek judicial approval. While this requirement is no different than the current relocation statute, the circumstances which would prompt the written notification are.

Under current Arizona law, parents are required to notify their ex-spouse if they intend to move out of state or more than 100 miles away. The purpose of this requirement is to address the impact that a long-distance move can have on the parenting time of the non-custodial parent.

The new bill removes the 100-mile “bright line” rule, and instead requires notice to be given if the proposed move substantially affects a number of parenting time related issues, such as parenting time, school attended by the children, or the traveling time for the exchanges. Proponents of the new bill say that abolishing the 100-mile rule will stop abuse by custodial parents who frequently move short distances to interfere with the non-custodial parent’s parenting time, or resolve the problem that arises when a parent moves less than 100 miles, but parenting time is still negatively affected.

Conversely, opponents fear that custodial parents’ right to travel and freedom to accept new employment opportunities. Christie’s article also points out one of many potential conflicts in the event of an involuntary move – a landlord may require a custodial parent to move after issuing a 30-day notice, leaving them without enough time to file proper notice with the court and the non-custodial parent.

Moving House (Woodnick)In Arizona divorce and child decision-making and parenting time law, the ultimate goal is to effectuate the best interests of the children in every case. For parties with a parenting plan including parenting time for both parents, the new law, if passed, will prevent abuses which are presumably allowed under current statute. It could also open the door for abuse, however, because it become so easy to object a move even if the distance is relatively inconsequential.

The interests of children are almost always best served by the agreement of the parties. Divorced parents who can come together to work out parenting plans and later amend them to incorporate the needs of everyone involved – whether those needs include moving, changing the schedule, or some other arrangement – do their children a great service. After all, having their parents repeatedly feuding in court for unmeritorious reasons is not in any child’s best interest.

Posted in Brad TenBrook, Gregg R. Woodnick, Leslie A. Satterlee, Parenting Plan, Schedule | Tagged , , , , | 1 Comment

Prenuptial Agreements in Arizona

A recent article in Huffington Post describes the circumstances surrounding the divorce of Peter and Elizabeth Petrakis.  Peter, reportedly worth $20-30 million, executed a prenuptial agreement with Elizabeth before the marriage, but a trial judge declared the agreement unenforceable due to fraud in the inducement.

Crumpled (Woodnick)According to the story, Peter asked Elizabeth to sign a prenuptial agreement three months before the two were to wed in 1998.  The agreement stated that Elizabeth would not be entitled to her share of the community property, but would be given $25,000 for every year of the marriage (a significantly smaller amount than the appreciation of assets she would stand to gain without the agreement).

Elizabeth refused to sign until four days before the wedding when Peter promised to terminate the agreement upon the birth of the couple’s first child.  Although prenuptial agreements typically must be made in writing, the court determined that Peter’s unkept promise fraudulently induced Elizabeth to sign the contract.

Prenuptial agreements are a useful tool for couples who wish to determine the disposition of their own assets in the event of a future divorce – protecting businesses, personal property, and securing assets for children are common reasons that parties might seek a prenuptial agreement.  Such agreements take the form of written contracts and are rarely overturned unless the agreement was acquired by coercion or misrepresentation, or because the documents themselves were not prepared in accordance with written law.

For Arizona prenuptial agreements, A.R.S. § 25-201 et seq. contains provisions outlining the necessary form of a prenuptial agreement, how the agreement should be enforced, and other requirements and restrictions.  Although a prenuptial agreement is enforceable without an exchange of consideration (as is necessary for most other contracts), it must be in writing and must be signed by both parties, at minimum, to have legal effect.

Heart Carabiners (Woodnick)The agreement becomes effective once the parties are married, but will not be enforced if one of the parties misrepresented (or failed to disclose) their assets, coerced the other party into signing, or if the agreement was “unconscionable” at the time of signing (a legal issue for a judge to decide).  Needless to say, the existence of a prenuptial agreement is a critical issue when the marriage begins and if the marriage is dissolved.

If you would like to read the original article in Huffington Post, click here.

Posted in Brad TenBrook, Divorce, Gregg R. Woodnick, Leslie A. Satterlee | Tagged , , , , | 1 Comment