Friday, April 21, 2006

Equal rights for unwed fathers

While the ''Roe v. Wade for men" lawsuit filed in Michigan earlier this month seeks the right for men to terminate their financial obligations to a child in case of unwanted pregnancy, another dispute over male reproductive rights has been making news as well. Last week, a front-page New York Times story explored the plight of unwed fathers who fight for children placed for adoption by the mothers.

One of the men profiled in the article, 23-year-old Arizona resident Adam Clayton Jones, learned that his former fiancée -- who had ended their relationship -- was pregnant and seeking to put up the baby for adoption in Florida, where they had met while attending college. An adoption agency called Jones to ask for his consent to the adoption. He refused, fully intending to raise the baby himself. But Jones did not know that in order to exercise his parental rights, he had to register with the state registry for unmarried fathers. Because he missed the deadline, he lost all his rights and has never seen his child, now 18 months old.

Sadly, this case is all too typical. While divorced fathers complain that they are often treated as second-class parents, never-married fathers are much lower on the totem pole. True, their situation has improved since the 1970s, when an unwed father's children could be given up for adoption without his consent even if he had raised them.

Today, partly as a result of several legal controversies in which unmarried fathers successfully contested adoptions, the majority of states have ''putative father registries" by means of which a man can assert his paternity. But the purpose of these registries often seems to be less to protect the rights of the father than to protect the rights of everyone else: the mother who wants to give up the baby, the adoption agency, and the adoptive parents. Some would say that they also protect the rights of the child. But that depends on whether you believe that a child is better off being adopted than being raised by the biological father.

In most states, the unwed father has to file with the registry either within a certain period of the child's birth -- from five to 30 days -- or, as in Massachusetts, at any time before the adoption petition is filed. But neither the mother nor the adoption agency has any obligation to notify the man of the adoption, or of the fact that he is a father or father-to-be. Even when the father is notified, he may not be told about the putative father registry -- which is what happened to Jones, whose attorney, Allison Perry, refers to the Florida registry as a ''well-kept secret." That is the situation in most states. Not only are most men unaware of the registries' existence, even some lawyers don't know about them.

Amazingly, many specialists believe that it's too much of a burden on the woman or the adoption agency to require that a man be notified of his paternity. Instead, they argue that it should be his responsibility to file with the putative father registry every time he enters a sexual relationship with a woman, on the off-chance that a pregnancy may result -- a requirement that, if nothing else, smacks of a humiliating invasion of privacy. Surely, it is far more efficient and less invasive to limit the notification requirement to cases in which a pregnancy actually happens, and to place the burden on those who are aware of the pregnancy.

You would think that, unlike men who seek to avoid their paternal responsibilities, fathers who want to be responsible for raising their own children would at least encounter societal sympathy and support. Sadly, that has not generally been the case. Unwed fathers who contest adoptions are often faulted for not taking affirmative steps to find out about the child's existence, and in some cases are blamed even if they were actively deceived by the mother. Often, they're suspected of being abusers whose real hidden motive is to control the mother.

The issues of men burdened with responsibility for unwanted pregnancies, and of men who are not allowed to be fathers to wanted children, are linked by a common thread. Biology has made men and women unequal with regard to reproduction. In recent decades, thanks to both technology and social change, we have made strides to alleviate the inequality for women, helping them avoid unwanted childbearing. But we have lagged far behind in equalizing the situation for men. We cannot ask men to be equal parents while giving virtually all the power in reproductive decisions to women.


Justice for men coming in Australia?

A looming battle that could allow cuckolded men to sue deceitful wives for the cost of raising children conceived outside their marriage has been described by High Court judge Michael Kirby as opening a "Pandora's box". If the full bench of the High Court rules in favour of Victorian father Liam Magill, the court will set the ball rolling for dozens of new compensation cases, including those brought by men who learn they are not genetically related to their children and who want to recover child-support payments and other damages. Mr Magill has alleged he was tricked into paying tens of thousands of dollars to his unfaithful former wife in support of two children that were not his own.

However, Justice Kirby said the court would have to take care in deciding the case. "This is the Pandora's box we open ... every case where the male, hurt and having to pay child support, is unhappy about it, they are going to sue and claim minutiae of time they spent with the child who turns out not to be their genetic child," he said. "We all know that in the family law situation, it is not just an ordinary case about money, it is often a case that involves a lot of emotion."

While the Liam Magill case could pave the way for dozens of new compensation cases, the same principle could also be used by an embittered "ex" who claims to have been duped into marriage because their partner said they were a millionaire, or they "owned a country castle". Claims for damages could even arise if a partner committed bigamy as a result of their spouse lying about a previous marriage.

Justice Kirby, one of six judges hearing the case, told a hearing in Canberra this month that the law of deceit could be used vindictively by emotionally wounded couples. Historically, the law of deceit, which is related to fraud, has only applied to commercial relationships, not those on a personal nature. Justice Kirby said three important social changes appeared to be pushing the need for legal reform in this area: availability of quick and discreet tests to establish paternity, the rising rate of marriage breakdown and the end of laws allowing spousal legal immunity. A decision in favour of Mr Magill would mean family issues involving the tort of deceit would be heard in the civil courts and not the Family Court.

Lawyers for Mr Magill's ex-wife Meredith argued it would be wrong to apply the law of deceit to family relationships, and warned that a finding for her husband would cause a rush of litigation against women.

Mr Magill learned he had not fathered two of his supposed children after he applied to the Family Court in 2001 for a DNA test to be carried out. He married Meredith in 1988, but 18 months into the marriage she began a long-term affair. The marriage ended in 1992 after Ms Magill had given birth to three children, only one of whom was Mr Magill's. He continued to give 32 per cent of his income as child support for all three children until 1999, believing they were all his.

The court heard that the US has allowed such civil suits for years, dubbing them "heart-balm" actions. But judge Ken Hayne pointed out that some US states were considering halting all spousal claims for deceit.


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