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The prospect that a judge’s own heart strings may be pulled is a liability of protracted cases, one that may lead to "ends-mean thinking" where emotions influence decisions, Smith said. The Utah Supreme Court distanced itself from emotional decision making in its 2007 decision, noting in its opinion that: "Once an unmarried biological father has established standing to contest, and does in fact contest, an adoption, the level of bonding between child and anyone other than the biological parents becomes legally irrelevant."
But the best way for courts to ensure fair and rational decisions is to deal with a case early enough that "heartstrings aren’t tugged," Smith said. "They should institute a rule where they would fast track these cases, not allow any extensions and the timeframe might be truncated."
According to court data, there have been just 16 contested adoption cases in 3rd District Court, the state’s largest, since 2005. That count may not include paternity actions filed by unwed biological fathers.On average it took judges in 3rd District Court 535 days to resolve the contested cases between 2005 and 2011. The average number of days last year was 777.
David McConkie, an adoption attorney who now works for LDS Church Family Services, has handled cases where children were removed from adoptive families.
"The hardest cases the courts ever deal with are cases when they’ve got a baby being raised in a home and they’ve got to remove that child from a home," he said. "But judges will follow the law, and they will apply the law and say if the father’s rights were violated under the statutes of whatever state you’re in, they’ll remove those children from that home. It happens more than you think."
But there is no question that the more time that passes, the more uncomfortable the prospect of disrupting a placement becomes for nearly all those involved — a situation that would seem to benefit prospective adoptive parents.
"My experience generally is that adoptive couples want resolution and don’t generally seek to specifically drag things out," Hardy said. "They may recognized that is to their advantage, but they won’t take steps to specifically drag things out. In my experience, it is generally the system that drags it out, not one party or another that does so."
Hardy said he has had several cases, most outside of Utah, in which a judge was "very reluctant" to disrupt custody because a child had been with adoptive parents for a lengthy period. Instead, the judge urged the parties to come up with an alternative, such as shared custody or visitation.
That’s happened in a few Utah cases, too, after Utah Supreme Court decisions issued opinions favoring an unwed father’s right to intervene in an adoption proceeding.
The months and years of uncertainty are stressful for all the adults, no doubt, but the greatest concern is for the well-being of the child at the center of these adoption disputes.
Doug Goldsmith, executive director of The Children’s Center in Salt Lake City, said at the point a trial judge makes a finding, a child is typically no older than a year or so.
"The months that subsequently pass, especially when the father has not had any contact, are critical to the child’s psychological health," he said, adding that fathers face a "significant complication" in that toddlers and preschool-age children are too young to grasp what a "dad" is.
"One of the things we know with attachment research is that after the age of 2 it gets more difficult to move children successfully," Goldsmith said. "And moving a 4-year-old who says, ‘This is mommy and daddy’ is a very different story than moving a child who is not quite that developed yet."
And, he points out, a child isn’t just being removed from the adoptive parents. There is a whole community — siblings, extended relatives, people the child may know at church or school, even the family pets — who are left behind.
"It’s really, really complicated but we don’t have great answers for it yet," he said. Ideally, it would be sorted out before birth, or at least by the time an infant is 6 months old, he added.
That’s one of the objectives of the voluntary pre-birth notice provision just approved by the Utah Legislature, Hardy said. The provision allows a birth mother, adoption agency or their attorneys to send an unwed father a notice that the mother is considering an adoption proceeding in Utah and giving him 30 days to fully assert his rights under the state’s statute.
Ideally, an unwed father shouldn’t have to intervene, which would greatly shorten the process, said Erik Smith, an Ohio attorney who years ago engaged in his own custody battle. "You want to have timely registration and then get notice and a hearing right away," he said. "If you have to intervene, you’re too late already."
"It’s a bummer for everybody, in my opinion, mostly for the child and the contesting parent," he said. "Regardless of whether he or she, usually he, wins or loses, it’s a very stressful time and your anxiety is high. You know your child is getting older every day that goes by and you’re losing that experience. You miss that part of life. And if a child is taken out of a home at a later age … that’s hard on the child and the adoptive parents."
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