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(Courtesy Dayna Smith) John Wyatt, of Dumfries, Va., is trying to get custody of his daughter, Emma, who was given up for adoption to a Utah couple by the girl's mother without his consent. His mother, Jeri Wyatt, is helping her son try to gain custody.
Virginia father gets green light to seek damages in Utah adoption
Virginia » High court says he was misled about Baby Emma’s adoption in Utah.
First Published Apr 20 2012 04:31 pm • Last Updated Apr 20 2012 11:04 pm

The Supreme Court of Virginia on Friday gave new life to the legal battle over a child known as Baby Emma by ruling her father was "purposefully kept in the dark" about her Utah adoption and could argue in federal court that the proceedings interfered with his parental rights.

In a split decision, the justices said John Wyatt could pursue monetary damages in federal court for loss of companionship, mental anguish, loss of services and expenses incurred in his fight to recover his now 3-year-old daughter. Wyatt has a lawsuit pending in U.S. District Court for the Eastern District of Virginia against Mark McDermott, a Virginia attorney; A Act of Love, a Utah adoption agency; Lorraine Moon, the agency employee who facilitated the adoption; Larry Jenkins, a Utah attorney; and the adoptive parents.

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The federal court had asked the Virginia Supreme Court to settle two questions: whether the commonwealth recognized the right to pursue a tort action for interference with paternal rights and, if so, what burden of proof must be met and what elements constitute a cause of action.

The decision is the first to address such questions in Virginia, the high court noted.

The majority found that while Virginia statutes do not specifically recognize "tortious interference with parental rights," such a cause of action has existed in common law since 1607 and "continues to exist today."

Failure to recognize that claim would "leave a substantial gap in the legal protection afforded to the parent-child relationship," the majority wrote. It said an "overwhelming majority" of courts in "sister states" have reached similar conclusions.

"It is both astonishing and profoundly disturbing that in this case, a biological mother and her parents, with the aid of two licensed attorneys and an adoption agency, could intentionally act to prevent a biological father — who is in no way alleged to be an unfit parent — from legally establishing his parental rights and gaining custody of a child whom the mother did not want to keep, and that this father would have no recourse in the law," the majority said.

It said the facts of the case showed that the defendants went to "great lengths to disguise their agenda from the biological father, including preventing notice of his daughter’s birth and hiding their intent to have an immediate out-of-state adoption, in order to prevent the legal establishment of his own parental rights."

The court also found that Wyatt must meet a preponderance of the evidence standard, a less rigorous standard, in proving "tangible and intangible damages" caused by the "unauthorized" adoption. However, under a tort action, Wyatt is not entitled to seek an injunction or new custody orders involving his child.

There were two dissenting opinions in the 4-3 decision. In one dissent, a justice said that while "the facts as pled by Wyatt are unquestionably disturbing," there was no cause of action under Virginia law and the majority was engaging in "legislating public policy in Virginia through judicial pronouncement."


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The majority, however, said it hoped that threat of civil action would help "deter third parties such as attorneys and adoption agencies from engaging in the sort of actions alleged to have taken place."

"It means that if third parties interfere with a person’s normal parental rights, you can sue and hold them liable," said Philip Hirschkop, Wyatt’s attorney. He said the federal case is set for trial in mid-July.

Wyatt and his then-girlfriend Emily Colleen Fahland were dating when she became pregnant. He accompanied Fahland to doctor appointments, and she repeatedly assured him they would raise the child together.

However, at the behest of her parents, Fahland also met with McDermott, an adoption attorney. He instructed Fahland to falsely indicate on adoption paperwork that she did not know Wyatt’s address, according to the court opinion. At McDermott’s urging, she also made other false statements to Wyatt so that he "would not take steps to secure his parental rights and prevent the adoption."

Fahland gave birth in Virginia on Feb. 10, 2009, and two days later relinquished her rights and custody of the baby to the adoptive couple, who traveled to Virginia to pick up the infant. On Feb. 18, Wyatt initiated a paternity action in Virginia and was ultimately awarded custody of his daughter. However, a Utah court subsequently found he had no standing to intervene and approved the adoption.

The Utah Supreme Court upheld that finding in July 2011, holding that Wyatt did not meet required deadlines for asserting his parental rights under Utah law. Also, the court found that he was barred from arguing that the federal Parental Kidnapping Prevention Act required Utah to follow a Virginia judge’s order granting him custody because he failed to raise that argument in the lower court.

brooke@sltrib.com



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