If I was to tell you that a biological mother could lie, steal and cheat her way into placing her child for adoption, without the knowledge and consent of the biological father, you would most likely tell me I’d lost my mind. “No!” you might exclaim. “That can’t happen in this country!” You would surely insist, “People have rights, even unmarried biological fathers.” They do.
The sad truth is that Utah, unique among all the states of this nation (in many different ways), has statutorily legalized fraud in the context of adoption, when the biological parents are not married. Under Utah Code Ann. 78B-6-106 (known as the “fraud immunity statute”), a biological mother can lie to the father, saying things like, “Oh, we are going to raise this child together, you don’t need to file a paternity action.” Or, she might even say, “I’m sorry to let you know that the baby died.” These are actual lies that biological mothers have told fathers in real cases. Utah courts, at least initially, found that even if those statements were blatantly false (i.e. in reality the birth mother always intended to place the child for adoption and to not co-parent with the father; and the baby is actually alive and was placed for adoption), the father’s rights to his child would be terminated unless he had “fully and strictly” complied with Utah’s statutory requirements for him to protect and preserve his rights, and perhaps most importantly, to prevent an adoption from taking place without his knowledge and consent. See Utah Code Ann. 78B-15-101 et seq. (Utah’s Uniform Parentage Act).
It defies logic, defies one’s sense of right and wrong, defies basic notions of due process and justice, for Utah’s laws to insulate not only a biological mother, but anyone working with her (e.g. attorneys, adoption agencies, social workers), from being required to return a fraudulently adopted child to his or her biological father. For this reason, many have come to refer to Utah Code Ann. 78B-6-106 as Utah’s “fraud immunity” statute. Without the knowledge and consent of a biological father, his child may be placed for adoption, even when accomplished through fraudulent, deceitful, and misleading statements by the biological mother and others who may be working with her. The father may sue the responsible parties for money damages, but he may never be able to get his child back – money in exchange for a human life – little consolation for fathers who genuinely love and care about their child.
Fathers should not despair, however, as there is tremendous momentum building for necessary changes to the law by amending the problematic statutes. In addition, current laws are being challenged as unconstitutional. Quick-acting fathers can protect their rights under Utah laws. (One example, Colby Nielsen, see: http://kutv.com/news/local/utah-dad-says-baby-taken-from-him-for-adoption-against-his-will). Some fathers have had to fight long drawn-out and expensive court battles to preserve their constitutional rights to have a relationship with their child. (Another example, Rob Manzanares, see: http://www.deseretnews.com/article/865635616/Fathers-7-year-fight-for-child-adopted-in-Utah-without-his-consent-moves-forward.html).
In short, the rights of biological parents, adoption standards and practices, statutory provisions that are supposed to govern the rights and responsibilities of all involved with adoptions and issues of paternity, are turbulent and at times uncharted waters that one is forced to navigate. Those involved with the process, upon being exposed to the issues are left asking themselves the not-so-rhetorical question: “Huh?” For these and many other reasons, all involved with paternity and adoption-related matters are well-advised to seek out competent legal counsel in all such matters. The statutorily mandated “full and strict” compliance standards that come into play in these cases carry participants, virtually at light speed, across a uniquely well-delineated boundary between the land of “counsel optional” and the land of “counsel required.”
What is a Living Will? Is it the same as a “Will” and why do I need them? Both documents, a Living Will and a Will, are important for different reasons, and it is important that when preparing them, you consult with an attorney to make sure that each is prepared according to the requirements of the state law. A Living Will and a Will are not the same document and should not be confused. A Living Will is a document that lets healthcare providers and the people making your medical decisions know what kind of medical treatment you would want, or not want, if you become unable to communicate, either due to a life-threatening injury or terminal illness. Many people are aware of the case of Terri Shiavo, a young woman who suffered from an illness that put her in a persistent vegetative state. Since she did not have a Living Will, she remained living in this state for 15 years while her family fought in court over whether continuing healthcare treatment should be provided. A Living Will could prevent this from happening since it is a legal document that sets out what life-sustaining measures you would want administered if you were to fall in to the same state. Provisions of a Living Will include whether or not to continue life support and whether or not to provide artificial nutrition and hydration if you are in an irreversible coma or a persistent vegetative state. You can also include any other healthcare provisions you would want honored if you were to fall critically ill and be unable to communicate. By creating a Living Will, you can take the pain and pressure away from loved ones who would have to make those difficult decisions should anything happen to you. Along with creating a Living Will, you should also consider creating a Medical Power of Attorney, which would appoint a person to be your “agent,” thereby allowing that person to make medical decisions for you when you are unable to communicate. A Will, on the other hand, is a legal document that comes into effect after you pass away and describes how you want your assets distributed.
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