holding mama’s hand
courtesy of mazaletel
You already know that my parents have a little experience with adoption, but you might not know that Don’s dad does, too. He serves as a guardian ad litem for Miami-Dade county in Florida. A guardian ad litem is an individual appointed by a court to represent the interests of a child in a particular legal action or proceeding. In other words, let’s say there is a legal proceeding in which a child is an issue but is not either party actually involved in the action (divorce proceedings, custody arrangements, etc.). The parties involved have attorneys who protect their clients’ interests, but the child – who is not a part of the formal legal action - does not. Enter the guardian ad litem whose job it is to make sure that the court considers the best interests of a child in handing down its decision.
In his role as guardian ad litem, Don’s dad has worked on a few cases involving adoption - including one that I was reminded of recently when I read this article about a biological father whose two year-old daughter was placed at birth with a family in South Carolina.
A few weeks ago, the birth father was granted custody of the child even though the adoption had already been finalized in South Carolina. As a member of the Cherokee Nation, the birth father was able to point to a provision in the Indian Child Welfare Act that protects Native American families from being separated. An appellate court in South Carolina ruled that the Indian Child Welfare Act overruled South Carolina law in this case.
The adoptive family who raised the girl for two years is planning an appeal.
So, back to Don’s dad. A couple of years ago we were discussing a case we’d heard about where a family who had been fostering a child and hoping to adopt her was likely going to be denied because the birth father, who claimed no prior knowledge of the child’s existence, had turned up wanting to parent. Don’s dad explained to us the state’s position – which was that since the child was in foster care (the family was only hoping to have the chance to adopt her), since the birth father appeared to have no knowledge that the state had been given temporary custody of his daughter and since he appeared to be a fit parent, the birth father was likely to win custody. Don and I both recognized the terrible situation the court would face, though I think I was far more sympathetic to the birth father’s position than Don.
The potential adoptive family, Don argued, had been there for the baby since birth. One night of fun with the birth mother does not a father make. Fathers are made by showing up, by changing diapers and drying tears, by planning for the future and living every moment.
I can’t argue with any of that. I know as well as anyone that families are made in a lot of ways and biology is only part of the equation (and not even the biggest part in my opinion). On the other hand, if the birth father didn’t even know the child existed, and if he would have behaved differently had he been made aware, then shouldn’t he have the chance to parent his daughter? Or at least have the chance to be given consideration?
Situations like this have elements of sadness on every level. There is no way for both families to win. Someone is going to get custody, and the other side will likely not be a part of the child’s life going forward.
Take the case of the Native American child. Her birth father loves her and wants the chance to be her full-time dad. Her adoptive family loves her and they’ve spent two years nurturing and caring for her. The adoptive family is all the child has ever known, but the birth father claims to have been fighting for custody since shortly after the child’s birth.
So – it’s sad for the birth father who didn’t want to place, and it’s sad for the adoptive family who consider the girl their own child. But, of course, it’s really sad for the two-year old whose biological father and adoptive parents are fighting about where she should live and who she should be.
I don’t know the specifics of either case, and even if I did I would have a hard time issuing a declaration about the right solution for either. As a casual observer I can only offer the opinion that there’s a lot of heartbreak happening in both of these cases. I can say with confidence, that we’re so lucky situations like this are extremely rare.