The Plight of Baby Emma


The Washington Post's Jerry Markon reports on the sad, infuriating case of "Baby Emma," a little girl born in Woodbridge, Virginia last year. Emma's mother, 20-year-old Emily Colleen Fahland, didn't want the child, and gave her up to a Utah adoption agency. The child was adopted by Utah couple Thomas and Chandra Zarembinski, who have raised her for the last 14 months.

The problem is that Emma's father, 20-year-old John Wyatt, wanted to raise the child. Even Fahland concedes he has never wavered from that. The article mentions no allegation that Wyatt is abusive or ill-fit to be a parent. Yet when she went into labor Fahland cut off contact with Wyatt. The hospital where Emma was born refused to even tell Wyatt whether Fahland had been admitted. The next day, Fahland and the child moved to a motel, where she handed Emma off to the adoption agency.

After learning of Emma's birth (from his lawyer), Wyatt filed custody papers within the time allotted to him by Virginia law. He also filed five days before the Zermbinskis filed adoption papers. That didn't matter. A Utah court, citing that state's adoption laws that favor married couples over single parents, simply ignored a Virginia court's ruling that Wyatt be given custody of his child. Now the Zarembinskis' lawyer argues—apparently with a straight face—that it's in Emma's best interest to stay with the couple, because they "are the only parents this child has ever known."

It isn't clear from the article if the Zarembinskis definitely knew before they adopted Emma that the child's father was claiming custody. But they certainly knew shortly after, and they continued to fight to keep her from her biological parent anyway. It's hard to feel any pity for them. A kidnapper could make the same argument their attorney is making, provided he was able to elude authorities for a sufficiently long period of time.

Speaking of which, I'm trying to figure out how Fahland—and possibly the Utah adoption agency—aren't guilty of kidnapping. I'll concede that I know very little about family law, and perhaps the law is as perverse here as it can be in other areas. But Wyatt is the child's father. Once Fahland gave up her custody rights, one would think that full custody rights reverted to Wyatt. From the article, Fahland and the adoption agency appear to have conspired to make the handoff before Wyatt was even aware his child had been born, and before he could prevent the adoption from happening. If the roles had been reversed, and Wyatt had swiped the kid out of the nursery and rushed her off to an out-of-state adoption agency to, say, prevent himself from having to pay child support, is there any doubt he'd be charged with kidnapping?

Strangely, New York Times "Motherlode" blogger Lisa Balkin presents this case as if it's ethically complicated, even implying that the child should remain with the Zarembinskis.

Who do you think should have custody of "Baby Emma"? The stable married couple who are, as their lawyer says, "the only parents this child has ever known," or the single 21-year-old nightclub worker who has never seen her, though he certainly has tried?

I guess I'm not seeing the moral complexity, here. And I'm not sure what Wyatt's job or marital status have to do with his parental rights. The child should be returned to her father. Fahland and the adoption agency should pay Wyatt's legal bills. And in a just world, Fahland would be paying Wyatt child support for the next 18 years.

A Utah Court of Appeals will hear the case at the end of next month.


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  1. Balkin isn’t even trying to sound objective there, is she?

  2. There was a similar case in Chicago in the early 90s. It was a clusterf*ck. The media got totally played by the adoptive parents.

  3. First confirm that he is the father (DNA) and then, yes, wholeheartedly agree.

    1. It does not sound like there is any question whatsoever on any side as to whether or not he is the father.

  4. And in a just world, Fahland would be paying Wyatt child support for the next 18 years.
    Pretty damn funny.Try out that “dead beat Mom” line on a feminist some time.

    1. So what, life isn’t fair.

    2. So what, life isn’t fair.

    3. from NYTs coments:

      The birthmom has the uterus therefore it was her decision to make. She carried her child and made the best decision for her. The father’s choice was made when he chose not to use a condom.
      Madison, Wisconsin

      1. Wonder if “Madison, Wisconsin” thinks that separation of responsibilities extends to financial care of the child?

      2. Huh? The father’s choice not to use a condom was a choice to become a father, wasn’t it?

        1. “Huh? The father’s choice not to use a condom was a choice to become a father, wasn’t it?”
          First of all we don’t know if he didn’t use a condom, secondly we don’t know what assurances he had she was on birth control and thirdly if that’s his choice to become a father it’s her choice to become a mother. If you’re going to run the “keep it in your pants” line be aware it destroys the right to abort.

    4. You seem to be under the impression feminists believe deadbeat moms don’t exist. We know they do. Deadbeat dads, however, are much more common and are (shockingly!!) higher on the priority list for feminists. In a fair world, any and all deadbeats would be held accountable.

      The whole situation is ugly and unfortunate, no doubt about it, but the natural father’s rights should trump the adoptive family’s. Sadly, I see a court deciding his marital status, age and occupation make him an “unsuitable” parent by comparison.

      1. So to paraphrase it’s “If our son’s get custody screw them and their kids, it’s only our daughters and their kids we care about.”

        Also interesting how you failed to mention sex in the list of deciding factors for the court.

      2. That “Dead beat fathers” are more common is partly because ? percent of the time children are not given to their fathers. If this figure was reversed and mother’s were required to pay support at the same levels as fathers are currently, then you would see huge numbers of “dead beat mom’s”

    5. That is soooo true and probably happen… in a non feminist world but we all know which world we live in.

  5. Daily nut kick from Balko…excellent way to start a tuesday.


  6. You are quite right Radley, this seems like a no-brainer. Posing the question the way the NYT blogger does is just infurating. Parents have rights and it is not the court’s job to determine who the better parent is, but who has the relevant rights (absent clear evidence of abuse).

    Although children aren’t property, parents have rights to them that work much like property rights. We wouldn’t find it to be the right framing to ask judges to decide which of two parties to a property dispute would do a better job making the property valuable. The judge’s job is to determine who has the legitimate rights.

    No difference here. Back to the dad. He has the parental rights and until he abdicated them, the child is his.

    1. We wouldn’t find it to be the right framing to ask judges to decide which of two parties to a property dispute would do a better job making the property valuable.

      The 5 Kelo justices disagree.

      1. touche’ although I did say “we” kimosabe.

        1. Depends how small “we” means. If you mean you and me, then yeah.

      2. Case in point on how corrupt and abusable such determinations can be.

        If the state gets into the business of deciding rights based on who would make “better use” of a piece of land, or make a “better patent”, that inevitably is going to favor priviledged people. A guy with no capital can’t develop land as well as someone who does, but taking the land at some below-market rate denies him the ability to build his capital up.

        Similarly, a poor person may not be able to provide as good an education, but that doesn’t mean we should transfer poor children to rich infertile couple.

  7. It’s obvious Wyatt wants to be a single dad so he can pick up chicks…

    1. I’ve tried. It doesn’t work. Not even at the bar.

  8. I want to be consistent. The state of Utah should grant Emma Utah citizenship then return her to her father.

  9. There was a similar case involving an Iowa father that took years to resolve. I can’t remember the name so I can’t google for details.

    But I think the adopting couple was from Wisconsin. The Iowa father had to go all the way to the Iowa Supreme Court to gain lawful custody and then had to go to the Wisconsin Supreme Court to get the adopting couple to hand over the child.

    The last report was the child was doing just fine here in Iowa.

    1. Baby Jessica — Schmidt (Iowa) versus Deboer (Michigan) 1993

  10. I honestly wouldn’t have a problem with the mother being solely able to determine what should be done with the child if fathers weren’t automatically on the hook for child support. The way the law is set up so that fathers have all financial responsibility and no decision making power is no good.

    1. Life isn’t fair, men always never pay to wommin and that isn’t fair either.

      1. Yes, because the best way to deal with injustice is to reciprocate with more injustice.

        And I got $1,500 a month x 12 years that says your wrong about “ always never pay..”

        1. They usually don’t. Life is not fair.

          1. *citation needed

          2. They usually do, and those that don’t usually can’t.

            1. Can’t is not an excuse, they need to find some way of coming up with the money, otherwise it isn’t fair to deprive the children.

              1. Than they need to go to jail, period, no questions asked, you don’t pay, you go to jail.

                1. My body, my choice. Now with half the responsibility. Pick some up at your local courthouse today. (males need not apply)

                2. Yes, because if a guy loses his job through no fault of his own (which we all know never happens), the best thing for everyone is for him to rot in jail.

                3. Yeah, they’ll pay a hell of a lot of child support in prison.

              2. Fuck you. My husband’s ex uses the child support he pays to pay her car payment. Bullshit it’s depriving the child. Half the women who demand support are fucking assholes who are basically looking to purchase their toys on someone else’s dime.

              3. “Can’t” isn’t an excuse? LOL… what if they are unemployed? Or in the hospital? And as far as going to jail over it, I thought we got rid of debtor’s prisons 100 years ago?

          3. I’m detecting a theme in your comments.

    2. *nods head*

      Father’s that haven’t had their custodial rights removed for cause should have equal say in their children’s future as mothers do. This was a clear violation of the father’s rights and any judge that doesn’t respect those rights should be trown off the bench.

      1. No, women have the right to choose.

        1. And, of course, Life’s Not Fair!!1!(tm)

            1. -100 Let her play!

        2. I’ll see your strawfetus and raise you a real child.

        3. Exactly.

          They have the right to choose to close their legs.

      2. Single unwed fathers do not start out wiht parental rights, legally speaking. Sadly they must go to the court and establish those rights. In a just system this would not be the case.

    3. I have to disagree, using one set of bad laws to justify another set of bad laws makes no sense. Also to a large extent the “child support” issue is a societal issue as much as a legal one.

  11. Total clusterf*ck.

    Based on the post, Wyatt has definitely been wronged by Fahland, the Utah adoption agency, the Utah state court and possibly the Zarembinskis.

    TBS, the prime issue, overriding all others, is “What is best for baby Emma?” The child is not property.

    If, in light of all that has occured, she would be better off with Wyatt, then she should go to him. If it is the Zarembinskis who would be better parents, she should stay with them.

    How Wyatt has been treated by the system and Fahland is unconsionable, but the past wrongs should not be allowed to influence the decision as to what is best for the child.

    1. I don’t believe what’s best foe the baby has anything to do with this.

      1. I know it is ironic to hear a libertarian say “it’s for the children”, but sometimes it happens. 🙂

        1. Not in this case. The father has a clear, legal parental right that has been violated. The child isn’t property, but the father has rights and judges do not get to play god and decide what’s best for the child when the law is as clear as it is in this case.

          In addition, this child is young enough and children are resiliant enough that going back to her father, and there’s no evidence he is incapable of caring for her, will not cause her any lasting damage.

        2. I don’t know that I trust a judge to properly be able to assess. Beyond clear and obvious danger (i.e. the father is a convicted child molestor), it should not be a case of ‘who do we think would be a better parent’. It should be just a simple review seeing who lawfully should have custody. How do you decide? Who is wealthier? Who has the better job? Who has more extended family to help support?

          1. I know I don’t trust the judge. By definition (nearly), the judge is a lawyer. Therefore, the man’s oath requires him to side with whomever is paying him.

        3. Dude, you know I respect you and all, but this is WAY wrong in this case. I’d have some sympathy for this if the child had been there for months before the father tried to do anything. But he filed for custody nearly a week BEFORE the adoption was filed. Barring a serious allegation that he is unfit, which is not just absent in the coverage I’ve seen, but directly refuted, including by a Virginia judge, the kid should have been back with the father as soon as Utah found out about the motion in Virginia.

          That there was any hemming and hawing about this at all was worst for the child. Continuing this battle is not just bad for the child, it’s disastrous for the rule of law.

          If I were the state of Virginia, I would immediately cease to enforce all requests from the State of Utah until Utah returns Emma to Wyatt’s custody. There’s a right and a wrong in this case, and Fahland, the Zarembenskis, Utah, and “A Act of Love”[sic]* are the Bad Guys, and John Wyatt, Judge Daltan, and the state of Virginia are the Good Guys.

          What’s best for this child and every newborn in America is for Utah to be shown that they need to obey the fucking laws of the states where children are born.

          * Shouldn’t an agency that deals with something as delicate as adoption have the attention to detail necessary to use [rant]DECENT FUCKING ENGLISH in the FUCKING NAME?[/rant]

          1. Most places that use names like that do so for this reason:

            “A Act of Love” will show up at the top of the alphabetized Yellow Page listing.

            “An Act of Love” will show up further down.

            1. Who the fuck uses yellowpages anymore? Anyone who can’t use either google or one of the online yellowpages is in no way fit for adoption. Alphabetical order is no way to run a country.

      2. What’s best for the children is that we maintain the rule of law.

    2. Heard the same fucking argument 17 years ago. It was bullshit then and it is bullshit now.

      The system cannot reward people who stomp all over the law and then beg for mercy because undoing their prior bad acts might harm the child.

      1. The system cannot reward people who stomp all over the law and then beg for mercy because undoing their prior bad acts might harm the child.
        Oh yeah? Watch me!

    3. TBS, the prime issue, overriding all others, is “What is best for baby Emma?” The child is not property.

      The problem is…is that that is the litmus being applied and so far all agencies have decided that regardless of Wyatts claim, the Zambraskis would be a better family. We can’t know whether Emma would be best raised by a 21 year night club worker or a “stable” family, because we can’t predict the future. All we can do is judge who has rights, who doesn’t and what should be done based on THAT evidence. The “best for…” formula is complete tripe.

    4. TBS, the prime issue, overriding all others, is “What is best for baby Emma?” The child is not property.

      So in the kidnapping hypothetical, you’re perfectly ok with the babies of the poor being kidnapped to give to stable middle-class parents?

      1. Even if the baby is property, the SCOTUS apparently thinks the government has the power to give it to the best owner.

    5. If parental rights are completely irrelevant and all that matters is what is right for the child, then why can’t any affluent couple who wants a child walk into any poor family’s house with a writ and take whatever child they want?

      1. Sounds like a winning campaign platform to me.

      2. To allow the parents to take the child home and bond with the child is just cruel. Better to place all newborns up for auction at birth.

      3. That’s exactly what I was thinking. The argument made by the adoptive parents is basically equivalent to the notion of using eminent domain to seize property for the benefit of another private citizen based on a projected increase in tax revenue. It was a bullshit argument in Kelo, and it’s bullshit here.

      4. Can’t they?

        1. Can’t they?

          I thought that’s how Madonna adopted that child from Malawi

      5. Well, all of this needs to take place after the baby has been placed outside the city walls for three days, to prove it’ll survive…

    6. Nope.

      The “best” thing for Elian Gonzalez would have been to have his US relatives raise him. Unfortunately for him, he had a legal, real and biological father who wanted him back. While I deplore Janet “SWAT” Reno sending armed agents in a raid to grab the boy, I agree that he should have been reunited with his father.

      Emma also has a real, legal and biological father who wants her back.

      That pesky parental rights* thing is not one to be ignored. Precedent is powerful stuff.

      * We can go on for days about parental responsibilities but I don’t see that as the issue here outside of possibly prosecuting Mom (along with the adoption agency) for fraud at the least.

      1. See my 2:08 post. I guess I was being too subtle with my Elian reference.

        1. I caught it. I just thought it needed some elaboration.

          1. I still wished pussy-Clinton had given him US citzenship before shipping him back. He will turn 18 next year.

            1. I’ll admit I was slow on that one.

              1. I couldnt pass up the chance to make a Utah citizenship joke.

                1. Damn you fake name.

                  Although, come to think of it, that might be good advice.

            2. Elian Gonzales doesnt have USA citizenship? I thought if a Cuban touches solid land they automatically get USA Citenzenship…

      2. The Elian case was complicated by the fact that reuniting him with his father entailed sending him back to live in a ruthless totalitarian dictatorship, and that his mother clearly intended for him and herself to seek asylum in the US. Had his mother survived the journey there is no way he would have been “reunited” with his father.

    7. Aresen is pointing to the actual legal standard in disputed custody cases.

      Also, fiscal well being is not the sole determining factor in “best interests” cases. That’s the point that “the rich will just steal babies from the poor!” hypotheticals seem to miss.

      1. So what? We can replace wealth with any standard you want to use instead.

        Can two married occupational therapists seize any handicapped child they see that they feel like adopting?

        Can two married gifted-child educators seize any genius children they stumble across?

        For any parent out there, and DEFINITELY for any single parent out there, I can find a better parent “for the child” if I look hard enough.

    8. If you are going to use the criteria “what is best for the baby” in this case then by extension this is the criteria that has to be used for every child born to an unwed mother from this day forward.
      This will quickly lead to the government sanctioned removal of every child born to a drug addicted mother (which may not be a bad idea on its face), followed soon after by the same standard being applied to unemployed/ low income mothers and working its way gradualy up the economic ladder.
      Eventually the same standards will be applied to married couples and all newborns will immediately become “wards of the state” using the excuse that it is “whats best for the children”.

    9. What if Thomas Zarembinski, instead of adopting the child, had broken into Wyatt’s home and stolen the baby, then was not caught for 14 months? Should he still get to keep the baby if he can show it’d be better for her?

    10. In what way could it possibly be better for Emma to be raised by people who knowingly stole her from a father that they KNEW (and they’ve acknowledged that in writing if I recall correctly) wanted her. They stole her from her father and they are kidnappers. It is unconscionable for anyone to attempt to claim that they somehow make “better” parents than the father who obeyed the law and followed all the the regulations in his and his daughter’s home state. The Zarembinskis may have some money but they lack the ethics and basic human decency to be “better” parents than the man who wanted his daughter and obeyed the law to obtain custody of her.

  12. The last decision he got to make was ejaculating inside of her. This should show he doesn’t have the judgment necessary to be a responsible parent.

    1. The last decision he got to make was ejaculating inside of her.

      No, that isn’t quite always a decision.

  13. How’d this end up being the Ladies’ Trolling Team thread? There’s one about boobs right down there. It has the word boobs on it.

    1. Even the power of boobs cannot deter the ladytrolls. Mightily reducing and and all arguments to “a woman’s right to choooooose!”

    2. I particularly like the “life isn’t fair” comments, given the reaction if anyone says that in relation to, say, health care. Or income disparity. Apparently life is not fair, but it should be MADE FAIR by which we mean it should be made so that women win.

    3. ?, reading that one too but sometimes, I just like to watch 😉

  14. Why is this in Utah state court rather than federal court (or at the very least Virginia)? Isn’t the whole point of the federal system to deal with interstate issues like this? It’s like people decided to use the federal government for things it’s not supposed to handle and not use it for things it is supposed to handle.

    1. It’s in a Utah court because the child is physically in the custody of Utah parents. There is no federal law regulating interstate adoption; there is an Interstate Compact that is supposed to bridge sovereign state systems, but clearly that isn’t working here.

      Under Child/Family law, the Utah courts assume jurisdiction because the child was legally adopted in that state [hold your flames until the end, please]. Whether we like it or not, the courts are supposed to use the “best interest of the child” standard to determine the next action. Of course, the notion that a judge can determine the “best interest” is a fiction. But it is a fiction informed by a set of psychological theories from Anna Freud and Joseph Goldstein that have proven to be intractable.

      This is not to suggest that that the biological father would be a bad caregiver; nor do I imply that he hasn’t been harmed by this process. I hope he sues the hospital, birth mother, and adoption agency into oblivion. But that won’t necessarily get his kid back. The courts have a legal obligation to think hard about what is in Baby Emma’s best interest; a powerful argument can be made to not remove her from the only family she’s ever known.

      1. The Adoption, written by Kafka, presented to you courtesy of the US legal system.

      2. Thank you for the unusually well reasoned response.


        1. If the adoption was legal, on what grounds would the father have to sue anyone?

        2. If there was fraud or some other ground for a suit, how can the adoption be legal?

        1. Since the father had not given up his parental rights, the adoption is not legal. Or at least shouldn’t be.

      3. a powerful argument can be made to not remove her from the only family she’s ever known.

        Which applies to essentially any baby stolen at birth.

      4. Actually, a federal court might find that Utah does NOT have jurisdiction over this, but that would require him losing in the state court system before he could appeal to a federal court. Because the child was born in Virginia, to parents from Virginia, and the father filed for custody under Virginia law prior to any adoption request being filed in Utah, the following federal law may apply:…..cement_Act

      5. You are wrong, Corey. The Zambrenskis violated Federal law by removing Emma from Virginia. They actually ARE guilty of kidnapping based on federal law.

  15. It isn’t clear from the article if the Zarembinskis definitely knew before they adopted Emma that the child’s father was claiming custody. But they certainly knew shortly after, and they continued to fight to keep her from her biological parent anyway. It’s hard to feel any pity for them.

    As a recent adoptive parent who has had to rely on the birth mother for any information about the birth father (where else am i supposed to learn about him? the kid wasn’t born with his bio dad’s facebook page stamped on him), i guess i kind of sympathize.

    The adoptive parents relied in good faith on an agreement with the birth mother, the only biological parent they encountered prior to the adoption. Then, after they first learned of a competing claim, they relied on a court judgment from their state. Now, after 14 months of being sole providers, we’re supposed to join balko in saying “Fuck you, adoptive parents?”

    1. Now, after 14 months of being sole providers, we’re supposed to join balko in saying “Fuck you, adoptive parents?”


      1. Speaking as a father, yes. I don’t care how well-meaning you are – You have no right to keep his child away from him.

        1. When I bought my house, we had to pay for a deed search to make sure the house was owned free and clear and that no outstanding liens were placed on it.

          Are you trying to tell me that adoption agencies should have a lower standard of care than a mortgage company?

          To echo what others have said: to hell with the adopting couple. They paids their money and took their chances without doing due diligence. Wyatt has clear paternal rights that he never surrendered and were, in fact, taken from him through fraud.

    2. According to Wyatt’s attorney, the adoptive parents knew that the father hadn’t consented to the adoption and could assert his rights. He filed his custody petition before they did. They still chose to go on, knowing what both of those facts together could mean.

    3. You say “we are very sorry, but this child belongs to the rightful parent”

    4. If “rule of law” is to be upheld…YES

      Its a tragic situation for them, but unless we’re going to throw out all the years of precedence relating to a father’s responsibility of his child, we have to assume he had some claim over the child and that claim was violated by the mother.

      1. Its a tragic situation for them, but unless we’re going to throw out all the years of precedence relating to a father’s responsibility of his child

        His responsibility is to provide financial support, he has no rights except the right to not have sex and therefore not have a child.


        2. Your troll fu is weak.

        3. Life’s Not Fair(tm).

        4. Decide what you want, Sara. Do you want him to provide financial support, or to consent to allow the adoptive parents to keep the child? Because the two are mutually exclusive.

    5. Exactly. I can see it both ways, which means that to me it is HARDLY as clear cut as Radley alleges.

      And the whole case is another reminder why my wife and I adopted children from another country. Domestic adoptions always run these kinds of risks, resulting in the facile condemnations of people on either side who have of course never been through it.

      1. There are alot of risks from adopting unfortunately (mostly because a claim to a child is nebulous even with a signed contract), but that is not the case here. John did not sign, John was not excluded from his claim. In every instance he has been the one wronged.

    6. Sadly, yes.

    7. Balko said “it’s hard to feel any pity for them.”

      Even the bio dad’s lawyer isn’t that coldhearted (see below where he wrote: “This case is also heartbreaking for the adoptive parents and has to be difficult for them.”)

      The Zambreski’s relied in good faith on the advice of their attorneys, their state court, and their adoption agency. There is a way under Utah law for a biological father to assert rights. By all accounts, Wyatt didn’t do it. His attorney’s excuse (Hey, it’s really, really hard) may be true, but it belies the fact that Wyatt did not comply with the law.

      1. The father asserted his right in Virginia where the baby was born. What Utah says is meaningless.

      2. What?!?! The baby was John’s in Virginia. He did not consent to it leaving the state and his claim to the baby is in Virginia, not Utah. Read man, READ!!

      3. Anyone who would state that you can lose a right because, IN ANOTHER STATE FROM THE ONE WHERE YOU LIVE, someone set up a registry you needed to psychically know you had to register for, deserves a bullet in the head.

        Hey, you have a right to life, but if you fail to register at the registry I set up in Liberia, and fail to respond to the legal notice I put in a weekly newspaper in Beijing, you waive your right to life and I get to shoot you in the head. How’s that?

        1. or get your house bull-dozed…maybe even your planet!

          1. Prostetnic Vogon Jeltz, you are an officious bastard, sir!

      4. You are apparently ignoring the fact that Wyatt DID comply with Virginia law — you know, where the child was born and resided until she was kidnapped the next day? — and that Utah law has nothing to do with it.

    8. Actually the adoptive kidnappers admitted in writing that they knew and were informed by the mother that John Wyatt wanted to raise his daughter. You may sympathise but the fact is the Zambrenskis knew they were stealing this child from an involved and committed father. They knew who he was and knowingly acted to keep his infant daughter from him. The only good I can see from this is if it leads to the Federal Government finally ruling that Utah’s adoption laws violate federal guidelines and protects all the other Emmas out there than Jenkins is trying to steal and sell to the highest bidder.

  16. Wyatt’s lawyer filled in a few more facts in the comments to that NY Times blog post. The baby should be returned to her dad. Without any doubt.

    C+P of the blog reply from the attorney below:

    I am an adoption lawyer representing John in Virginia. My goal is to ensure that the facts are correctly brought forth in this case.

    John and Colleen have known each other since 2nd grade. They have dated since middle school. He was there for her during the pregnancy and went with her to every doctor’s appointment since her second month of pregnancy. He talked to her or saw her almost everyday during the pregnancy up until about 11 hours prioir to her giving birth where they talked of raising their baby together. John offered to marry Colleen many times during the pregnancy. Since their baby’s birth, they still talk and see each other but their relationship is strained. Even today John told me he loves Colleen. Neither John nor Colleen have ever been to Utah.

    There has never been any question as to John’s paternity. Colleen signed an Affidavit given to the adoption agency stating under oath that John was the father. When John claimed to be the father in filing for custody, no one ever challenged that claim. John is on Baby Emma’s birth certificate as a result of Colleen and John’s paternity affidavits. The Virginia court ruled he was the father.

    In a questionaire Colleen gave the adoption agency, she explained that John wanted to raise the child. She asked that someone talk to John. No one ever did. Colleen’s original attorney (hired by ?) responded to John’s custody attorney when the baby was 4 days old and said John would only be able to see his child if he signed away his parental rights.

    John believes that Colleen’s parents and others involved manipulated Colleen into placing the child. Our parents are the most influential people in our lives. Parents want to do what they think is best for their child. It is a difficult choice between an unplanned parenthood and the orderly completion of your educational goals.

    For John, fatherhood is something he has given a lot of thought. John’s father passed when he was 10 and he reflected over the years as to what type of a father he would become.

    There was an independent evaluation done by a Virginia adoption agency to assist the Virginia Court in determine John’s fitness as a father. The social worker and the Court found John a fit father. The court evaluated John’s ideas on the health, education and welfare of the child and found that John had a well thougth out plan.

    One blog worries how adoptive parents can sleep at night. This case is not a threat to adoptions. We all want children to be in a secure loving home. Even after all John has been through, he talked today about how important it is to have a family and for a childless couple, adoption may be their only way. This case is not about attacking or destroying adoptions. It is about one man who was there throughout the pregnancy, who would rub his girlfriend’s belly and feel the baby kick, who would talk to the baby and who would go to the doctor’s to hear his child’s heartbeat. He was deprived of his child.

    This case is also heartbreaking for the adoptive parents and has to be difficult for them. We do not know what they knew about John before they took the child, but one of the documents that was revealed during discovery was an Affidavit they signed stating that they knew John had not consented to the adoption and that he had rights and could get his child.

    This case is also about a procedure in Utah that makes it nearly impossible for an unmarried father to have any rights in an adoption. A legal procedure has to be fair and balanced, not established to deprive a person of their Constitutional rights. Utah has a Putative Father Registry which is a state run data bank where birh fathers can register to maintain their rights. It is a two edge sword, a birth father can protect himself from the mother lying or failing to disclose his identity or the failure to register can be used to eliminate the need to track down an uninterested father. Virgina law requires the birth father be sent by certified mail a notice that there is an adoption plan and that if he wants to receive notice of the adoption he needs to register within 10 days. (John never received such a notice). Utah has no requirement that a birth father be notified about their Registry. The necessity of a father to register in Utah is a cruel joke used to deprive a birth father of his rights. Particularly for a young man who lives out of state and neither he nor the birth mother had ever been to Utah. Even I as an attorney spent two hours on line searching Utah’s website trying to figure out the state’s procedures to register or even how to contact them. After finding a telephone number for the Utah Registry from a couple of private organization websites, messages went into a voicemail and were never returned. I would challenge one of you readers to attempt to find Utah’s Putative Father Registry and report back to this blog your results.

    John appreciates your interest in Baby Emma and your comments posted.

    1. The fact that the adoptive parents knew he did not consent proves they are assholes. That they are not giving the child back to its rightful father after all this has gone public doubly proves it.

  17. A kidnapper could make the same argument their attorney is making, provided he was able to elude authorities for a sufficiently long period of time.

    I forgot to add: a kidnapper would never have a claim of right.

    The Zambreski’s do–they relied upon an attorney, an adoption agency in their state, an agreement with the only birth parent they knew of, a court judgment–you know, the kind of shit kidnappers do.

    1. The adoption is not legal. As soon as the Zambreskis became aware it was not legal, they became kidnappers.

      1. You’re jumping to a conclusion that the “adoption was not legal.” The Zambreskis can point to a court order that says it is.

        1. Which, if the judge had read law properly, should have referred this case to Virginia courts, as he had no jurisdiction over where the violation took place (in moving the baby from Virgnia without consent of the father)

        2. The father has custody rights.

          The baby was born in Virginia.

          The father did not consent to the adoption agency removing the child from Virginia.

          The adoption in Utah is moot — The courts will eventually rule this way.

          Any action by the adoptive parents is merely cruel.

          1. To the point and well said.

          2. Yeah, but the real assbite is that Baby Emma is in Utah, and the Utah courts may not see things that way, despite what Virginia courts may say.

            1. The Federal courts might. I’m still baffled why the FBI hasn’t been called in on this one; in Virginia, this could be viewed as kidnapping and it crossed state lines. Get Mulder and Scully to go get her.

          3. Yes, unless the legal system finds some rationale to completely ignore how Wyatt’s rights were totally and apparently illegally subverted by the adoption process, then Wyatt’s going to get his kid eventually. Everyday the Zambreski’s stubbornly hold on to the child is more damaging to the day they are going to have to give the kid to it’s father. At this point the adoptive parents are abusing the kid.

    2. The Zambreski’s do–they relied upon an attorney, an adoption agency in their state, an agreement with the only birth parent they knew of, a court judgment–you know, the kind of shit kidnappers do.

      So what if the Zambreskis had adopted the child through an adoption agency, but it turned out that the adoption agency had unwittingly obtain the child from a kidnapper in the first place?

      Are you saying it would be perfectly fine so long as there were enough layers between them and the kidnapper?

      I certainly understand sympathy for the Zambreskis, to the extent that they thought that this was a lawful adoption with everyone’s consent.

      1. They signed an affidavit stating that they knew the father had not consented to the adoption, that he had rights and could get potential get his kid. They’re not exactly unwitting.

    3. I agree with you that it is very sad situation for them – most families who adopt have been trying to do so for many years before it finally happens. I get that there is a sense of desperation that they feel. However, the rule of law should prevail – perhaps they should have legal recourse againse the agency, their attornies and maybe even the courts, but the bottom line is that they screwed up. The father of the baby should not be the one to pay the penalty for the screw up… he IS the child’s father, and he should have custody.

  18. I certainly can’t fault the Zermbinskis for taking the child in the first place unless Fahland actually admitted to them that the father was interested in custody. And once they had her, I can’t really fault them for not wanting to give her up (it’s crap like this that’s the reason why the Mrs. and I are strongly considering getting an international baby).

    But as to how the Zermbinskis got her in the first place… goddamn idiocy. Whatever judge oversaw that case should have his own children taken from him.

    1. Fahland admitted that the father wanted his child in the adoption paperwork — so I suppose you CAN fault them now. They knew they were taking a baby from a loving and concerned parent and decided that their desire for a newborn of their own outweighed John Wyatt’s parental rights.

  19. If, in light of all that has occured, she would be better off with Wyatt, then she should go to him. If it is the Zarembinskis who would be better parents, she should stay with them.

    Well by that logic, anyone who wants a baby should just line up at the hospital door and take the next newborn whose biological parents are poorer than them.

    You may, in your thoughtless attitude, just assume that a 20-year-old male can’t raise a baby, but he is her father and he has the right to try.

    And “SugarFree”, guess what – she let him ejaculate inside her, so she’s at least equally irresponsible. And you’re a gender bigot.

    1. The dripping sarcasm of my comment just slipped by you, eh?

      1. No lube necessary! Sug, as an insane Brooklynite (but, I repeat myself) once yelled at me & my gentleman friend on the streets of lower Manhattan: “wear a condom! Don’t forget to wear a condom!”

        1. It is pretty good advice.

          1. She then asked me to buy her a hotdog, so go ahead and throw that into the whole, slippery mess as you see fit.

            1. That’s a really dirty story, if you think about it.

            2. Throw that into the slippery messy hole?

    2. He is responsible for financial payment, that is it, it is her right to choose what happens, not his.

      1. Real feminists are quite capable of being stupid on their own, they don’t need simple-minded strawtrolling.

        1. What ^SF^ said

      2. Don’t forget, Patriarchs, Life’s Not Fair(tm).

    3. Stick around, Sugarfree might pen a limerick for you.

      1. SugarFree posted posts so dryly,
        Hiding his real meanings so slyly.
        But he ran afoul of Stacy,
        Who took his japes prima facie.
        Maybe he should have included a smiley.

        1. Imagery: 7:10
          Themes: 8:10
          Meter: 3:10
          Use of a Limerick: 10:10

          Total Score: 28:40

          But you know the French and Russian judges are just going to give it to him.

  20. Unfortunately most states have crappy adoption laws. I have heard that Indiana has about the best adoption laws in the country, and I would agree based on my experience. For one thing, the court in Indiana requires that the birth parents have rights until those rights are terminated by the court, and that a reasonable effort should be made to find the birth father.

  21. The Zarembinskis are the only parents Baby Emma has ever known, so it’s in her best interest to remain with them. But since Wyatt signed an affidavit stating he is the biological father, he is forced to pay child support to the Zarembinskis.

    It’s a win-win for TEH BABY EMMA!

  22. Who knew there were so many libertarian Helen Lovejoys around?

    Folks, kids are not nearly as delicate and fragile as you think. Baby Emma will survive going to her legal father just fine. Once you open the door to judges allocating children like Oreos in a pre-school, you are giving the state immense power to violate long-standing constitutional rights of parents.

    The parental rights cases of the 1920s are some of the few Lochner era cases that remain good law and serve as precent for other good substantive due process decisions since. Libertarians should not be in the business of taking those lightly.

    1. Judges are already asked to allocate children like Oreo’s. The only thing is, that in this case, judges defer to current custody if “that is what’s best for the child”. I don’t agree with that and I believe it is a poor precedent to uphold, especially since father’s are frequently held to a completely different standard than mothers. Oh, and if Fahland had not told Wyatt about the pregnancy, gone on to have the child and raise it by herself, she could have come back many years later and sued Wyatt successfully for child support. How messed up is that?

      1. Judges do not defer to “current custody” or “the best interest of the child” if the claim is a clear case of someone else having the parental right. That was my whole point. Not just that they shouldn’t, but that they don’t. You might read O’Connor’s decision in Troxel v Granville to see this point more clearly.

        1. Then I expect this ruling to be overruled as Wyatt has clear parental right. Now he may not be “the best for emma” but he has the clearest rights. So argue one thing or the other. You can’t have both necessarily.

  23. I’ve got a friend who’s wife cheated and had another man’s baby. My friend is now paying child support to the ex-wife and biological father who are now together.

    1. I’m interested to understand how that came to be unless he originally accepted parentage of the child. At that point, I see how a judge would have ruled that he would have had to provide child support. Its kafkaesque, but more understandable. Now, if he proved the child wasn’t his originally and divorced her promptly, then he might have had a case.

      1. Many states have laws where any child born during wedlock is automatically the husband’s child. Not even DNA has gotten around these laws.

        1. Now that’s a real punch to the scrotum

          1. A legal right to cuckhold, if you will. Those horns are court-ordered.

        2. and there is reason 1023 for never getting married. Thanks I will add it to my extensive list.

  24. I wonder what Baby Emma(tm) will say when she’s 13, Googles her name, and finds out that she has a biological father who wanted to raise her.

    This is fucking psychotic.

  25. I hope that upon her eighteenth b’day that she walks out of the Zarembinskis house and never looks back.

    1. I think it would be best to wish Emma a happy childhood regardless of where she ends up, but Wyatt should get atleast one crotch kick to the judge in Utah that decided against him.

      1. And at the Zarembenskis. They knew he hadn’t consented at the time of the adoption, and then fought tooth and nail when they found out that he was seeking custody, even knowing that he’d started filing BEFORE their adoption was filed. Fucking unconscionable. I sympathize with their plight at the time they found out he was seeking custody, but their actions since then have been reprehensible.

        1. I haven’t even read the article, but I just know the Z’s are zealous Mormons who want to keep Emma’s poor soul from being corrupted by non-Mormon ways.

          If I’m wrong, I’ll return and apologize.

          1. The “A Act Of Bad Grammar” adoption agency is a Mormon organization. So while there’s a possibility that’s not the case, there’s sufficient evidence to make your guess a reasonable assumption.

            No apology will be necessary, even if you weren’t to be borne out by further facts coming to light.

            1. If they are LDS, I don’t see why they wouldn’t have gone through LDS Social Services. The fee they charge is very reasonable…so I imagine they aren’t LDS…”A Act of love” might be run by people who are LDS, but it’s not run by the LDS Church. I hope J. Wyatt gets his baby back soon. I know this is heart breaking for him.

  26. I have occasional contact with adoption cases, never as an attorney for a party. My take:

    (1) I’m not sure if the birth mother declared a father at the birth of the child. Its not unusual, sadly, for the birth mother to not know and for there to be no father on the birth certificate. The fact that the hospital refused to recognize him as the father tells me she didn’t name him as the father.

    (2) If there was no “legal” father when the adoption agency took the baby and gave it to the adoptive parents, and/or when baby left the state, then its hard to see that anyone had done anything wrong at that point. From the article, it looks like this was the timing.

    (2) Its always risky to adopt a baby without releases from both biological parents. The Zambreskis knew of this risk, but went ahead anyway.

    (3) The Utah court (probably) screwed up when it disregarded the Virginia court order. But if the baby came into Utah legally (that is, Wyatt had not yet declared/been confirmed as the legal father at that point, as appears to be the case), the jurisdictional and choice of law issue isn’t crystal clear. On the whole, though, Wyatt was the recognized father before the Zambreskis filed for adoption, so he should probably win. I think.

    I find it interesting that people are pissed at everyone except the one person who unquestionably went out of her way to screw over Wyatt – the biological mother.

    1. I thought the father had a case against her but really for what purpose?

    2. I think you have some facts wrong. According to the father’s attorney, he was the recognized father, even to the point of being listed on the birth certificate.

    3. Oh, I think she should be in jail, along with the Utah judge, the adoption agency, the hospital administration and desk staff, and maybe the Zarembinskis.

      1. The problem with that is according to Wyatt’s attorney Wyatt is still in love with her and blames her family for how the adoption mess went down.

        I’m guessing the mother’s parents thought that if Wyatt got custody of the child then the mother would be raising the kid with him and not completing college. So they tried to expedite the adoption to get the child away from Wyatt as quickly as possible.

        Like many family law disputes the entire situation is completely FUBAR’ed.

        1. OK, so the entire Fahland clan needs to go in the pokey for a spell.

  27. I am pissed at the mom. I hope he gets his baby back and sues her for child support.

    The dumbass will probably marry her, though.

  28. I hope that upon her eighteenth b’day that she walks out of the Zarembinskis house and never looks back.

    Actually, at least in VA, she could do that when she’s 12.

    After reading more about this case elsewhere, the solution seems pretty clear – Wyatt should go to Utah, take baby Emma and bring her home where he’ll be protected by the VA court decision.

    1. Outside of a Supreme Court decision that will take years to get to, that will be his only option.

      1. Of course, I’m not recommending this option. Wyatt, do you hear me? I’m not recommending this option.

  29. Right, Stace, and you’re sure that Utah can’t prosecute him under local statutes, and know that the FBI would ignore a kidnapping report filed by the Zarembinskis. It’s not like Wyatt would be the first person the Zarembinskis would suspect, or anything.

    Stacy, IANAL, but I certainly know bad advice when I hear it. Suggest you go back to watching “The View” or whatever it was you did before coming here. Hit and Run is not kind to idiots.

    1. Hit and Run is not kind to idiots.

      Although you wouldn’t know it from the commentariat. We gots us some morans around here.

    2. Well, you do have ‘douche’ in your name – it’s hard to expand much upon that.

      Yes, I should have added that he should somehow accomplish this ‘kidnapping’ without harming anyone or breaking any other laws. But he is the biological father, is listed as such on the birth certificate. And upon being physically in Virginia, he is legally the child’s custodian. It’s hard to see what he could be in jeopardy for at that point, though he might not want to travel to Utah anymore.

      The issue is time. Baby Emma is already over a year old. By the time the Supreme Court straightens Utah out, if it does, it really will be too late to reasonably change custody. Which is what the Zambrinskis are banking on. They’re playing the whistle, not the rulebook. Wyatt should too.

      1. No, Stacy, the issue is that by attempting a kidnapping he exposes himself to even further legal risk: being arrested in Utah while in the act of recovering his child, being arrested in transit. And even if he manages to beat those criminal charges, he’d have to answer for “rash” behavior at the inevitable custody hearing.

        You seem to think that it’s a fairly trivial proposition for him to travel to Utah, and locate and recover his child “without harming anyone or breaking any other laws” and against the wishes of the Zarembinskis. That’s some serious stupid, Stacy.

        Also, you left out “getting caught.” The wikipedia article on AMBER Alerts states: Many law enforcement agencies have not used #2 as a criterion, resulting in many parental abductions triggering an Amber Alert where the child is not known or assumed to be at risk of serious injury or death.

        If you were familiar with Balko’s other work, you’d know that law enforcement tends to act first, and sort out the legality later, particularly when given the opportunity for conspicuous heroism.

  30. There has never been any question as to John’s paternity. Colleen signed an Affidavit given to the adoption agency stating under oath that John was the father.

    Good to know. I’m not sure when she gave that affidavit, which is a pretty important fact, in my opinion. If this was done as part of John’s paternity action after the baby left Virginia, then I think the waters are still pretty muddy on which state has jurisdiction.

    John is on Baby Emma’s birth certificate as a result of Colleen and John’s paternity affidavits.

    Again, this sounds to me like it was done after the baby left Virginia. The fact that the hospital didn’t recognize him as the father tells me she probably didn’t list him on the birth certificate when the baby was born. You can get birth certificates amended after the fact, you know.

    If the baby was brought in Utah legally (that is, no one had notice of Wyatt’s fatherhood when she entered the state) then I think you have a really messy choice of law and jurisdiction problem here, complicated by Utah’s argument that it has a public policy overriding its Full Faith and Credit obligations.

    1. Fahland and the baby spent Feb. 11 and 12 at the Fairfield Inn in Woodbridge along with an employee of A Act of Love, the Utah adoption agency, court documents show. Fahland signed the adoption consent forms Feb. 12 in the presence of that employee, Laraine Moon. The agency did not return telephone calls, and it is unclear how or when the agency got involved with Fahland.

      Court records show that the Zarembinskis cared for Emma at a hotel in Woodbridge before flying her to Utah.

      On Feb. 18, Wyatt sued for custody in Stafford County Juvenile and Domestic Relations District Court. His lawyer had officially learned of the baby from Fahland’s lawyer. “I found out I had a daughter through word-of-mouth,” Wyatt said.

      In his December order granting custody, Judge Gerald F. Daltan said that because Wyatt is Emma’s “acknowledged father” and had sought custody five days before the Zarembinskis filed adoption papers in Utah, Emma could not be adopted without his consent. He called Wyatt “a good and decent person” who is fit to raise Emma.

      But a judge in Utah granted the Zarembinskis temporary custody in August while the adoption proceeds. And the same judge ruled that Wyatt cannot object to the adoption, partly because he failed to move quickly enough to assert his parental rights under Virginia law — even though the Virginia judge said he had.

      So the adoption isn’t even complete yet !?!?!?!

    2. You can get birth certificates amended after the fact, you know.

      It’s really easy in Hawaii and Kenya.

  31. Really, all Wyatt’s attorney is doing is hammering away at an issue that isn’t in dispute (Wyatt is the father) as a way of not addressing the issues that are in dispute (jurisdiction and choice of law).

  32. In one case, the Utah Supreme Court last year ruled in favor of an unwed Wyoming mother who falsely told the father she miscarried, traveled to Utah to deliver the baby girl and put her up for adoption. “Utah risks becoming a magnet for those seeking to unfairly cut off opportunities for biological fathers to assert their rights to connection with their children,” Chief Justice Christine Durham wrote in dissent.

    Joan Hollinger, a University of California at Berkeley professor and a leading authority on adoption law, called Utah’s decisions in the Baby Emma case “outrageous” because Wyatt filed for custody in Virginia just eight days after Emma’s birth. Utah laws and court decisions, she said, “make it virtually impossible for an out-of-state father to prevent the adoption of an out-of-wedlock child when the mother is determined to go forward.”

    Looks like Utah Supreme Court has already established a precedent, but that was for a live-birth in Utah. However, it doesn’t take much imagination to see how they would probably find in Mr. Wyatt’s case. So, Wyatt’s only hope would be the US Supreme Court.

  33. There’s no question that the father will win the custody battle eventually. Fathers with much weaker cases have won in the past. If the adoptive parents really value this child’s best interests, they’ll give her up now instead of stalling for another year and making the separation even worse.

    I wrote a column on a similar case years ago for the San Jose Mercury News. The mother had lied to the adoption agency, claiming she didn’t know the father’s name. When the father realized he had a baby and proved paternity via DNA, the adoptive parents gave up the child.

    1. If the adoptive parents really value this child’s best interests, they’ll give her up now instead of stalling for another year and making the separation even worse.


      Uh, Joanne, if the Zarembinskis shared the view predominant here they wouldn’t have tried to adopt the child against the wishes of her father in the first place.

      Joan, meet Stacy; Stacy, Joan. Sure you two will find much in common. Oh, look, there’s my friend Sugar, gotta run!

  34. Not after 14 mos., but after some longer time, yeah, I’d grant custody to a kidnapper. Sometimes justice should be set aside in the interest of common sense. And wouldn’t it be cool to know that your parents loved you so much that they stole you and took chances with the law for years until the statute of Goodman (that’s me) took effect?

    1. OTOH, I just realized it could be like the Ransom of Red Chief. “We offered your parents a lot of money to take you back, but they wouldn’t, so we were stuck with you.” Bummer. But nobody has to know in a case like that. Unless the birth parents blackmail you, I guess.

    2. Of course the kid will probably be extremely interested in who the poor saps who’s child she actually was before the statute of Jackoff( that’s you) took effect.

    3. I don’t know any definition of “common sense” that includes what you advocate. You’re also going to have to bar prosecution for child kidnapping after a few years, since giving the kidnapper custody makes no sense if you’re just going to put them in jail immediately afterward.

      1. Of course no prosecution for kidnapping after a sufficient time. Some things are best swept under the rug. What good would it do anybody then to have such persons prosecuted?

        As to the “poor saps”, would you rather the victim be the poor sap? Nothing can make things up for the poor saps, so no attempt should be made.

  35. This does tell you that if you are a man who wants to take care of the children he father’s, then marry the woman before doing something that will make a baby.

    1. Why do you think that would matter? Modern family law is very clear that fathers have responsibilities, but not rights, at least none that a court must seriously consider. That this is even being litigated is proof of that.

  36. Very little of the commentary on this speaks to the rank sexism of the case. There’s no way that if Wyatt had handed over the baby the Utah court would rule against Fahland. Not that it would have gotten that far, the Zarembinskis wouldn’t have dared oppose Fahland’s request to return the child.

    Now that it’s A-OK in most states for mothers to abandon their children, Fahland could have eliminated Wyatt as a problem simply by abandoning the child at a hospital or police station and then telling the Zarembinskis where she left her. The government would have happily handed the child over and would have exerted no effort to find the child’s father.

  37. Speaking of what’s best for the child, I wonder how she’d feel in a couple years knowing she could have been with her biological father if only the courts weren’t such asses. They certainly have a very shortsighted view of “best interest.”

    1. Suppose you found out you were kidnapped. Would you have wanted to have gone to the original parents?

  38. Child kidnappings of this type are normal in Utah, where I live. It is past disgusting, but femi-nazis like Balkin seem to keep justifying it as goodness to kidnap. Laws don’t need to be changed – just enforced. Any ethical chief of police would just step in and take the child back – period – case over.

    But we have NO ethical police chiefs, prosecutors or judges in Utah, and most of the country for that matter.

  39. To help clarify some of the confusion, here’s the controlling law (mostly)! Since both natural parents are domiciled in Virginia, this case is not legally complicated. Mr. Wyatt, the actual father and the legal father, must prevail. Why? Because Utah law and standards, no matter how well-meaning, do not apply.
    Although people cringe when children are referred to as property, thinking of a child as real estate makes certain concepts easier to understand. When a child is born, there are four principal parties involved: 1) father; 2) mother; 3) child; 4) State of domicile of the parents.
    Although the mother carries the baby and gives birth, since the genetic material is roughly half his, theoretically each parent has an equal right to the child. Either is free to decide to raise their child, overriding the other’s wish for adoption, and the custodial parent can collect child support. Anachronistic or outmoded notions (that she should have kept her knickers on, or that they should have used birth control, or that he should have kept it in his pants, or that they should have married first) are not very useful, because realistically people have a propensity to engage in baby-making activities. Just ask John or Elizabeth Edwards (be a Tiger!).
    Whenever a child is born, that child has a “home state”. In this case, that state is indisputably VA (Virginia is for lovers), because that’s where the parents are domiciled. It doesn’t matter where the child was born (whether in Utah, or Paris, or on an airplane), or where the child was later taken, the home state still remains the same.
    This is where the property concept is illustrative. If your house is in VA, you can certainly sell it, or otherwise transfer it, to someone in Utah or anywhere. But the transaction must proceed in VA using VA law. The parties cannot collude amongst themselves to use Utah law or Texas law. The State maintains an interest in its property, and in its children that are domiciliaries. This is for the protection of all involved.
    In this case, Virginia is the only possible state that can make a valid and legal custody determination. Anything any other state (such as Utah) says is theoretically worthless and counterfeit, regardless of their laws or policy. Again, it’s irrelevant where the child is actually residing, or where the adoption agency is located. It doesn’t matter who filed what first or in which court. Only VA, using VA law, is controlling, and a VA court has authoritatively spoken.
    These concepts are well-established and have been confirmed by federal law, specifically the PKPA of 1980 (concerning home-state jurisdiction and required notice of proceedings to each parent), which Mr. Wyatt’s counsel cited in their arguments. In 1989, the U.S. Supreme Court also weighed in with Mississippi Choctaw. In that case, a couple agreed to temporarily leave their domicile in order to give birth and sign documents in another state to facilitate an adoption for their newborn twins, but the Supreme Court indicated that the state they traveled to still did not have jurisdiction, hence the adoption was void. Stare decisis commands adherence to this fundamental relationship between domicile and jurisdiction. In a clear-cut matter such as this, Utah cannot pretend or “decide” that they have jurisdiction; accordingly, Utah law carries no weight. As the Court presciently indicated precisely on point, “a state-law definition of domicile would likely spur the development of an adoption brokerage business.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 46 n.20 (1989).
    By the way, even though the PKPA (Parental Kidnapping Prevention Act) is federal law, it must be applied by the states, telling them which other states’ determinations deserve full faith and credit. You can’t make a federal case out of it.
    Because these laws are so clear, only a few cases like this attract public attention from time to time. Otherwise, prospective adoptive parents would choose the most advantageous state and it might lead to unscrupulous practices (I’ll buy you a hot fudge sundae if you agree to use Utah law!) such as baby selling.
    So the heart-rending difficulties usually arise when a rogue judge or court chooses to ignore clear precedent by applying their personal standard of what’s best, e.g., Mormon home. The mantra, of course, is best interests of the child. But this typically only applies in a custody contest between splitsville parents. For some of the reasons pointed out in the comments above, it is not normally used to decide between fit parents and a third party (relatives, friendly neighbor that all kids love, kidnapper, or those wanting to adopt).
    The Supreme Court has confirmed that we have a fundamental constitution right (the penumbra of a “liberty interest” in the 5th and 14th Amendments) to raise our own children (even if all the judges and psychologists in the land think another parent might be “better”), absent a compelling state interest (abuse/neglect). As it happens, most folks want to raise their own children, yet they seem content to want “best interests” for other people’s children. As mentioned in the comments above, the Supreme Court in Troxel essentially verified that a judge cannot substitute his or her idea of “what’s best” for that of a fit parent, so in that case a mother was the “decider” about when/where/if a grandparent could visit.
    So is it murky that one party here is “right” and another “wrong”? Despite many folks wanting to advocate both sides (or many sides) of any given issue, this is not a close case. From the facts on display, the father has a right to decide whether he wants to raise his child. If he prevails, as he must, then he and the mother can work out an arrangement or have a traditional custody/support fight in a Virginia family court. As to the Z’s, they were aware of the risk and they simply have no fundamental right to raise someone else’s child. The Utah Supreme Court will opine.
    So what should the father, and his counsel, do next? I’ll plan to address that later. Cheers,

  40. The child is his daughter, give her to him.

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