Legal researchers have advised against legal custody arrangements between prospective adoptive parents and natural fathers.1 By legal custody, I mean all three parties having parental rights, but where the prospective adoptive parents keep custody and the natural father gets visitation The option is sometimes proposed in contested adoptions. Courts have opined that the child will suffer irreparable confusion, uncertainty, and embarrassment growing up with two legal fathers. As one U. S. Supreme Court justice, and two state courts, reasoned:
- "‘The Court believes that the existence of two (2) ‘fathers' as male authority figures will confuse the child and be counterproductive to her best interests.... Confusion, uncertainty, and embarrassment to the child would likely result from a court order[ing] that appellant, who claims to be Z.'s biological father, [be] entitled to visitation against the wishes of the mother."2
While the legal custody alternative is not a cure-all, or even workable in all situations, the fear that a child will be harmed by having “two fathers as male authority figures” is exaggerated. I know this from experience.
In 1993, I sought to overturn my son’s adoption. Because my son was a year and a half old when the termination hearing commenced, the adoptive parents and I entered an agreement. They got custody of my son, while I got liberal visitation. The natural mother’s parental rights stayed terminated.
The litigation before then was extremely combative. Although the court ordered visitation during the proceedings, the prospective adoptive parents were adamant about terminating my rights. Relations were further strained due to what I alleged were later misrepresentations about what happened during the visitation. Anything positive between my son and I during the visitation went unmentioned, while anything remotely negative was slanted, exaggerated, or made up. Only after much time had passed, and the court apparently saw that I would not quit, did the parties reach the agreement.
But we succeeded in managing the confusion my son experienced in having “two dads.” The motivation was simple. Despite our private wishes, we all wanted our son to be happy. No normal person wants to raise a permanently confused child.
The Supreme Court’s contention also splits hairs. Practically, the two-dad situation occurs in some divorces, where the child sees the step-dad and the natural dad as separate father figures, and where the custodial, natural mother complies with visitation because a court order tells her to. Courts do not decide routinely in those cases that one of the two male figures needs to be kept from the child.
The ultimate truth is this: The child will experience some uncertainty, confusion, and embarrassment But where the parties act maturely, its effect will be temporary and, ultimately, harmless. In fact, after the confusion clears, having two legal dads can be quite positive.
Admittedly, the situation initially is confusing and painful. Until my son was eight, none of his relatives, biological or not, called me “dad” in his presence I was simply “Erik.” Who my son actually thought I was he did not articulate. He seemed simply to enjoy his visitation with me. The confusion came when people outside the family referred to me as his “dad.” Waitresses, store clerks, friends, and others made innocent comments: “Are you having fun with your dad, today?” “What would dad like to order?” “Your dad and I have known each other for a long time.” Forewarning these people was awkward or impossible, as was instantaneously explaining the situation to my son or the other person.
For about two years then, age five to about age seven, my son occasionally appeared threatened and confused. He exhibited denial, anger, and general sadness. For a while he coped by rejecting me. It seemed my son thought having me as a dad meant losing his custodial dad. Any attempt I made to explain it privately to him worsened the situation. I concluded that the best way to cope was to focus on the quality of the relationship, not the formality of it. I answered my son’s questions as he asked them. His custodial parents called me a “friend who visits” This was a difficult time. But temporary.
________________1 See, for example, Family Ties: Solving the Constitutional Dilemma of the Faultless Father. David D. Meyer Fall, 1999. 41 Ariz. L. Rev. 753 at sections III - IV.
2Michael H. v. Gerald D., 491 U.S. 110 (1989), Stevens, J. concurring, citing and quoting Petitioner F. v. Respondent R., 430 A.2d 1075, 1080, and Vincent B. v. Joan R., 126 Cal. App. 3d 619 at 627-628, 179 Cal.Rptr. at 13.
