Grasping at straws

Many family law attorneys I know have mixed feelings about the outcome of Adoptive Couple v. Baby Girl.  State and federal laws make it more difficult than necessary for fathers of children born out of wedlock to assert their parental rights: the balance between the right to claim paternity and the imposition of child support is seriously tilted against such fathers.  On the other hand, the Father in this case initially demonstrated [as the Supreme Court accurately describes] “irrefutable lack of support, interest and involvement in the life of Baby Girl.”  On the third hand, Father and his family have raised his daughter for the past 20 months–reportedly doing it well.  So when the South Carolina Supreme Court denied his request last week for a de novo review on custody and ordered the immediate remand for adoption by Adoptive Couple, one could sense his desperation.

Evidently he has spent the past week petitioning the Supreme Court for rehearing, petitioning the Supreme Court for supersedeas, and filing a request for a de novo review in the Charleston County Family Court [an option I read the Supreme Court’s July 17th order as clearly foreclosing]. The Cherokee Nation filed its own petition for rehearing and joined Father’s petition for supersedeas.  On July 24, 2013, the Supreme Court denied Father’s petitions, in Adoptive Couple v. Baby Girl, 404 S.C. 490, 746 S.E.2d 346 (2013) holding:

Birth Father is precluded from challenging the adoption.  Moreover, in light of the urgent need for this matter to be concluded, we determine, upon review of the record, that the adoption of Baby Girl by the Adoptive Couple is in the best interests of Baby Girl…

We reiterate that, aside from the narrow issue of whether a transition plan is in Baby Girl’s best interest, the orders of this Court following remand from the USSC [United States Supreme Court] leave nothing further to be decided by the family court.  Accordingly, the family court shall forthwith approve the adoption and award legal custody to the Adoptive Couple.  The matter of transfer of physical custody shall be accomplished in accordance with Baby Girl’s best interest, as determined by the family court.

It is our fervent hope that the parties will work together in good faith and place the best interest and welfare of Baby Girl above their own desires.  This emotionally charged case was fully litigated in the South Carolina courts and the United States Supreme Court.  This case has reached finality, in this unchallenged forum and jurisdiction.  That finality should be honored.

Adoptive Couple v. Baby Girl, 404 S.C. 490, 746 S.E.2d 346 (2013). Father’s long-shot request for rehearing was understandable given two judges dissented from the July 17th order and that this was his best hope of keeping custody.  However collaterally attacking the South Carolina Supreme Court’s order by filing adoption petitions in other states, filing petitions for supersedeas, and filing requests for de novo review in the family court appear more desperate than strategic.

Counseling a client to give up–especially when the loss is as significant as it is here–is one of the hardest things a family court attorney has to do.  Often it is easier to develop unworkable legal arguments and give the client a glimmer of hope that the new strategy will work when past (and better) strategies failed.  Father’s desperation is understandable but at some point litigation has to end.  However, given what I glean from the new Supreme Court order, I doubt Father is done seeking to prevent the adoption and keep custody.

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