"Given the overriding importance of the interests at stake, it is especially important that the ground rules for multi-jurisdictional adoption disputes be as clear, fair and consistent as the courts including this court can make them," the petition states.
The U.S. Supreme Court has issued a handful of decisions regarding unmarried fathers' rights in adoption proceedings, but none of those rulings involved newborn infants. It will likely be six months or so before the court decides whether to grant a review.
Since 2008, higher courts in Utah have reviewed seven cases involving unwed fathers who lost custody fights despite filing timely paternity actions in their home states to protect their rights. The Utah Supreme Court is weighing a decision in a case involving a Colorado father that involves questions about the PKPA.
"Obviously, it is an important and recurring issue," said Clifton S. Elgarten, a Washington, D.C.-based attorney who is representing Wyatt. "The Supreme Court doesn't take many cases, but we're hopeful they will see the wisdom of considering this one."
Utah attorney Larry S. Jenkins, who represents the adoption agency, said Friday he is still considering whether to file a response.
Wyatt learned in May 2008 that Emily Colleen Fahland, his then-19-year-old girlfriend, was pregnant. According to court documents, on Feb. 4, 2009, Fahland informed Wyatt by telephone that she had spoken with A Act of Love Adoption Agency, based in Utah. She sent a text message the next day that said: "Do you understand that I'm receiving information from a Utah agency for proceeding with an adoption."
But Wyatt said he thought Fahland was just gathering information and that their co-parenting plan was still in place.
Unbeknownst to Wyatt, Fahland gave birth on Feb. 10, 2009, and a day later signed a document agreeing to waive Virginia law and proceed with an adoption in Utah. Wyatt learned of the birth on Feb. 11 but was initially unable to locate Fahland, who had checked out of the hospital and into a hotel under an assumed name.
A Utah couple flew to Virginia on Feb. 12 to pick up the infant. That same day, Fahland relinquished her parental rights. Wyatt hand-delivered a letter to the adoption agency's Virginia attorney on Feb. 12 requesting to see his daughter and take her home. Wyatt said he was told he could see the infant only if he consented to the adoption. He refused.
Eight days after Baby Emma's birth, Wyatt filed a custody action in Virginia. By then, the adoptive parents had returned to Utah with the baby and, on Feb. 23, began adoption proceedings here.
From that point on, court proceedings unfolded in both Utah and Virginia. In Virginia, a judge confirmed Wyatt's rights to his child. In Utah, a judge ruled Wyatt acted too late to protect his rights since he filed a custody action in Virginia after Fahland consented to the adoption and did not file with putative-father registries in Virginia or Utah until April. The judge also said she saw "no legal basis for deferring" to the Virginia court's decision that it had jurisdiction in the case.
In July, the Utah Supreme Court upheld that decision. It also found that Wyatt could not invoke the federal kidnapping law because he had not used it to support his case in the lower court. One justice argued that the PKPA doesn't apply to adoption disputes.
In the writ of certiorari, filed Dec. 15, Wyatt notes that the Utah Supreme Court did not say when or how he might have raised the PKPA argument earlier since he was barred from participating in the adoption proceeding. He also argues that Utah requires a father to comply with the law in his home state before a mother consents to an adoption whether or not that is the same deadline set by his home state.
"Utah law required that he fulfill Virginia's requirements more quickly than Virginia itself requires in this case, before the baby was born and before he knew there would be any contest over his custodial rights, let alone a contest in Utah," the petition states. The Utah law also "fosters fraud and deception on an unmarried father by the mother or unscrupulous adoption agencies" but then burdens the victim with anticipating such acts, which raises "troubling due-process questions."
In fact, Wyatt said he did timely assert his rights under Virginia law, as acknowledged by a judge in that state. The petition also argues that Virginia requires a birth mother to identify and provide notice of a pending adoption to a "reasonably ascertained" father and to wait three days before consenting to an adoption, which are rules Wyatt says Fahland violated.
The Virginia court, under the PKPA, had jurisdiction to decide who received custody of Baby Emma, Wyatt argues. Instead, the Utah Supreme Court has "re-injected ambiguity and the potential for sharp conflict between states that the PKPA had seemingly eliminated with its jurisdictional command," Wyatt argues, and "widens a split among state courts" in interpretations of the federal law.