Justices Cool to Unwed Father’s Appeal for Child

WASHINGTON —  Edward McNamara, a La Habra man who failed in six California court appearances to regain custody of a daughter born out-of-wedlock in 1981, got a chilly reception Monday from the justices of the Supreme Court.

McNamara, 41, maintains that his constitutional rights were violated when San Diego County social workers--acting at the behest of the baby’s mother--placed the girl with an adoptive family four weeks after her birth.

But in sharp questioning in a high court hearing on the case, the justices disputed the notion that the U.S. Constitution gives an unwed father rights that outweighs those of the child.

Question Posed

“Why can’t the state of California decide it wants to follow this policy” of acting in the best interest of the child, asked Chief Justice William H. Rehnquist. State law directs social workers to consider the child’s welfare foremost in custody cases, and the courts have agreed that McNamara’s daughter would be better served in the care of the adopting family.

Justice Sandra Day O’Connor said she wondered why someone who engages “in a so-called one-night stand” would have a constitutional right to control the fate of the child who accidentally results from the affair.

The case has emerged as a key test of fathers’ rights in custody cases, an issue that has been building with a series of lawsuits filed by fathers across the nation contending that legal processes now give undue weight to the choices of mothers and state agencies.

Long Beach attorney James E. Sutherland, representing McNamara, replied that “we are wandering off into the Brave New World” when the state can decide who will, and will not, get to raise their children.

“This father came forward and asked to be a full parent to this child. And he was denied any opportunity to form a relationship,” Sutherland said.

Sutherland argued that the county’s action was a form of unconstitutional sex discrimination against men. “No (unwed) mother would lose her parental rights” unless a court determined that she was an “unfit” mother, he said. In the case of McNamara, a divorced father of two sons, the trial judge in San Diego concluded that he would make a good father.

McNamara, an estimator for a general contractor, began trying to win custody of his daughter shortly after learning from her mother, a single woman whom he was no longer seeing, that she had become pregnant and had borne a child by him.

The adoptive parents and county agency opposed his efforts and in December, 1981, a judge ruled that it was in the baby’s “best interest” to live with the adoptive family. A state appellate court later agreed. But in 1984, the California Supreme Court said that McNamara’s parental rights could not be ended unless it was judged that it would be a “detriment” to the child to live with him.

In Round 2, a judge in San Diego in 1985 said it would be a “detriment” to remove the child from the adopting family, and a state appeals court and the state Supreme Court affirmed that conclusion.

The child at the center of the dispute is now 7 and living with her adoptive parents.

In friend-of-the-court briefs in the case (McNamara vs. County of San Diego, 87-5840), several organizations that aid in the adoption of babies warned the high court that a ruling in McNamara’s favor could “seriously disrupt” the adoption process. Couples would be unwilling to take babies like the child in this case, they said, if an unwed father could later “veto” the adoption.

Lloyd Harmon Jr., county counsel for San Diego, told the court that “time is of the essence” in arranging adoptions of babies. County officials cannot wait weeks for unwed fathers to appear and decide whether they wish to gain custody of the baby, he said.

No Longer Seeks Custody

“In 1986, one-fourth of all births in California were to unwed mothers,” Harmon noted.

Outside the court building Monday, McNamara said that he no longer is seeking custody of his daughter. “She’s in a good location now,” he said. Instead, he said he wants the right to visit with her regularly.

Despite a string of court defeats and the sharp questioning from the bench, McNamara said he was not dejected. “I’m fighting to get my rights back,” he said. “If I were to win, we’d go back to court again” in San Diego to decide when he can see the child, he said.

The justices are expected to decide the case by July.