The Unwed Father : Edward McNamara Has Fought Seven Years for the Child He Lost Before He Knew She Existed

It was an August-to-November romance, a brief liaison in 1980 between Edward McNamara and a young woman he had met at a convention. Nine months later he learned that a child had been born of their union, and for almost seven years McNamara has been fighting for custody of that daughter. Last week the U.S. Supreme Court agreed to hear the case, in effect to decide which comes first--parental rights or solely the best interests of a child.

McNamara, 41, a soft-spoken estimator for a general contractor in La Habra, appears an unlikely crusader, but when he tells of his determination to gain custody of this daughter, now called Katie, with whom he has spent only one hour, he becomes intense, passionate. “I’m doing this for both of us,” he says. “It’s a very basic rights issue.”

That issue, as he sees it, is this: “She’s my child and I feel very strongly that the parents should have the first and primary responsibility for raising their children.”

In the case of Katie--referred to as “Baby Girl M.” in documents chronicling a seven-year custody battle in California courts--McNamara is the only natural parent in the picture. Katie was relinquished for adoption by her mother at birth and she and the father have had no contact since the child was weeks old.

Roller-Coaster Legal Actions

Both McNamara and the mother were living in San Diego County at the time and Katie was subsequently placed by the San Diego County Department of Social Services in a prospective adoptive home. But McNamara, who was divorced and the father of two young sons, refused to sign the relinquishment papers, thus setting in motion a series of legal actions he describes as “a roller-coaster ride for everybody involved.”

Arlene Prater, an attorney in the San Diego County Counsel’s office, does not hide her “disappointment” that the Supreme Court is now further delaying a resolution of the case. A ruling in favor of McNamara, she contends, would be a “clear detriment to the child, who has been in her (prospective adoptive) home for her entire life.”

“Baby Girl M.” was 2 weeks old when, on Aug. 1, 1981, her mother contacted McNamara to tell him of the birth. “I never knew she was pregnant,” he says. “She called me up and said, ‘I need to speak to with you. . . . ‘ “ At that time, the county had already placed the baby in a temporary foster home.

Learning that the mother had asked for adoption assistance, and that county social workers already had presented to her profiles of three prospective adoptive families, McNamara on Aug. 5 asked that the baby sitters for his sons--who at that time were in his temporary care--be considered as well.

“My main concern,” he says, was “I didn’t want to be out in the cold and never be a part of my daughter’s life. Here (the mother) had nine months to think about what she was going to do and I had like four or five days.” But the mother would not go along--”she wanted her to be placed with someone that neither of us knew.” That same day she formally relinquished the baby for adoption.

On Aug. 10 the county filed for termination of his parental rights. “Apparently no one had ever fought this,” he says. “It was like a rubber-stamp situation.”

On Aug. 17, McNamara arranged to visit the child, a visit he recalls as a very emotional experience, “amazing.” Unwilling to accept the thought of never seeing her again, he filed court papers asking for custody. “I wanted my daughter,” he says. “I wanted to raise her.”

But on Aug. 24, the child was placed in a prospective adoptive home.

He decided to fight. Temporarily out of work and unable to afford an attorney, McNamara petitioned for a court-appointed attorney and Joseph D’Addario was assigned to the case. At the first hearing, in December of 1981, the court determined that McNamara was a “good parent (who) can provide a good, loving home for this child.” Nonetheless, the judge determined that “Baby Girl M.” had already “bonded” with Robert and Pamela Moses, the prospective adoptive parents who had cared for her for most of her first five months, and recommended they be granted custody.

There followed a series of trials and appeals during which the case worked its way up to the California Supreme Court. With each passing week, each passing year, McNamara realized that time “is not on my side.” Now, Katie is almost 7 years old.

He has no animosity toward Robert and Pamela Moses. (Several attempts by The Times to contact the Moseses through their attorney were unsuccessful.) McNamara met them once during the second trial in 1985, and says, “They seemed like nice people to me. I have no fear or misgivings . . . they’re probably doing a great job as parents.” (They also have an adopted son, three years older.)

But he feels that San Diego County and the legal system have robbed him of a God-given right. “When she was 5 months old, to have then placed her with me would not have been detrimental” to her, he contends. He saw a few pictures of his blond daughter during the second trial. Otherwise, he says, he is “totally in the dark” about what she is like. “The cuts and bruises and all the things of childhood, I’ve been denied that,” he says.

By late 1984, the legal battle over “Baby Girl M.” had reached the state Supreme Court, which decided that two yardsticks--best interest and detriment--need be applied in determining custody. But the court also ruled that the child had been so long with the Moses family that there should be another trial to determine whether it would now be detrimental to her to be taken from the adoptive home--a proceeding that McNamara lost, along with all of his parental rights. An appeals court affirmed that decision.

Then, about mid-1987, James Sutherland, a Long Beach attorney who had been “a sympathizer and a watcher of the case” for several years, contacted McNamara. “We petitioned to the California Supreme Court to review the matter and they declined,” Sutherland says. “So we then appealed to the United States Supreme Court.”

Amended Law Not Retroactive

In his brief, Sutherland suggested it was a denial of equal protection to terminate the parental rights of an unwed father who had, from the beginning, exhibited significant interest in his child, and who had not been found to be unfit.

But Arlene Prater, representing San Diego County, sees the continuing legal skirmish as slightly moot. “The whole issue in this case,” she says, “was whether parental rights can be terminated solely in the best interests of the child--or whether the court also has to make a finding of detriment.”

Since this case began, and in “direct response” to it, Prater points out, the Legislature has amended the civil code to provide that a finding of detriment is not necessary, that the “best interests” test is the standard. But because the amended law does not apply retroactively, the “Baby Girl M.” case has been in what Prater terms “legal limbo.”

Jon Ryan, who heads the New Hampshire-based National Organization for Birth Fathers and Adoption Reform, is elated that the U.S. Supreme Court will be deciding the case. Where the law, as in California, stipulates that the best interests of the child be weighed between the adoptive parents and the natural father, he says, “The father never has a chance. A single father will never be considered better than a prospective adoptive couple.”

If McNamara wins, he says, it will make make those doing adoptions “very responsible about addressing the issues of both parents before a child is freed for adoptions. The critical thing is that a child does not go into the adoptive home until it is legally free for adoption.”

Although some county adoption agencies are now paying strict attention to proper procedure, Ryan points out that “some agencies that are claiming to do open adoption have told me right to my face that birth fathers don’t care and they don’t want to make them a part of the process.”

But Hawley Ridenour, chief of adoptions for San Diego County for the last four years, says: “I would say this case would not happen again. We’re in a different era. In 1981 the rights of unwed fathers had not been spelled out in case law or in regulation.”

Today, he says, the natural mother’s relinquishment would be taken with conditions; one question she would be asked is whether she wished to relinquish if the father was not willing to do so. “We would definitely ascertain any unwed father’s interest in the child” and, if he wants the child, basically “then the child is his.”

Edward McNamara speaks of the “tender loving feeling” he had when he held the infant girl now named Katie. His determination to be part of her life has never ebbed; even so, he is quick to say of those who oppose him on the grounds that it would be devastating to take the child from the only home she has ever known, “I can understand their position.”

He adds, “It’s unfortunate that I haven’t been able to develop a relationship. We did go to court and ask that visitation be allowed, and that was also denied.” (At the second trial, the judge suggested, but did not order, that the prospective adoptive parents maintain contact with McNamara and they have declined to do so.)

McNamara, who has been single since his divorce in 1980 (his former wife and sons now live in Northern California), says he has a stable job that allows him to work at home and a three-bedroom apartment within walking distance of public schools, as well as an extended family, including supportive grandparents for Katie.

He describes himself as a man who enjoys travel, model railroading, sports--and his children. He sees his sons once a month, he says, and they often spend vacations with him.

“It’s important to understand, attorney Sutherland points out, that McNamara is “not perched out here ready to swoop in like pirates kidnaping somebody and swinging off. He’s not talking about suddenly taking (Katie) out of that home and wiping them out of her life. We’re talking about transition programs and visitation.”

McNamara adds, “We would use professional help, use whatever services are available. . . . It would probably take some time.”

Prater is not buying that argument. “There’s no question,” she says, “that even the slowest removal would still leave permanent detriment. . . . The issues of bonding are well studied and rather well established in the psychiatric community.”

To those who would argue that he cannot have bonded with a child he has seen only twice, and only briefly, McNamara says, “I think the thing that gives me that bonding feeling is the relationship that I have with my two boys. . . . It isn’t as if I’ve never been a parent. I know the responsibilities and life’s joys and sorrows. And so it makes me sad that I cannot have that opportunity with my daughter who I know is out there.”

Of Katie’s adoptive parents, he says, “I can imagine how they feel. . . . They had no idea it would ever go this long.”

“We’re saying,” Sutherland adds, “that parental right determination is something different than custody. . . . He could, for instance, have the right to visitation, the right to be a successor parent” if others named guardians were unable to care for the child. “We don’t think that you should terminate a parent’s rights, cut them out completely, just because at the moment it looks like somebody else would be a better custodian.”

A decision is expected from the Supreme Court in October or November. “If we lose,” Sutherland says, “the adoption would be completed. He would not have any parental rights or parental relationship. His daughter wouldn’t be his daughter, I guess.”

If McNamara wins, it will not necessarily be a clear-cut victory; the courts could, for example, give guardianship to the adoptive parents while granting him other rights that would guarantee him an ongoing relationship with Katie. At least, he says, “that’s a beginning.”