Unwed Father: The Other Side : Pamela, Robert Moses May Yet Lose the Child Placed With Them Almost Seven Years Ago

The U.S. Supreme Court has agreed to hear the case of Edward McNamara, an unwed father who for seven years has been fighting for custody of a daughter given up for adoption by her mother shortly after her birth in July, 1981. On April 26, View , after repeated unsuccessful attempts to contact the adoptive parents through their attorney, carried an interview with McNamara . After that interview appeared, the adoptive parents, Pamela and Robert Moses, asked to tell their side of the story.

Pamela and Robert Moses had waited a long time for a second adopted child and when an infant girl became available through San Diego County they were overjoyed. Neither was unduly concerned that, because the child had been relinquished for adoption by her mother but not yet by her father, she had been labeled “high risk.”

Their understanding, Pamela Moses says, was that “we could lose her anytime up to six months. Then, we were home free.” It was a chance they were prepared to take.

That was in August of 1981. Today, the Moseses are still fighting for permanent custody of Katie, a beguiling blond child who will turn 7 next month and whose future is to be decided by the U.S. Supreme Court.

Taken Fight to Supreme Court

Edward McNamara, 41, who fathered the child during a brief relationship with a woman he met at a convention, has taken his fight for her all the way to the Supreme Court. He contends that he was denied his basic rights as a parent when Katie was placed permanently with the Moses family by the San Diego County Department of Social Services even though he had filed for custody.

The Moseses agree. Pamela (P. J.) does not hesitate to say that, in the beginning, McNamara did not get “a fair shake. He was wronged. That’s not even particularly debatable.” And, she adds, his crusade for fathers’ rights is “the right thing. But it’s not the right thing in this case.”

Had they lost Katie at the first custody trial, when she was 5 months old, Robert Moses says, both they and Katie could have survived--”She’d make her way in life, and we’d get over it.”

Now, P. J. ponders the unthinkable, that Katie could be removed from the only home she has ever known, and she says, “Parents’ rights are critical. But children’s rights have to come first.” And she says, “This was the case that everybody had been waiting to have happen.”

Mad at the System

Robert Moses, 42, a soft-spoken Texan, reflects on this legal nightmare, on the emotional toll it has taken on his children, Katie and Joshua, on the financial burden (attorneys’ fees could eventually run as high as $75,000). And he is “angry” at McNamara as well as at a system that, he charges, treats children like “commodities.”

P. J. and Robert Moses met in 1972 in Dallas, where both worked for the Hertz Corp., and married two years later. P. J. says, “The day after we were married, we began to try to have a baby.”

When after two years she failed to become pregnant they began adoption proceedings, which were delayed and sidetracked by his job transfers, first to Santa Barbara, then to San Diego, to Houston and back to San Diego. Meanwhile, surgery for endometriosis had not enabled P. J. to conceive.

Back in San Diego, the Moseses re-established contact with the Department of Social Services and were attending meetings of prospective adoptive parents when P. J.’s sister called to say she knew a pregnant teen-ager who wished to have her baby and place it for adoption.

It was somewhat risky--open adoption was rare then--but the Moseses decided to offer the young woman a home for the duration of her pregnancy. “We were going to help her,” P. J. says. “If she decided to place (the child) with us for adoption, that was fine. If she changed her mind, that was fine. As difficult as it would have been, that was the only way it would have been right.”

When Debbie moved in with them, she was 18 years old, single, five months pregnant and she brought with her a 2-year-old son, Sean. On Dec. 16, 1978, she delivered a healthy boy, Joshua, with P. J. as her labor coach. P. J. recalls, “As soon as he was born, (Debbie) turned to me and said, ‘Go tell Robert he has a son.’ ”

When Joshua was 5, the Moseses invited Debbie and Sean to vacation with them. They felt it was imperative, she says--”The unknown was becoming too big” in Josh’s mind. “We had to kind of face this.”

But, they say, they saw the tumult and confusion this caused Joshua. P. J. remembers him telling her one day, “Now I have four moms. I have you and I have a birth mom and I have a Godmother and. . . . “ And, she adds, “When he’d get angry, he perceived he had an option of this other family.”

Seek Them Out

So they told Joshua, “You have one family. These people, even though they’re related to you, are not an active part of your life. When you get to be 18, you can seek them out. But we’re not going to keep talking in school about having 17 brothers and sisters. We’re going to say we have one (Katie).”

When the Moseses ponder the possibility that Edward McNamara will be granted at least visitation rights with Katie, who does not know him, they think about this emotional tug of war. Katie, told of her two older half-brothers (McNamara has two sons by a previous marriage), asked, “Are they lost? Where are those people?” Recently, wanting her to be “forearmed,” the Moseses let her watch a videotape of an interview with McNamara. Seeing him for the first time, she asked Pamela what he does, what kind of house he lives in.

The Moseses are asking questions, too. They want to know why McNamara is carrying on his fight for Katie, whom he has seen twice, the last time when she was 4 months old. “My true feeling,” Robert Moses says, “is that it has to do with the principle. I think he’s gotten caught up in it. Fathers’ rights are important. I don’t disagree with that. But why disrupt and damage a child’s and a family’s life for a principle?”

Should McNamara be granted custody, he and his attorney say, Katie could make a slow transition to her new home, with professional counseling to smooth the path. P. J. just shakes her head: “They can’t do that. There is no way.”

The Moses family agreed to an interview after being assured that their location, apparently unknown to McNamara, with whom they have had no contact for two years, would not be disclosed.

They welcome visitors to a big, sunny house whose occupants include two small pet snakes, two Schnauzers, a ferret and myriad goldfish. Joshua and Katie understand who the visitors are and understand that this conversation has to do somehow with Katie’s future and with court. They are aware, too, that their parents are upset and during the evening there is a little acting out.

On Aug. 7, 1987, Robert’s birthday, the family had been in a San Diego courtroom for the signing of Katie’s final adoption papers. “It was a real emotional moment,” he says. “We all thought this was resolved. Lee Selvig, our attorney, said at that time it’s 98% final. In my mind, that meant final. I thought this is it, this is over.”

At home afterward Katie had said, “Am I yours now?”

For six years, P. J. says, “this had taken up my life. I had to find a way to put things back together.” So, almost 40, she enrolled in college to work toward a degree in elementary education. Robert’s job as chief financial officer with a multioutlet retail chain permitted them a comfortable life style. “We were all so happy,” she says.

Then, in mid-April, the U.S. Supreme Court dropped its bombshell, agreeing to hear the case after reviewing an appeal by McNamara’s attorney, James E. Sutherland of Long Beach. A decision is expected in October or November and, depending on its findings, Katie’s adoption could conceivably be overturned.

This is the last hurrah in McNamara’s fight for Katie, or “Baby Girl M.” as she has been known through a series of trials and appeals that began in a San Diego courtroom in late 1981 and went to the state Supreme Court, which last year refused to review the case.

Builds a Courtroom

P. J. smiled and said, “When Katie builds with Legos (interlocking building blocks), she builds a house, and then she puts a courtroom on it. Here’s Mom and Dad, and here’s the courtroom.”

If she doesn’t understand the idea of having a father and a “birth father,” she does understand the turmoil and sense the tensions. Because she tends to internalize her emotions, P. J. plans to put her into play therapy, hoping “this will at least give us some insight into what she’s feeling.”

She is concerned, too, about Joshua who, she says, is “very bitter” about the years in and out of courtrooms. “As he perceives it,” she says, going to court “just means that I cry and I get angry, and the time he wants for himself is taken away by all those people.”

And, he is somewhat jealous of the attention focused on Katie. “It’s putting a very big strain between her and Joshua,” P. J. says. “On one hand, he feels left out. On the other hand, when he’s angry with her, I think he feels guilt. What if he says something and then anything happens to her?”

Meanwhile, she says, Katie is “struggling,” having problems at school, “I mean, she’s falling apart. So they both are living under this terrible thing.”

The Moseses are angry with Edward McNamara and angry, too, with the system, focusing that anger on the San Diego County Department of Social Services which, as they see it, failed from the start to give them needed support or just to communicate with them.

They also see the case as a terrible tangle that could have been avoided.

(Chief of adoptions Hawley Ridenour, who was not there in 1981, says, “Seven years ago we were operating in a different mode . . . the rights of the unwed father had not been clarified. That’s what this case is, trying to clarify what you do.” His agency makes 300 placements a year, Ridenour added, and some are “less than perfect” but the agency “has been completely transformed, with a 100% change in philosophy” since 1981. Today, he said, “We would have said (to McNamara) ‘the child is yours’ . . . essentially, he’s the parent.”)

Katie was only 5 weeks old when she was placed in the Moseses’ home despite the fact that McNamara had filed court papers asking for custody.

Two months after Katie was placed with them under a “Fostadopt” plan, P. J. recalls, a county social worker called and said, “Well, this looks like it’s going to be a little bit more difficult so why don’t you hire your own attorney and protect your interests?” They did, borrowing $500 from their parents to pay the retainer.

When she was 5 months, the court decided the adoption could proceed without McNamara’s consent in the “best interests” of the child. The series of hearings and appeals that followed was centered on the issue of whether “best interests” alone is a proper determinant in deciding custody or whether there must also be a finding of detriment to the child were there to be a change of custody. In Katie’s case, the father has never been found to be an unfit parent.

Held Off the Baby Shower

P. J. remembers, “We held off having a baby shower” until after the first trial. “We cared for Katie and loved her but it was very much always in our mind” that she could be taken back. “So when the decision came down (in their favor), we had the baby shower.”

Then they learned that McNamara had appealed. But, they say, the county assured them this appeal was “just a formality.” Says P. J., “We were so naive. We had no earthly knowledge of appeal.” McNamara won the appeal, setting the stage for the lengthy seesaw battle that would follow.

McNamara, who is single and lives in the Los Angeles area, said in an earlier interview, “She’s my child and I feel very strongly that the parents should have the first and primary responsibility for raising their children.”

P.J. says of McNamara, “I know how he must feel, looking at her (he recently viewed a videotape). I know. But I don’t respect him, that he doesn’t love her enough to have let her go a long time ago.” Why, she wonders, will he not “let us have any peace.”

In direct response to this case, the California Legislature amended the civil code to provide that a finding of detriment is not necessary, that the “best interests” test should be the standard. But, because the amended law does not apply retroactively, the case of Katie has been in legal limbo.

And until now, the Supreme Court has not directly considered a case where the mother has relinquished a newborn and refused the father contact. Thus it has never addressed the question of whether the natural father’s parental rights may be terminated solely by a “best interests” gauge. Fathers’ rightists, who contend that single fathers rarely win custody over adoptive couples, are elated that this case will be considered.

P. J. tells of how, when Katie was about 2 1/2, and they were awaiting a decision by the state Supreme Court, a social worker called one afternoon and said “we just sort of feel this is not going to be good” and advised her to pack a suitcase for Katie with her favorite things. “I remember sitting there just rocking and crying,” she says. Even now, she cries as she talks about it.

Theirs is a test case. “We’re the cost,” P. J. says, “but the people coming behind us are going to be very thankful.”

The Moseses say they offered McNamara visitation rights when Katie was 3 1/2 but that at that time he was intent only on getting legal custody. Further, they say, after the first trial, he could have asked for visitation and “it probably would have been granted.”

“He’s saying now, ‘I just want to be part of her life.’ ” If that’s the case, they contend, “Then he should have taken action at 5 months and he would have been granted it and things would have been over.”

The issue now, Robert Moses says, is whether, in the eyes of the law, “this child is worth sacrificing for a principle. That’s the issue.” To establish an ongoing relationship with McNamara now would be, they contend, “devastating” to both Katie and the rest of the family.

P. J. says of Katie, “She’s had a real tough go for a little tiny kid.” Robert ponders the possibility of some sort of joint parenting arrangement and says, “I don’t think her little soul could take it.”