High Court Dismisses Case of Unwed La Habra Father

A La Habra man’s highly publicized 7-year legal battle to gain the right to visit a daughter he never knew ended at the Supreme Court on Tuesday when the justices dismissed his case on procedural grounds.

The court concluded that Edward McNamara, 42, failed to raise a constitutional issue when he first challenged a county custody ruling and therefore could not bring his appeal to the Supreme Court.

The action leaves intact the California child custody law that requires county adoption agencies to weigh the “best interest of the child” when deciding whether to place a baby with an unwed father or an adopting family.

Since 1981, when McNamara was denied custody of his daughter after the mother chose to put the infant up for adoption, McNamara has pursued a legal effort to remedy what he maintains is “the injustice of the system.”

His case has become a focal point for a “fathers’ rights” campaign nationwide, in which single and divorced fathers have challenged state laws they claim give the mothers’ wishes undue weight in custody disputes.

“I’m really disappointed they dodged the issue,” McNamara, an estimator for a general contractor, said in a telephone interview. “My rights as a father were terminated before I had any opportunity to exercise those rights.”

The child, who is now 7 years old, was conceived during a brief affair between McNamara and a San Diego woman. The mother put the child up for adoption through a county agency before notifying McNamara.

McNamara sought to block the arrangement and obtain custody of the child, but a trial judge concluded in December, 1981, that--although he would make a “good parent”--the child would be better off with the adopting family, Robert and Pamela Moses, then of San Diego.

Three years later, the California Supreme Court ruled that this conclusion was incorrect because McNamara, as the baby’s biological father, should have been given a preference in the adoption proceedings. But when the case was sent back to San Diego, the courts concluded that it was too late to take the child away from the only family she had known.

McNamara hoped the Supreme Court would rule that fathers had equal rights with mothers in custody battles. His attorney argued that a mother in a similar situation would not have lost the right to keep her child simply because she was unwed.

But on Tuesday, the Supreme Court said that it was dismissing the case (McNamara vs. County of San Diego, 87-5840) “for want of a properly presented federal question.”

Basis of Decision

Under its rules, the high court will review only constitutional issues that have been argued and addressed in the lower courts. In his hearing before the high court last week, McNamara contended that he has been denied his constitutional right to “the equal protection of the laws.”

However, when his case was in the lower courts, he had cited different grounds--that it was in the best interests of the child, under California law, for her to be in the care of her natural father.

This outcome was foreshadowed during the high court argument when several justices challenged McNamara’s lawyer to point to a place in the court record where the issue of “equal protection” was raised.

“When you find it, say ‘Bingo!’ ” snapped Justice Antonin Scalia.

Said McNamara Tuesday: “It would appear (that) the message to unwed fathers is to raise the constitutional issues at your first hearing. But at that point, you are not thinking your case is going to end up at the Supreme Court.”

No Further Grounds

McNamara, who has two sons from a previous marriage, conceded that he has no further legal grounds to gain visitation rights to see his daughter.

“All I can do now is to contact the adoptive parents’ lawyer to ask for some sort of visitation,” he said. Earlier, the parents said that they did not want to make any such commitment until the case was over, he said.

Lloyd Harmon Jr., county counsel for San Diego, said: “We are happy the adoption is final and not subject to any further attack. . . . The Moses family can now get on with a normal life.”

But Harmon said he wishes that the high court had ruled on McNamara’s case because the issue may arise again and lead to more protracted litigation.

Fathers’ rights advocates are expected to shift their efforts to other legal challenges to get a Supreme Court opinion.

Pending before the high court is another unwed father’s case from Southern California. In this case, argued in October, a Santa Monica businessman says that California officials violated his constitutional rights by refusing to allow him to prove he was the true father of a baby born to a married woman (Michael H. vs. Gerald D., 87-746).

In other rulings Tuesday, the court:

- Ruled that coal miners who worked in the mines less than 10 years may seek to prove they are victims of black lung disease. The 5-4 ruling in favor of the miners reverses a Labor Department policy, but the justices said that the ruling does not apply to more than 100,000 black lung claims that were settled earlier (Pittston Coal vs. Sebben, 87-821).

- In a narrow opinion, ruled unanimously that the law governing the National Security Agency does not mandate that a homosexual employee get a hearing before he is fired (Carlucci vs. Doe, 87-751). The ruling covers no other government departments.