Jury Weighs Unwed Father’s Role in Adoption Decision : Families: Man is suing his ex-fiancee and an attorney over child’s placement with family.

In a groundbreaking case that could redefine the rights of unwed fathers, a jury here is deciding whether a pregnant woman and her lawyer should be punished for preventing her former fiance from having a say in the future of their unborn child.

The case against Anne G. Conaty, three family members and Beverly Hills attorney David Keene Leavitt has drawn the attention of child welfare professionals nationwide because of the ethical questions it has raised about whether a father can be shut out of adoption decisions.

The mother and her lawyer believed that she alone had the right to decide whether to place the baby for adoption with a Canadian couple five years ago.

The father, Dr. John W. Kessel, believed otherwise. He sued unsuccessfully in Canada, seeking to be named joint guardian of the child, and later filed the civil action here, seeking $15 million in damages.

Although laws determining the rights of unwed fathers to block adoptions vary from state to state, most, including West Virginia and California, at least allow a father a court hearing to express his wish for custody of the child.

“The mother and her lawyer must make an effort to let a father have his day in court,” said Joan Hollinger, a UC Berkeley family law professor who has helped draft the proposed Uniform Adoption Act, a set of state laws that would make interstate adoption rules more consistent. “If they don’t, they’re depriving the father of his rights--and that’s fraud.”

The case went to the jury Monday. It marks the first time that a court has allowed a jury to hear accusations that a pregnant woman conspired with an attorney and her family to flee from a man seeking custody of their child.

In an instruction to jurors that stung the Conatys and Leavitt, the trial judge said a biological parent’s “natural right to the custody of his child” should not be taken away unless the parent is deemed unfit.

Testimony in the trial spun out like a Southern gothic romance novel, as members of two prominent and intensely private families were forced to relate a tale of chastity, reluctant sex, a surprise pregnancy, betrayal and ultimately a cross-country pursuit. Throughout the proceedings, the stern visage of Conaty’s late uncle has stared down from a portrait gallery of judges on the wall; the courtroom was his for eight years.

Conaty, then 31, is alleged to have skipped around the country for seven months in 1991 while pregnant to evade her former fiance Kessel and a summons to appear in a West Virginia court hearing on his paternity suit. She gave birth in Los Angeles in July, 1991, under an assumed name. She then allowed the baby to be adopted by an Edmonton couple.

Kessel, then 35, alleged that the Conaty family and Leavitt knew that he wanted to raise the unborn child if his ex-girlfriend did not. After fruitless attempts to negotiate or reconcile with her, he obtained a temporary injunction to prevent an adoption until his paternity suit was resolved.

“You hear so much about deadbeat dads,” said Cheryl Eifert, the first lawyer Kessel hired to represent him. “Well, here’s a guy who earnestly wanted to parent, and the law did nothing to help him.”

At the center of the storm is Leavitt, a leading figure in the burgeoning U.S. private adoption business, which is estimated to generate $800 million to $1 billion a year in fees and costs for attorneys, entrepreneurs and agencies.

Working from his base in Beverly Hills, he claims to have completed 9,000 adoptions since 1960--a stunning average of more than 250 a year--and acknowledges that he grosses up to $500,000 annually in fees from adoptive parents.

He has appeared frequently on television talk shows such as “Oprah!” and “Larry King Live” to argue that unwed fathers are mere “sperm donors” or “spoilers” who have no right even to be told of a woman’s adoption plans, much less have a voice in the process.

Indeed, in testimony here, Leavitt described Kessel--who had a seven-year relationship with Conaty--as a “recreational inseminator.”

In his own defense, Leavitt told jurors that he believes that unwed fathers have no constitutional right to determine a course for their unborn children. He also said Conaty had a right to travel freely.

Leavitt has never been successfully sued over his practice and has never been censured by the State Bar of California. But his beliefs and methods are far from mainstream.

“If a father takes steps to assert his paternity before a child’s birth, and a lawyer does anything to deprive the fellow of his rights, that is unethical--he should be sued,” said Samuel C. Totaro, president-elect of the American Academy of Adoption Attorneys. “These are the types of fathers you want to work with. You shouldn’t be trampling over them.”

Adoption experts believe that if Kessel wins and is upheld on appeal, the case would bolster the parental ambitions of unwed men by dramatically raising the stakes of defying them.

“A lot of lawyers may decide that they won’t take on these cases if they might end up putting their own money on the line,” said Jed Somit, an adoption attorney in Oakland. He said he considers the practice of evading fathers “morally repugnant.”

Leavitt testified that he arranged for the Edmonton couple to pick up Conaty’s infant at Cedars-Sinai Medical Center three days after birth largely because the province of Alberta does not recognize natural fathers unless they have lived with the mother for 300 days. “His consent was utterly immaterial up there,” Leavitt told jurors, referring to Alberta.

Kessel has no legal right to contact or be a part of his son’s life. His attorney, Marvin Masters, said that has “devastated” his client. And in closing arguments Monday, Masters said to Leavitt, “John Kessel’s baby was just another baby to sell.”

“This is a pipeline for babies out of the country,” Masters told jurors. Leavitt “preys upon mothers of children who don’t want the fathers in their lives.”

Masters told the judge that Leavitt has been involved in at least four similar cases in Alberta. The judge, however, did not allow jurors to hear that evidence.

Conaty, who was a kindergarten teacher at a Catholic school, told jurors that she and the beefy, well-tailored Kessel fell in love in 1983 and dated steadily and chastely for six years. She said she wanted to be a virgin on her wedding day.

Early in 1990, Kessel, a medical student and the son of a leading physician in nearby Logan County, proposed marriage, and Conaty said she accepted. But their relationship began to deteriorate when they broke the news to her parents, she said.

The two broke up, and began dating other people before reuniting a few months later.

A tall and slender woman with a strong jaw and regal posture, Conaty told jurors “I gave myself up” to Kessel sexually that summer only because she feared losing him to another woman.

When Conaty became pregnant in October that year, she said Kessel offered to marry her again--and she accepted again. But again, they fell apart.

Conaty said she hit the road in early January--at first guided in her travels only by her parents and brother Brian, a former Cabell County assistant prosecutor.

Leavitt said in an interview that Conaty left town because Kessel had begun to harass her and urge her to have an abortion--allegations that Kessel denied in testimony.

Finally determining that she could not raise the child alone, and not wanting the child to be the subject of a courtroom tug-of-war between herself and Kessel, she told jurors that she decided to put her baby up for adoption.

Meanwhile, back in Huntington, Kessel had launched a full-court press to find her. He testified that he called her family members and friends repeatedly. All denied knowing where she was, he said. He even called adoption lawyers in the West Virginia phone book in an effort to find out if any knew Conaty’s whereabouts, or whether the child had been born.

Finally, on June 3, 1991, Kessel filed a paternity suit in an effort to establish himself as the father and assert his right to parent the child.

Normally, legal experts say, that act should have halted adoption placement proceedings in California until a West Virginia court heard Kessel’s claims.

But it didn’t, because two days later Conaty signed a document in Leavitt’s Beverly Hills office in which she refused to state the name of the father and swore that he had not initiated legal action to establish paternity.

Three weeks later, Kessel obtained a temporary injunction blocking Conaty from making an adoption plan before his paternity case could be heard.

A linchpin of Leavitt’s and the Conatys’ defense is their contention that the injunction was not properly served. The trial judge--who had to be brought in from a neighboring county because all the Cabell County magistrates knew the Conaty family well--ruled that it was.

In the past four years, both Conaty and Kessel, now a physician in North Carolina, have each married others. Neither has children.