A Virginia father can seek damages from adoption lawyers and a Utah couple who adopted his child without his permission, a divided Supreme Court of Virginia said on April 20. A tort claim for “tortious interference with parental rights” is part of Virginia common law, the court said.
According to the father’s complaint, the mother misled him into thinking they would rear the child together, while she continued talking to lawyers about adoption, at the urging of her parents. The mother did not inform plaintiff when she went into labor early and when she delivered the child on Feb. 10, 2009. Although plaintiff John Wyatt III sued for custody in Virginia, Utah courts have awarded custody to the adoptive couple. Wyatt sued in a Virginia federal court, which certified questions to the Virginia high court.
The Virginia Supreme Court authorized Wyatt’s suit against Virginia lawyer Mark McDermott, Utah lawyer Larry Jenkins and the Act of Love agency and adoptive parents Thomas and Chandra Zarembinski.
“It is both astonishing and profoundly disturbing that in this case, a biological mother and her parents, with the aid of two licensed attorneys and an adoption agency, could intentionally act to prevent a biological father — who is in no way alleged to be an unfit parent — from legally establishing his parental rights and gaining custody of a child whom the mother did not want to keep, and that this father would have no recourse in the law,” wrote Justice LeRoy F. Millette Jr. for the court majority.
Justices William C. Mims, S. Bernard Goodwyn and Elizabeth McClanahan found no such common law right and dissented from the decision “legislating public policy in Virginia through judicial pronouncement,” in McClanahan’s words.
The opinion in Wyatt v. McDermott is VLW 012-6-078.
Other cases released April 20 are highlighted in the VLW SCoVA Blog.
— Deborah Elkins