Bastardette has been busy with other work, but will return to her regularly scheduled commentary very soon. In the interim, Erik L. Smith, shares his latest commentary with Bastardette’s readers. An interview with Erik and a bibliography of his publications can be found here
Legal researchers have advised against legal custody arrangements between prospective adoptive parents and natural fathers.  By legal custody, I mean all three parties having parental rights, but where the prospective adoptive parents keep custody and the natural father gets visitation The option is sometimes proposed in contested adoptions. Courts have opined that the child will suffer irreparable confusion, uncertainty, and embarrassment growing up with two legal fathers. As one U. S. Supreme Court justice, and two state courts, reasoned:
“‘The Court believes that the existence of two (2) ‘fathers’ as male authority figures will confuse the child and be counterproductive to her best interests…. Confusion, uncertainty, and embarrassment to the child would likely result from a court order[ing] that appellant, who claims to be Z.’s biological father, [be] entitled to visitation against the wishes of the mother 
While the legal custody alternative is not a cure-all, or even workable in all situations, the fear that a child will be harmed by having “two fathers as male authority figures” is exaggerated. I know this from experience.
In 1993, I sought to overturn my son’s adoption. Because my son was a year and a half old when the termination hearing commenced, the adoptive parents and I entered an agreement. They got custody of my son, while I got liberal visitation. The natural mother’s parental rights stayed terminated.
The litigation before then was extremely combative. Although the court ordered visitation during the proceedings, the prospective adoptive parents were adamant about terminating my rights. Relations were further strained due to what I alleged were later misrepresentations about what happened during the visitation. Anything positive between my son and I during the visitation went unmentioned, while anything remotely negative was slanted, exaggerated, or made up. Only after much time had passed, and the court apparently saw that I would not quit, did the parties reach the agreement.
But we succeeded in managing the confusion my son experienced in having “two dads.” The motivation was simple. Despite our private wishes, we all wanted our son to be happy. No normal person wants to raise a permanently confused child.
The Supreme Court’s contention also splits hairs. Practically, the two-dad situation occurs in some divorces, where the child sees the step-dad and the natural dad as separate father figures, and where the custodial, natural mother complies with visitation because a court order tells her to. Courts do not decide routinely in those cases that one of the two male figures needs to be kept from the child.
The ultimate truth is this: The child will experience some uncertainty, confusion, and embarrassment But where the parties act maturely, its effect will be temporary and, ultimately, harmless. In fact, after the confusion clears, having two legal dads can be quite positive.
Admittedly, the situation initially is confusing and painful. Until my son was eight, none of his relatives, biological or not, called me “dad” in his presence I was simply “Erik.” Who my son actually thought I was he did not articulate. He seemed simply to enjoy his visitation with me. The confusion came when people outside the family referred to me as his “dad.” Waitresses, store clerks, friends, and others made innocent comments: “Are you having fun with your dad, today?” “What would dad like to order?” “Your dad and I have known each other for a long time.” Forewarning these people was awkward or impossible, as was instantaneously explaining the situation to my son or the other person.
For about two years then, age five to about age seven, my son occasionally appeared threatened and confused. He exhibited denial, anger, and general sadness. For a while he coped by rejecting me. It seemed my son thought having me as a dad meant losing his custodial dad. Any attempt I made to explain it privately to him worsened the situation. I concluded that the best way to cope was to focus on the quality of the relationship, not the formality of it. I answered my son’s questions as he asked them. His custodial parents called me a “friend who visits” This was a difficult time. But temporary.
Gradually, my son realized that nothing had changed, and that all three parents still cared about him. He soon understood that being different did not mean being disadvantaged At that point, at about age eight, he developed a certain pride about the situation, manifested in a need to test the realization. He sought every opportunity to call me “dad.” He asked me abundant, trivial questions–particularly in front of other people–all prefaced by “Dad?” And in a voice louder than required. He showed me off to his friends. He tactfully introduced me to his friend’s parents as “my visitor” then would tell his friends that I was his dad. His friends never seemed to bat an eye at it. For my son, what at first appeared to be a threat to security was now perceived, at some level, as added security.
Only one truly embarrassing situation occurred that I know of. While visiting with me, my son (“D”), then six, went to the park to play with two boys from the neighborhood One of the boys (“P”) was older than my son. While they were gone, my son’s other dad called and said he would be dropping off some of D’s clothes for him that we had forgotten to take. About an hour later, P came running up to my door, with my son right behind him. They were out of breath. P looked terrified I thought something horrible must have occurred.
“A man tried to kidnap D!” P shouted. “He drove up to the park and told D to get in the car and D started to walk over there but I grabbed him and we came running back here! Oh my God! Then the man started following us in the car and we were running for our lives! I think he’s still coming after us! Oh, no, there he is!” And P ran into my house. D and I followed him in. I was confused because D did not seem hurt or upset. Then I heard a knock and saw my son’s other dad at the screen door, holding a night bag. He had driven by the park and, seeing my son, stopped, gotten out of the car, and approached the boys. When he suggested D get in the car, P grabbed my son by the arm and screamed for him to run. P had been convinced that my son’s other dad was the kidnapping car-driver his parents and teachers had always warned him about. The poor kid. I think he was traumatized. We both assured P that he had done nothing wrong. My son’s custodial dad then dropped off the bag and left. P later asked me, “Who was that man?”
“That’s D’s other dad,” I said.
“Oh,” he simply replied.
My son had not wanted to tell P that the man in the car was also his dad. Perhaps wrestling with some confusion or embarrassment of his own, he let P rescue him. Both dads assured P that he had done nothing wrong.
My son is now twelve. We have had conversions like the following:
“Dad, can we go to a Bluejackets game?”
“The tickets are expensive. Why don’t you get your dad to take you?”
“Dad doesn’t live in Columbus.”
“How about going to a football game?”
“Dad already took me to a football game. How about a Buckeye basketball game then?”
My son is not confused by this. Nor does he apparently want the situation some other way, as evidenced by the few times he has played the “real dad” card.
“Why should I do what you tell me to–you’re not my real dad!”
“Does that mean you are not my real son?”
Each time, I have managed to get reinstated to “real-dad” status.
A later difficulty seemed to concern whether he was adopted.
“Why do I have to be adopted? I hate being adopted!”
“You’re not adopted.“
“What do you mean I’m not adopted?“
“Adopted means you don’t get to visit your biological dad. But you visit me all the time.”
“You mean I’m not adopted?”
“No, you’re not adopted. You just have two dads. Most kids aren’t that lucky.”
Granted, I have presented only one side of one story. And the jury is still deliberating our parenting verdict. But, in my view, whatever remnants of embarrassment or stigma remain, exist mainly in the eyes of others. Even this evaporates quickly upon seeing that my son and I have an otherwise normal and caring relationship. Legal custody, where practical, is really a threat to Americans’ image of living in a picket-fence world. If such custody arrangements were the only threat to society, I might re-evaluate my opinions and conclusions. But it’s not the only threat. Divorces, involuntary custody agreements, and single-parenthood are commonplace. Those relationships, and the effect on the children involved in them, are as positive or negative, as stable or unstable, as the people involved in them choose to make it. Although few want to hear it, the same is true for adoptive and conventional families.
I do not believe, in any sense, that my son would have been better off had my parental rights been terminated. Nor do I believe my son would necessarily have been better off had I removed him from his non-biological parents. It would have served no practical purpose for one party to go away bitter, disappointed, and economically devastated while the child went away without the benefits of having a legal relationship with that other side. My son now has two legal dads. He also has double the number of paternal grandparents, relatives, inheritance possibilities, college funds, and emotional support opportunities that most other children have. The adoptive parents and I have had some rocky moments. But my son does not seem to be significantly embarrassed about anything. To the still stubborn, I ask: “Is the pain and confusion children like my son experience initially in childhood greater or less than the pain and confusion adult adoptees often feel upon knowing they were taken from a biological parent who did not consent to their adoption?”
I do not argue that such open situations be the optimum choice in contested adoptions generally. I only argue that a non-biological couple’s predictable insecurity, and the child’s predictable uncertainty, confusion, or embarrassment, are not, in themselves, valid reasons for rejecting the option of an agreed legal custody arrangement. I suspect those rationales reflect more society’s wish to avoid its own uncertainty, confusion, and embarrassment.
 See, for example, Family Ties: Solving the Constitutional Dilemma of the Faultless Father. David D. Meyer Fall, 1999. 41 Ariz. L. Rev. 753 at sections III – IV.
 Michael H. v. Gerald D., 491 U.S. 110 (1989), Stevens, J. concurring, citing and quoting Petitioner F. v. Respondent R., 430 A.2d 1075, 1080, and Vincent B. v. Joan R., 126 Cal. App. 3d 619 at 627-628, 179 Cal.Rptr. at 13.
Updated Sept. 26, 2005