This second article in our series on paternity examines specific rights of putative fathers to maintain a parent-child relationship. We look at a biological father whose rights were thwarted when the mother gave the child up for adoption despite his efforts to ensure that she would not do so. Interference by a mother and/or her family resulted in some significant financial consequences. Unfortunately, the jury's award of money was overturned on a technicality.
In Smith v Maloof, 722 So.2d 490 (Miss. 1998), the mother and her parents conspired to deprive a father of his parental rights. This case was fought in Mississippi.
In August 1991, Joe W. Smith, Jr. (Joey) and Natalie Cash Malouf (Natalie) were in a dating relationship, and Natalie became pregnant. Against Joey's wishes, Natalie decided to give the child up for adoption. Natalie then moved away, allegedly to hide from Joey while she was pregnant. Three months before the child was born, on January 14, 1992, Joey initiated legal proceedings against Natalie in the Leflore County Chancery Court seeking a declaration of paternity, order for custody of the child and injunctive relief to stop adoption proceedings within and outside Mississippi. On March 12, 1992, Joey also filed for a temporary restraining order to enjoin the commencement of adoption proceedings. On March 27, 1992, the chancellor issued a permanent injunction in the form of a final judgment which enjoined Natalie and "all who might assist her" from proceeding with an adoption.
On April 21, 1992, the child was born in Marietta, Georgia, then taken to California. From there, the child was adopted by Canadian citizens. On June 16, 1992, Joey and his parents filed suit in the Circuit Court of Leflore County against Natalie and her parents, Alex J. Malouf, Jr. and Patricia Malouf, for intentional infliction of emotional distress, conspiring to prevent Joey from exercising his parental rights and conspiring to effect illegal adoption of a child born out of wedlock. In September 1992, the Maloufs filed a motion to dismiss the complaint claiming that there was no cause of action for which relief could be granted. The trial court granted the motion. Joey appealed that decision in November 1992.
The Supreme Court of Mississippi upheld Joey’s cause of action for intentional inflictions of emotional distress. Smith v. Malouf, 722 So. 2d 490 (Miss. 1998). Ultimately, however, the father’s case was dismissed when the court held that the mother had a constitutional right to travel to California that defeated the father's right to establish a custodial or support relationship with the child. Download Smith_v._Malouf
The question is: "Would Smith v. Malouf case be decided differently if it were filed today?" I suppose that the answer to that is "It depends upon who is sitting on the U.S. Supreme Court" (if the case reached that level). Many changes have occurred since 1998 that could change the results in Smith v Malouf. While the constitutional right of a mother to travel with child in utero, give birth in New York and maintain a paternity suit in New York trumped a biological father's right to maintain a paternity action in California in McKenna v Miller, when the Court held that the Uniform Child Custody Jurisdiction and Enforcement Act does not apply to a fetus and that a mother's constitutional right to travel does not defeat the father's right to be notified upon the birth of the child and to his right to a hearing on his parental rights. Download McKenna_v_Miller That case is discussed in this blog post.