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The parent trap

In Saskatchewan, a mother's right to give away her baby trumps the father's right to raise it as his own

Macleans Magazine (national magazine), by Chris Selley, January 31, 2007

It's tough not to feel for Adam Hendricks. Upon learning that his former girlfriend was pregnant and that she intended to grant custody of her child to another couple, he began a valiant battle to prove he was the boy's father and gain his custody. Despite receiving what Judge R. S. Smith referred to as "all assistance short of help" from authorities, the 34-year-old Saskatonian of limited means and chequered past stuck to his guns and lost .

On the face of it, it was no contest. Linda and Dave Turner, the Prince Albert, Saskatchewan couple who agreed to a "custody and guardianship agreement" with Rose Swan, Hendricks' former girlfriend, boast an impressive household: 3.5 acres of land, 12 years of marriage, two university degrees, approximately $100,000 in annual income and no debt. (The names of family members have been changed in accordance with a publication ban.)

By contrast, Hendricks can boast a new - if relatively stable - relationship with "Ruth," a "baby-ready" home in Saskatoon, and a grade eight education. While his life appears to be on an upward trajectory, he admits to a history of unstable relationships with "vulnerable women with drug problems and a history of abuse" - all of which, according to Smith's ruling, have "ended somewhere between badly and very badly."

He is unable to corroborate his claim of a $35,000 annual income, likely because he hasn't filed income taxes in three years, either personally or for his courier business. He declared bankruptcy in 2002. During his relationship with Swan, he supplied her with marijuana in an effort to ease her methamphetamine withdrawal symptoms. And his own record of alcohol abuse is punctuated by a DUI conviction and an assault on Swan that ended their relationship.

None of which, of course, changes his biological relationship to the baby known as Ian Turner. "I wasn't trying to win a father of the year award," Hendricks told the Saskatoon Star-Phoenix . "I just wanted to be a father."

Usually, Canadian parents have to fail to meet a certain standard of care - a very low one, judging by recent evidence - before the government will consider taking their children away. But Hendricks isn't being offered the opportunity to try to raise his son, and that doesn't sit well with those who believe biological relationships are of paramount importance.

"In recent cases, the courts have been far more inferential to parents," Brad Hunter, who practices family law in Regina, told The Globe and Mail.

"In this case, the judge placed limited weight on the biological parent's rights. It certainly is contrary to the trend that had increased the rights of biological fathers."

The president of the Canadian Children's Rights Council, went even further. "It means anybody can challenge you on the basis they can provide a better home for the child," he said. "This was not a test about [Hendricks] being such a poor parent. This was a test of one side being better than another."

McGill University's Margaret Somerville, who has argued in the past for children's rights to know and be raised by their biological parents, takes a different view. And she believes much of the media coverage has missed the mark.

"You can't just take a kid and say 'Is it in the best interests to take this kid away from its father? Okay, we'll order it'," she told Macleans.ca. "You can't do that. It's not how the law works."

"You can't go into best interests until you've decided who's got the primary right of custody," she said. "You have to activate the best interests test through some mechanism."

So in fact, she argues, this was more or less an old-fashioned custody battle with a twist - namely, that if the mother won, she would give the child away to the Turners. "If it was a dispute between the two parents as to whether the mother should get the child or the father, the courts would do a best interests analysis of that, and they'd probably give it to the mother," she said. "Usually they do unless there's some very strong reason not to."

In such analyses, Somerville suggests, blood relation is only one of many factors that need to be considered.

"If you look at the content of what each of them wants, the biological father wants the kid to live with him and the biological mother wants the kid to live with these Turners," she said. "And so in determining who wins - the mother or the father, both biological parents - the courts say what we've got to do is look at the best interests of this child, because that's the test that you apply in custody or adoption proceedings.

University of Saskatchewan Law Professor Greg Walen gave the Globe a somewhat simpler answer. "[Judge Smith] did the right thing at the end of the day," he said. "I think there's an attitude out there that, all things being equal, a child should be placed with a biological parent. But when the scales are so heavy in one favour, it shows a judge is willing to say those ties are not enough. Don't assume that because you are the biological parent of a child you have an automatic right to custody."

Somerville concurs, despite her belief in the biological rights of children. It was still a biological parent who decided what was best for the child, she points out. And though the ruling recommends a one-year period of "familial calm," during which Ian can bond with the Turners free from distractions, Hendricks will thereafter have access to Ian. The Turners are even required to provide him with 30 days' notice if they intend to move.

All of this might be cold comfort for Hendricks, especially since Judge Smith saw in him "the protective instincts of a caring father" and "a willingness to assume the lifelong obligations involved in parenting." But as yet, there has been no talk of an appeal, and it appears he might be willing to live with the judge's decision - one that, for all the controversy, might end up being amenable to all parties.

"I'm open to anything," Hendricks told the Star-Phoenix. "I just want to see my son."