Hedge funds versus Hollywood as upswing in fathers’ rights issues collides with evolving doctrine on ownership of genetic material. Feelings and technology are changing so fast your clients need to get everything in writing.
While the public record is a little cloudy on what 47-year-old movie star Jason Patric agreed to in 2009 when he helped a then-ex-girlfriend conceive, he evidently changed his mind once the baby was born.
Unfortunately, the terms he apparently set up at the beginning to protect his assets don’t leave much room for him to renegotiate now.
A California family court agreed last year, denying Patric custody rights now that he and the child’s mother have drifted apart.
The appeal hearing starts this week but all of this could have been avoided if he’d been both clear about what he wanted the beginning and flexible enough to make sure the lawyers built in opportunities to rethink as needed.
It started so well
Patric used to date Danielle Schreiber before they broke up and she decided to have his baby anyway. They remained friends so he donated his genetic material to the cause.
However, he reportedly made clear that she couldn’t ask him for financial support and that she’d be raising the baby on her own.
The prospect doesn’t seem to have bothered her. She’s the daughter of a prominent Connecticut lawyer and the sister of a blue-ribbon hedge fund manager.
But whether she ever needed extra cash to raise the now-four-year-old baby, a deal is a deal.
It’s also the kind of deal that the heads of far wealthier families fight hard to get their kids and grandkids to sign before a serious or casual romantic attachment complicates the estate plan with an added heir.
And it’s definitely the kind of arrangement that traditional sperm banks and surrogate mother agencies mandate in order to ensure that nobody decides to make a claim on the baby after all.
It turns out having the baby brought Patric and Schreiber back together for a few years, but when they broke up again, he decided he wanted joint custody.
Two years of courtroom drama and a restraining order later, he’s still making his case as wronged dad. She’s defended herself impressively so far.
Where natural rights break down
The problem that sperm donors who want to become dads face is the reverse of what makes adoptive parents so special and child abandonment stories so sad.
Genetic material makes a child but doesn’t automatically create a parent. Even in California, where the laws on sperm donations are ambivalent at best, the default scenario is that the “natural” father has no rights.
He has to be willing to publically acknowledge the child as his, essentially adopting him or her and accepting the rules of support and inheritance.
In that kind of scenario, it’s the acknowledgement, adoption and acceptance that matter – genetic paternity is practically a side issue here.
Even though Patric is technically young Gus’s biological father, that connection doesn’t grant him any natural rights in California.
He’s on much stronger ground when he talks about all the great things he did for the baby when he was essentially acting in the role of common-law adoptive dad.
Unfortunately for his case, every time he uses his situation to lobby for wider sperm donor rights, the adoptive argument recedes a little too far into the background.
He doesn’t want to promote new rules for informal adoptive dads. He seems to primarily consider himself a sperm donor who fell in love with the baby.
What about egg donors? What about women who develop an emotional attachment to an unrelated fetus they carry on behalf of another couple?
The traditional take on these topics is that the relationship ends with the medical procedure. Challenging it now opens up that established practice to added questions as well as risks for the people who ultimately pay the bills.
Granted, Schreiber’s situation is especially complicated because she not only knew her sperm donor before getting his genetic material but also had a romantic relationship with him afterward.
But other single moms and couples simply get the people they work with to sign over all rights to the child. The standard sperm donor contract is explicit on this front and is unlikely to change no matter how successful Patric’s lobbying efforts are.
A contract can explicitly relinquish natural rights like parenthood. And ironically enough, the standard sperm donor contract looks a lot like what Patric and Schreiber reportedly agreed on at the beginning.
Specifically, the contract eliminates the possibility that the donor will be forced to provide financial support for the child.
If Patric is arguing that he now wants to help pay the bills, it’s unlikely that anyone would challenge that unless the offer came with strings attached.
Schreiber evidently felt there were too many strings attached because she got a restraining order late last year to keep him from communicating with her at all.
Bridging the gap
Whether your clients would sit on her side of the aisle or his, the lesson here is clear. In any remotely unorthodox family arrangement, get the rights and the responsibilities in writing.
The moment that arrangement changes, amend the documents to reflect the new circumstances. If, for example, the sperm donor starts associating with the family, that’s the time to spell out what exactly his relationship entails.
It sounds like a lot of work, but remember: non-traditional households need to do a lot of the heavy lifting on their own that “tradition” already represents.
And those that vary from the emerging mainstream of non-traditional households need to reinvent the wheel or run the risk of the arrangement falling apart.
This means that truly dynastic planning needs to evolve to keep up with science and society.
A generation ago, it would have been hard to imagine sperm donors so moved by the fact of their fatherhood that they lobby to get joint custody.
But with Olympic skier Bode Miller unsuccessfully suing an ex-girlfriend for control of a baby he initially didn’t want, it’s clear that times are changing.
Give your clients the freedom to change with them and a structure to protect their long-term interests.