Nathaniel’s appeal

It’s every adoptive parent’s worst nightmare. After raising baby Nathaniel since the day he was born, a Nevada County court ruled that Brad and Jennifer Ballard had to give the baby to his paternal father, Casey Johnson, who claimed that he hadn’t known the child was being put up for adoption.

And so, last January, 11 months after Nathaniel’s birth, the Ballards handed him to the pastor of their church, the Grass Valley Assembly of God. They kissed Nathaniel goodbye and watched the pastor take him out of the room to give to Johnson. They haven’t seen Nathaniel since.

Six months later, the Ballards are still embroiled in a legal battle to get Nathaniel back. They have filed an appeal and are working with California legislators to change adoption laws.

Meanwhile, the gaping hole in their family caused by Nathaniel’s absence has not even begun to heal.

“In some ways, this is harder than death because there’s no closure,” said Brad. “Nathaniel’s not dead, but we don’t get to see him anymore. And it’s worse because he’s not in what we consider a good environment. Even the fact that everyone in the house smokes is hard for me.”

The Ballards are constantly reminded of Nathaniel. Jennifer has been in counseling to deal with her grief. Brad broke down at PG&E the other day because he went there to get power for their new home, which they originally bought because they needed room for their growing family.

But perhaps the person most affected by the situation is the Ballards’ 6-year-old adopted daughter, Riley, who embraced Nathaniel as both her brother and best friend. When Nathaniel left, Riley’s sense of security was threatened.

“She was asking, ‘Is my birth dad going to do this to me, too?'” said Brad. “Of course, everyone explained to her that wasn’t possible. But we also told her the law was on our side, so now I don’t know what to tell her.”

At first, adopting was easy for the Ballards. Though many families wait for years for a baby to become available, both Nathaniel’s and Riley’s birth mothers sought out the Ballards through friends. In Nathaniel’s case, the Ballards found out about the baby only a few weeks before he was born.

Because of the short timeframe, they had trouble reaching Nathaniel’s father, who was moving around during the pregnancy. Johnson was never served with adoption papers.

Still, it didn’t seem to be a problem until the day of Nathaniel’s birth, when Johnson showed up at the hospital. The Ballards didn’t know that the birth mother had an order to bar Johnson from seeing the baby.

“It was bizarre,” said Brad. “My wife was in a locked room with Nathaniel and security guards, and [Johnson] was on the outside trying to see his son. I think his not being allowed access to Nathaniel at the hospital is one of the reasons he started pushing for custody.”

According to Johnson’s lawyer, John Edwards, the birth mother ran away, and Johnson couldn’t find her to help support the pregnancy. He had no idea about the adoption.

“When he found out about it, he immediately tried every possible move to get his child back,” said Edwards.

Under California law, the Ballards had a good chance of keeping Nathaniel. Johnson had two felony convictions and was married to another woman when he fathered Nathaniel. The Ballards also contend that he didn’t have a steady home or work record. Because Johnson didn’t support the birth mother during the pregnancy, he should have had to prove that living with him was in Nathaniel’s best interest.

Instead, the judge, Carl Bryan, said the Ballards had to prove that it would be detrimental for the child to be returned to Johnson.

“There’s a tendency to assume that if the birth parent wants a child, they should have the child,” said adoption attorney Alison Foster. “That’s not actually the law in California. If a father hasn’t made any effort to take care of the mother, he can’t come in at the last moment and say, ‘Now I want to be a dad.’ The problem is that some judges are not aware of the law and are biased toward the biological.”

But Edwards believes that the Ballards were the ones who had no right to the child.

“They are trying to portray themselves as the victims here, but they obtained the child without the parent’s consent and fought the father from taking the child for almost a year,” he said. “Then, they claim they have a right to him by basically saying, ‘Finders keepers.'”

To help prevent such situations from happening again, the Ballards created Nathaniel’s Law, which was sponsored by California Senator Sam Aanestad, R-Nevada City. Under the proposed legislation, adopted children in California would have more rights in custody cases. Like with foster children, an independent lawyer would represent the child, and social workers would investigate all possible homes the child might live in—including those of relatives and significant others. Then the information would be factored into the judge’s decision.

Nathaniel’s Law was killed for the year after the Academy of California Adoption Lawyers, a nonprofit industry association, lobbied against it. The group said that although it thought the bill was a good idea, it would put a financial burden on the adoptive parents, who would have to pay for the child’s independent attorney.

“My response to that is why don’t they lower their fees?” said Darlene Woo, a child advocate who helped develop Nathaniel’s Law. “It seemed like all their objections were based on money.”

Nathaniel’s Law will be reintroduced next year.

The Ballards have no idea where Nathaniel is living and have no way of contacting him. Their appeal probably will go to court in September.

But even if they win, the adjustment will be hard on Nathaniel.

“One of the things that infuriated everybody is that in a case where the baby has been in the custody of a non-parent since birth, he is supposed to stay with that family throughout the appeal, but that didn’t happen," said Brad. "So, now, if we do win, Nathaniel loses two families."