OK Supreme Court: Facebook message is insufficient notice to inform of pregnancy

October 22, 2014

No facebookIf you believe that most judges have grown accustomed to electronic forms of communication, I’ve got some news for you: the Oklahoma Supreme Court just ruled that a Facebook message is insufficient for a pregnant woman to legally notify the putative father of the pregnancy.

The punchline of the ruling is that the parental rights of the father in the case in question could not be properly terminated under the Constitution, and thus the adoption of the child in the case is invalidated.

Here’s a quick rundown of the facts of the case:

Between August 2011 and October 2011, Mother and Father were involved in a sexual relationship (according to Father’s testimony, it was not romantic).  Mother became pregnant as a result of this relationship, and gave birth to the child on June 21, 2012, and terminated her parental rights on August 14, 2012.

Mother contacted Father via Facebook while she was still pregnant to inform Father of her pregnancy and that she intended to give the baby up for adoption (she was seventeen years old when she became pregnant).  The father claims that he never saw this message until after he received a summons in a guardianship proceeding, and went to contact Mother on Facebook about it.  He testified he did not know how old the message was.

The child went home with the adoptive parents from the hospital, and has been in their custody ever since.

The court majority found that the entire case boiled down to whether Father was given sufficient notice of the pregnancy and whether he then had an opportunity to advocate his interest in the case.

The majority specifically stated that “[t]his Court does not believe that attempts to provide notice via Facebook comport with the requirements of due process.”  As such, it concluded that Father was not given sufficient notice of the pregnancy to satisfy the constitutional requirements.

Here’s the first problem with the majority’s reasoning: notice requirements in parentage and adoption proceedings are different than nearly every other area of law, in that most, if not all jurisdictions place the burden on the father to determine if any of his sexual encounters could have resulted in pregnancy.  In other words, the law treats the father as though he should be fully aware that his sexual encounters may lead to a pregnancy.

Indeed, Oklahoma law even states that, in a case such as this where the father claims that he was denied sufficient notice of the child or opportunity to exercise his parental rights,

such father or putative father must prove to the satisfaction of the court that he made sufficient attempts to discover if he had fathered a minor or made sufficient attempts to exercise parental rights and duties toward the minor prior to the receipt of notice.

Furthermore, the Oklahoma Legislature even explicitly stated its purpose in creating this adoption code was, in part, to

affirm the duty of the biological father of a child who is to be born or who is born outside of marriage to exercise his parental responsibilities for the child. This includes the duty to inform himself about the existence and needs of any such child and to exercise parental responsibilities toward that child even before birth.

Aside from the fact that Father knew how to contact Mother (through Facebook), Mother visited Father at his place of work in December of 2011, when she was approximately two months pregnant, and Father didn’t inquire about the possibility of her being pregnant (admittedly, though, Mother didn’t bring up this subject either, but the law places the burden on the father, not the mother).

The point is that Father knew how to contact Mother if he truly wanted to inquire about the pregnancy, but he never did.

Apart from misconstruing Oklahoma law, the majority also erred in how skeptically it views Facebook, labeling it as “unreliable.”

However, as the dissent pointed out, Facebook is no less reliable than other forms of electronic communication, which themselves are no less reliable than traditional, non-electronic communication forms:  “face-to-face discussions can be denied; letters can remain unopened; and faxes can be lost.”

To be sure, there are far more methods of tracking the delivery and receipt of a Facebook message than other forms of electronic communication: Facebook tracks whether the recipient receives the message and even whether that message is read.

In addition, and certainly of central relevance to this case, Facebook records the time and date that all messages are sent, received, and seen by the recipient.  In other words, Facebook knows – and typically informs the message’s sender – whether the recipient has read the message and the time and date at which the message was read (or at least opened) by the recipient.

Whether this information was ascertained and presented to the court is unclear, as is whether such information would have changed the majority’s views about Facebook.

What is clear, however, is the adverse impact that this ruling will likely have on the child, who has been living with her adoptive parents since the moment she left the hospital 28 months ago.

Hopefully, other courts refrain from following the Oklahoma Supreme Court’s lead, and instead look at electronic forms of communication such as Facebook in a more realistic light.