Neal, Henry, and the Statute of Limitiations

alwaysatrombonist’s asked you: Yes, could you please post more about Arizona’s statute of limitations and Neal? Because legal-related stuff has been really important to fandom in the past and I feel like this will be important.

Sure thing. I’m going at this purely from an American law perspective and assuming that FTL law will have no weight in Storybrook (which I don’t think is actually the case with the show). I’m putting a cut because I have a total inability to keep things brief. Also, this post is a continuation of this thread.

For a little bit of background, adoption law is one of the very few areas of American jurisprudence where the rights of men are put below just about everyone else. Generally, the descending order of importance of rights in an adoption goes child, mother, adoptive parents, father, and then any other family member or guardian who might try to claim the child.

Adoption law falls under the heading of family law, which is governed by the states. This means that each state’s rules are a little bit different. The state in which the adoption took place (it was likely Arizona because Emma couldn’t have signed away her parental rights anywhere else) governs. Thus, even if this theoretical court battle between Regina, Emma, and Neal were to take place in Maine, Arizona’s rules would dictate.

The first statute we need to look at is Arizona statute §8-106(A)(2), which deals with adoption law. This law only mandates consent of the father if he was married to the mother at the time of the birth/pregnancy OR if he has established paternity. Neal doesn’t fit into either category because he failed to established paternity in the requisite time. To explain that, we need to jump to a different section in the same statute.

Arizona statute §8-106(J) is where the statute of limitations comes in. It states that if a potential father fails to file a paternity action within 30 days of the child’s birth, he “waives his right to be notified of any judicial hearing regarding the child’s adoption or the termination of parental rights and his consent to the adoption or termination is not required.”

On its face, this statute throws out any suit Neal (or Rumpel by proxy) might try to bring. 

However, there’s an additional element here, and that is Neal’s lack of notification.  Based on his exchange with August, it seems clear that he had no idea Emma was pregnant. In fact, Emma probably didn’t even know she was pregnant the last time she saw Neal, so the only fault that can be placed on him for not knowing is that he abandoned his girlfriend. 

How would a lack of notification factor into this?

In Arizona, it wouldn’t be in Neal’s favor. This is for a few reasons. First, there is no court in the country that would find a felon who ran from the law a more fit parent than either Regina (who likely has a spotless criminal record) or Emma (who served her time and has been in Henry’s life for the past year). 

Additionally, Arizona courts are especially harsh on fathers who attempt to establish their paternity. I was able to find multiple cases that backed this up, but the most stunning to me actually took place in 2008. In Marco v. Sean, a biological father was one day late (meaning day 31 instead of 30) in filing a paternity petition after getting the run-around from the biological mother as to her location, plans, and the birth date of the child. Yet, the Arizona court still determined that he was too late and thus had no say in the adoption. Like I said earlier, adoption laws are harsh when it comes to the biological father. Additionally, a Maine court would be bound by this ruling because it directly interprets Arizona law.

Simply, a court would likely determine that Neal was too late in filing a petition for paternity by the time Henry is 10 years old. Ignorance of paternity is not an excuse in Arizona.