PROVO The American Fork couple who want to finalize an adoption are breathing a sigh of relief for now but realize their fight to keep baby Harvey is far from over.
"It's a battle," said Cally Nielson, 24.
Fourth District Judge James Taylor declined to enforce an Idaho court order that would have placed the 7-month-old baby with the birth father, Matt Tenneson, 20, of Coeur d'Alene.
Attorneys representing the Nielsons, Tenneson, the birth mother, and the adoption agency LDS Family Services, appeared in a court hearing Friday afternoon in Provo.
Taylor's ruling means baby Harvey will remain with the Nielsons, at least for now. More court hearings will be scheduled.
In court Friday, Cally Nielson sat holding back tears while her mother, Anette Stephens, of Highland, put her arm around her. Jed Nielson, 26, sat leaning forward on the bench, his hands clenched together.
The Nielsons' attorney, Larry Jenkins, told the judge he believed he should refuse to confirm the Idaho custody order and leave baby Harvey with the Nielsons for two reasons: first, the Idaho court lacked jurisdiction over the baby; and second, the Nielsons weren't served notice of the Idaho proceedings or allowed to participate.
Taylor ruled as he did Friday because neither the Nielsons nor LDSFS were notified of the court proceedings in Idaho, nor were they allowed to participate.
"All I want is a fair trial a right to be heard," Cally Nielson said.
However, regarding the jurisdiction issue, Taylor said he will have to come back to that. He said he intends to take evidence in a future hearing and make an informed decision.
Tenneson's attorney, Brent Chipman, said Tenneson has legal rights to his son. He argued against using Utah as an appeals court. "We tried in Idaho and couldn't do it, so now we're going to try here?" he said.
Jenkins said he felt the judge's ruling was appropriate.
"It was really the only way he could go, based on what the law says," Jenkins said. "The Nielsons are doing a good job taking care of Harvey and they are going to be allowed to continue to do that at least in the short run."
Cally's father, Flint Stephens, of Highland, said, "It's nice to win one finally. We'll take any victories we can get."
Neither Tenneson nor the birth mother, Cammie Knight, 19, of Coeur d'Alene, appeared in court Friday.
After hearing of the judge's decision Friday evening, Knight said, "I'm happy. I was really worried."
Knight flew into Utah County on Thursday and spent a couple hours visiting Harvey at the Nielson's home. She said she plans to fly back to Coeur d'Alene today.
Tenneson declined to comment when contacted at his home in Idaho on Friday evening.
The Nielsons have had baby Harvey since July. The adoption was never finalized because the birth father's attorney showed up at the adoption hearing, shortly after the baby's birth, to contest the adoption.
In December, in Kootenai County District Court, Idaho Magistrate Barry E. Watson ruled Tenneson would have temporary primary custody of the baby with Knight having visitation rights.
Watson's ruling stemmed from an earlier court decision by Idaho Magistrate Robert Burton who ruled Tenneson has some parental rights. Burton ruled as such despite the fact Tenneson hadn't filed for his paternal rights during the required time period.
"That is the bottom line," Cally Nielson said. "The law clearly says he needed to do that before the baby was placed."
Burton's ruling is being appealed by LDSFS. This appeal could go to the Idaho Supreme Court, according to LDSFS attorneys.
Attorney David McConkie, representing LDSFS, said he believes there will be a hearing in magistrate court regarding the appeal in early February in Idaho.
"This child's whole life has been with his adoptive family," McConkie said in court Friday. "It would be a tragedy to tear the baby away from them. He has known no other parents. The interest of the child does have to be considered."
Chipman argued that the longer Harvey stays with the Nielsons, the longer the birth father misses out on important bonding time.
"Return the child to his natural parents who, for seven months of the baby's life, have not been allowed to bond with their child," Chipman said. He pointed out that Tenneson, who lives with his parents, has a nursery all ready for the baby in the home.
But Taylor said he doesn't like to move any child of any age back and forth. "If I've got to change custody, I would want to do it once," he said.
After the hearing, in an interview with the Deseret Morning News, Cally said she was "perfectly willing" to allow Tenneson to visit Harvey, and she can send him photos. "I always have been willing," she said.But Cally said she wouldn't want Harvey to be flown to Idaho for a weekend. "I'd prefer Matt come here because I think it would be less traumatic on Harvey. It's a hard thing for a kid to be away from their mom for a weekend," she said. "What is best for Harvey is what we need to do."
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