Court grants baby Chance's father sole custody

Adrian Harden has been granted sole custody of his son, Chance, who was born shortly before his mother, Adriana Smith, was taken off life support in June.

Key Takeaways:

• Adriana Smith was nine weeks pregnant when she suffered a medical emergency, was declared brain dead, and was put on life support.

• Due to her pregnancy, Smith was kept on life support because of the state's advance directive law, which requires that a pregnant woman be kept on life support unless her baby is not yet viable and she doesn't have an advance directive in place to remove her from life support.

• Because Smith and Harden were not married, Harden was not given automatic parental rights and had to sue Smith posthumously to gain those rights.

The Details:

On December 2, Judge Latisha Dear-Jackson issued an order awarding Harden sole legal and physical custody of his son, Chance, who remains in the hospital. Harden was not married to Chance's mother, Adriana Smith, who was declared brain dead when she was nine weeks pregnant with Chance. Because they were not married, Harden was not given automatic parental rights and had to posthumously sue Smith to gain custody despite a DNA test proving he is Chance's father.

According to the law firm representing Harden, Better Law, "The father of a child born out of wedlock who has neither married the birth mother, legally adopted the child, or received a final paternity order, must file for a Petition of Legitimation for custody or visitation rights."

"Mr. Harden did not have any legal rights here in Georgia," said attorney Melaniece Davis during a press conference. "If a father has a child with a woman he is not married to, that father has no legal rights whatsoever."

She added, "Mr. Harden did not have any legal rights to his biological son Chance Harden. He had no rights whatsoever, even in a tragic situation where the mother has passed. So while he's worrying about the uncertain future of his medically fragile baby, Mr. Harden is confronted with the fact that legally, he could potentially not be able to take his baby home."

Better Law attorneys filed an emergency petition for custody in DeKalb County Superior Court in August. On September 3, a temporary order granted Harden legal rights and temporary sole custody, but the new order solidifies that he has sole custody of his son.

“I just want to make sure he got everything he needs, whatever. For all the men that actually care for their child, that’s all we want. To make sure he got the best and knows that I care for him,” Harden said. He added, "He's getting better. My boy, he is strong."

Harden is now speaking out against the law that prevented him from being given automatic parental rights to his son.

The Backstory:

In February, Smith went to Northside Hospital with a severe headache. She was given pain medication and sent home. However, the next morning, Harden awoke to her gasping for air and making gurgling sounds. He rushed her to Emory Decatur, and she was transferred to Emory University Hospital, where she had worked as a nurse. A CT scan revealed she had multiple blood clots in her brain. and she was ultimately declared brain dead and put on life support. Her mother, April Newkirk, said that if Northside Hospital had run a CT scan or other tests, Smith's death could have been prevented.

Because she was nine weeks pregnant, the Georgia Advance Directive for Health Care Act of 2007 prohibited her life support from being removed, even though Chance was not yet viable, because Smith did not have an advance directive stating that she would want to be withdrawn from life-sustaining measures. 

Harden did not speak publicly during this time, but other members of Smith's family, including Newkirk, said they wished they had been given the choice of whether or not to take Smith off life support, yet they also said they wanted Chance to survive.

In May, Newkirk announced they were naming the baby Chance "[b]ecause to me, he's getting a second chance."

Chance was born between 25 and 26 weeks gestation on June 13 via C-section, weighing one pound, 13 ounces. Smith's life support was turned off on June 17.

The most recent update on Chance's GoFundMe page states that he is now 11 pounds and will be moved to a different hospital.

Why it Matters:

Children have a right to be raised by their biological parents when possible. Harden said he is "so proud of his girl," Adriana, who "would have loved to have seen" Chance. "I just look at him, I see his mama," he said. "He's got a lot of life and a lot of spirit."

He hopes his story will help change the laws. Davis explained, "We are most certainly hoping that this tragic story and this landmark legitimation case open up a conversation with legal minds, the community, and our legislators under the gold dome. It is our desire for change in our laws, and we're hoping that our case is the catalyst for that. We think it is very, very, very unfortunate, and it hurts children, it hurts parents, and it hurts communities that these laws put unnecessary legal barriers against unwed fathers."