A man is fighting to get custody of a newborn baby currently in the NICU of a Florida hospital. The mother died of COVID-19 shortly after the baby’s birth, and Florida law doesn’t recognize her fiancé as the father. He needed help, so he called us. WINK News Investigative Reporter Celine McArthur explains what’s going on.
Baby Carnisha Gardner was given her mother’s name, and it’s being used by the hospital until the little one gets her own name. The man who says he’s the father isn’t listed on the birth certificate, so legally here in Florida, this baby doesn’t have a mother or a father. With today’s technology, you’d think establishing paternity would be a simple and straightforward process. But that hasn’t been the case here.
31-year-old Kerry Elneus feels like he’s living a nightmare.
“Last two months have been the hardest time ever in my life,” says Elneus.
In September, his 30-year-old fiancée Carnisha Gardner died of complications from COVID-19.
“She was a beautiful soul. She was my everything. I called her my queen,” says Elneus.
They met eight years ago.
“It’s a cliché when you say love at first sight, but it really was like that,” says Elneus. “She’s turned me into the man I am today like, we’re both nurses. She told me to strive for greatness.”
Elneus says he proposed to her during a trip to the Bahamas several years ago, and she said yes, but needed time to bring their families together before they tied the knot.
In the meantime, they had a son, Kerry Prince—KP for short.
“He’s autistic,” says Elneus. “He’s four years old. He doesn’t have any words yet. But he’s … when I see him, I see his mother.”
On Valentine’s Day 2021, Elneus says Carnisha surprised him with the news she was pregnant with their second child.
“All I can remember from that day is me almost blowing my back out because I picked up Carnisha and I was just so happy,” says Elneus.
Despite the pandemic—and the threat of the Delta variant—Elneus says Carnisha didn’t get vaccinated because she worried it could be dangerous for their unborn baby.
“When we found out that pregnant women were even able to take the vaccine, she got COVID three days later,” says Elneus.
Carnisha ended up hospitalized with COVID and developed pneumonia.
“That’s when everything kind of went south,” says Elneus. “They (doctors) came into the room around 3 a.m. and said that we’re gonna have to do this emergency C-section because the baby’s heart rate was too elevated and they needed to do this now.”
He was upset and scared.
“I didn’t want to let her go. And you know, she tugged on my shirt. And the last thing she said to me was, was let them do their job. It’s okay,” says Elneus.
Celine: “What was the last thing you said to her?”
Elneus: “I said, okay, and then started crying on her lap. And that was the last time, you know, I saw her awake.”
Carnisha stayed in a drug-induced coma for nearly three weeks before she died. She never met her baby.
“It was very traumatic,” says Elneus.
And Elneus says the trauma continues as he fights to prove he’s the father. I asked why his name isn’t on the birth certificate.
“When they took Carnisha back there, because how they did everything and how they put her in that induced coma, I wasn’t in the room, I was there, but I wasn’t in the room when they delivered,” says Elneus. “And because of that, they put a hold on everything once they put her to sleep.”
That includes establishing his paternity.
“Having children when not married, has certain legal consequences for fathers,” says Matthew Irwin, Men’s Rights Law Firm.
Cape Coral attorney Matthew Irwin is not directly connected to this case but says Elneus’ situation is unusual because his fiancée died. However, there’s something you may not know about Florida law.
“Believe it or not, even if he was on the birth certificate, if the mother were still alive, he would still have no custodial rights to the child, any child born outside of wedlock in the state of Florida,” says Irwin. “And so, until his name goes on the birth certificate, at least, his custodial rights are the same as mine, which is zero.”
To gain those rights, Elneus must put his name on Florida’s Putative Father Registry. It’s for people who claim to be the father of a child born out of wedlock to be officially recognized and…
“… to prevent any adoption against his wishes,” says Irwin.
He also has to file a Petition for Paternity in court and request a DNA test. He did, and says the wait for answers is frustrating and confusing, since he’s trying to take responsibility for his baby, not abandon her.
“I thought that with this situation, they would do push, they will push even harder to make sure that you know, a guardian or a father is established and at a time like this, but everything was red tape and rules,” says Elneus. “I was at the courthouse almost every day.”
Celine: “Why don’t you get a lawyer and get this handled?”
Elneus: “I’m on my second lawyer now. The first lawyer, he was trying different alleys to get in, but unsuccessfully.”
His second lawyer, Tyrone Watson, admits the process isn’t easy.
“I’ve talked to several colleagues about it, and no one seems to know what to do here,” says Watson.
As we’re investigating his case, Elneus gets granted a hearing.
“The judge gave us a Case Management Conference to basically figure out what was going on and what to do, and what the judge is allowing us to do is the judge is allowing us to have a DNA or paternity test,” says Watson.
Elneus is waiting on the hospital to arrange it. But the process doesn’t end there. The court then wants to hear from any person who may have an interest in caring for the child, including Gardner’s parents.
“In law, you always want to have all the parties involved so that other parties that weren’t allowed due process, you know, will not attack it later. So, you want rulings to be final,” says Watson. “So, we’re okay with that.”
What they’re not okay with is the lengthy and convoluted court process, and the lack of protections for Florida fathers. Elneus is sharing his story, so other unwed fathers can learn from his struggle.
“I wanted people to hear my story and see what I’ve been going through and, and hopefully my daughter or my son can see this and see that I fought for them, like I’m going to keep fighting for them.,” says Elneus. “That’s not gonna ever change. But that this is all just some technicality. That’s really messed up.”
If you’re unmarried, having children and don’t want this to happen to you, both lawyers we spoke to say both parents need to get married or execute what’s called an Acknowledgement of Paternity. We will bring you updates on this story as we get them.