Child Custody Suits: Litigating Heartbreak

Article excerpt

THE WIDELY publicized "Baby Jessica" case gripped the emotions of the nation as the natural parents (Dan and Cara Schmidt) of Iowa sought vigorously to regain custody of their daughter from the adoptive parents (Jan and Roberta DeBoer) of Michigan. The latter had been ordered to return the child to the Schmidts by the Iowa courts. Confronted with this adverse decision, the DeBoers successfully persuaded a Michigan state trial judge to enter a custody order in their favor, only to have the Michigan Court of Appeals declare that the court in Michigan was without jurisdiction to act. The publicity heightened as the judicial remedies and appellate procedures in Michigan were being exhausted. The crescendo of emotions and publicity abruptly was halted when the Michigan Supreme Court entered its order on July 2, 1993, requiring that "Baby Jessica" be returned to her biological parents.

The characterization given by virtually all of the media to the decision of the Michigan Supreme Court was that it ruled "in favor of" the natural parents and "against" the adoptive parents. Legal scholars and family law attorneys knew, however, that the Michigan Supreme Court actually did neither. It simply deferred the custody decision to Iowa--the exclusive forum for jurisdiction.

In short, the Michigan Supreme Court did not decide who should win or lose custody; rather, it correctly decided which court should resolve the custody issue. Since the Iowa courts already had ruled in favor of the Schmidts and the DeBoers were retaining possession of "Baby Jessica" in defiance of the Iowa court orders, the effect of the Michigan Supreme Court's decision was one that turned out to be in favor of the biological parents. Nonetheless, that decision was not on the merits of the custody question and involved an important jurisdictional analysis mandated by a Federal law--namely, the Parental Kidnapping Prevention Act (PKPA) of 1980.

Had the Michigan Supreme Court permitted the exercise of jurisdiction by a Michigan court, the express provisions of the PKPA would have been violated. The decision also would have been typical of a very unsettling trend of court decisions seen prior to 1980 that promoted widespread conflict and kidnapping of children by losing custody litigants in search of alternative forums that might be more favorable to them in resolving the custody issue.

Consider, for example, if the Michigan courts had ordered custody be vested in the adoptive parents. Then, the biological parents would have had the incentive to seize "Baby Jessica" and return to Iowa, where they had the benefit of their own favorable custody order. This, in turn, would encourage the adoptive parents to seize the child back and seek refuge again in Michigan.

Further consider the scenario where, upon receiving the news of the Michigan Supreme Court's decision, the adoptive parents might have decided to relocate to Louisiana, Arizona, or Alaska and seek out yet another state court that might rule favorably for them. Such a system of laws, if permitted, would lead to the de facto rule that possession is not just nine-tenths of the law, but the ultimate deciding factor. A losing custody litigant could search endlessly for some court in some state somewhere that would be inclined to rule favorably. That ruling would prevail so long as the opponents did not regain possession of the child and return to their own forum.

This is not a remote hypothetical discussion. Shortly before enactment of the PKPA, between 25,000 and 100,000 youngsters had been kidnapped by losing custody litigants in search of a more favorable disposition on the custody question.

Whatever quarrel one might have with the result in the "Baby Jessica" case, there can be no doubt there is a greater evil in a system of laws that grants victory to the party who better is able to kidnap a child and hide from the other contestants. Seize-and-run tactics not only are disruptive to youngsters' lives, but also cut off indefinitely the ability of parties with continuing ties to them to maintain relations with the children. …

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