Plaintiff
Ernest and Regina Twigg
Defendant
Robert Mays
Plaintiff's Claim
That the parental rights held by the Twiggs compelled that they be granted custody of 14- year-old Kimberley Mays who was switched at birth with another newborn.
Chief Lawyer for Plaintiff
John Blakely
Chief Defense Lawyers
George Russ, David Denkin (guardian ad litem)
Judge
Stephen Dakan
Place
Sarasota County, Florida
Date of Decision
18 August 1993
Decision
Ruled in favor of Mays, by terminating the Twiggs' legal rights to Kimberly and clearing the way for Robert Mays to adopt her.
Significance
The ruling was one of a series of Florida cases testing children's legal rights. Despite the several decisions made through the 1990s, children's rights remained poorly defined and the subject of much controversy. While this decision supported "the best interest of the child" principle and found in favor ofwhat was considered best for Kimberly Mays, other decisions in the early 1990s were still favoring the rights of biological parents over the best interests of the children where they conflicted. Such contradictory rulings createduncertainty over the rights of biological parents and children's rights.
The emerging legal clout of children, particularly those not in state custodyand stuck in abusive situations and with no adult advocates, became increasingly examined in 1980s. Issues included the right of juveniles to hire attorneys and file motions on their own behalf.
Florida, known for its retirement communities, became a stage for a series ofcases focused on children's legal rights. In the 1989 case of a pregnant 15-year-old Lake County girl seeking an abortion without parental consent, the Florida Supreme Court ruled a child enjoys the same constitutional right to privacy as an adult. In 1992, Gregory Kingsley, an 11-year-old boy, sued the state and his biological parents seeking permission to be adopted by the familyof George Russ. An Orlando judge in 1993 dissolved the rights of Gregory's biological mother after finding her unfit, thus granting Gregory a divorce from his biological parents.
Switched at Birth
Kimberly Mays was born to Ernest and Regina Twigg of Sebring, Florida, in 1978 at Hardee Memorial Hospital in Wauchula, a small rural town in Florida. Somehow her identification tag was switched at the hospital with another girl'sand Kimberly went home with the wrong parents. As a result, the Twiggs raisedthe other girl, Arlena who at ten years of age died during heart surgery in1988. Shockingly, blood tests taken at the hospital revealed that Arlena wasnot related to the Twiggs. The Twiggs, from their Langhorne, Pennsylvania home, began a nationwide search for their biological daughter.
Kimberly had gone home with Robert and Barbara Mays. Barbara later died of cancer and a second marriage of Robert's ended in divorce. The Twiggs' search led them to Robert, a roofing salesman, living alone with the girl he thoughtof as his only child.
For a year the Twiggs, who had seven other children ages 9 to 24, insisted Robert Mays submit to genetic testing. They even moved back to Florida to be near Kimberly. Robert finally relented, but had the Twiggs sign an agreement promising that should Kimberly be their biological daughter, they would only seek visitation rights, not actual custody. The tests indeed proved that Kimberly was the Twiggs' biological daughter. Visits by the Twiggs to see Kimberlybegan in 1990. However, Robert abruptly stopped the visits after only five sessions claiming they were too disruptive to the girl's schoolwork and attitude. For the next several years, the Twiggs fought Robert over Kimberly.
In the meantime, the book The Baby Swap Conspiracy was published. Theauthor, Loretta Schwartz-Nobel, suggested the baby switch at the Wauchula hospital had been intentional. Kimberly was greatly disturbed by the books claims about her father and deceased mother. Kimberly, wanting to stay with Robertwho had raised her for nearly 15 years, saw a television movie about young Gregory Kingsley who had just successfully sued his mother in Florida for termination of parental rights. Kimberly contacted Gregory's new father and lawyer, George Russ, to represent her against her biological parents. Kimberly cited allegations made against Robert by Ernest and Regina Twigg as the reason she wished to terminate relations with the Twiggs and be adopted by Robert. The Twiggs' questioned Kimberly's legal guidance in pursuing such a case and contended no proper basis for a "divorce" case existed since the Twiggs had noprevious custody of Kimberly.
Kimberly filed papers in the Florida circuit court to sever whatever legal ties to her biological parents that Florida law might recognize. The documentswere highly critical of the Twiggs in a personal nature. Among the allegations, Kimberly charged that Regina Twigg "had emotional and psychological problems" for which she had failed to seek counseling. She also claimed the Twiggs"neglected and abused" their other children by letting them go unwashed, underfed, and leaving them with strangers. She also claimed the Twiggs were trying to undermine Kimberly's relationship with Robert Mays.
The Rights of a Child
In June of 1993, Circuit Judge Stephen Dakan in a preliminary ruling found that Kimberly, despite being a minor, had the right to sue her biological parents for "divorce" to keep them from legally removing her from Robert Mays. Dakan wrote that "surely a minor child has the right to assert a constitutionalprivilege to resist an attempt to remove her from the only home she has knownand declare her the child of strangers." Nonetheless, the Twiggs responded by suing Robert Mays for visitation rights.
On 2 August 1993 the trial on the Twiggs' claim began. Judge Dakan was to decide whether the Twiggs, the biological parents, would have visitation rightsto Kimberly, or whether all legal ties between them would be severed.
Kimberly argued the key question to be answered was, "What constitutes a family?" George Russ, in arguing against visitation by the Twiggs, stated, "Biology alone without more does not create or sustain a family." Kimberly, he contended, held a loving, psychological bond with Robert. To legally require herto visit a family she considered strangers would be humiliating to a child.
The Twiggs' countered they at least held a right to visit the child who was their flesh and blood. They stressed that Robert did not live up to the 1978 agreement allowing the Twiggs visitation. This action by Mays had been devastating to the Twiggs. It was as if Kimberly had been taken from them twice.
Despite Mays' assertions that the visitations were upsetting to Kimberly, theTwiggs and their children testified to the contrary that Kimberly appeared "vivacious, bubbly, lovely and sweet." She actually seemed to enjoy her few visits with the family. Kimberly even called Regina "mom" while playing at a miniature golf course. Kimberly even enjoyed a special bedroom set up for her in the Twiggs' seven-bedroom Sebring home, furnished with dolls and a large photograph of Kimberly over the bed.
The Twiggs argued Kimberly's feelings should not be considered. Because of her youth, she likely did not fully appreciate the implications of her decisions. "I really don't think she knows the impact of what she is doing. When shehas her own children and looks back, she may really regret the decision she has made now," argued Regina.
Psychologist Dr. Harold Smith testified on behalf of the Twiggs that ninth-graders still tended to think like children, lacking the maturity to decide important matters such as where to live. He further testified that visitation could cause no harm, that children are normally easily adaptable to such arrangements. Court-appointed psychologist Herbert Goldstein contradicted Smith's opinions. He asserted that visits with the Twiggs could prove devastating to Kimberly. Goldstein also contended Regina Twigg had psychological problems causing her to put her needs ahead of others. Kimberly begged Judge Dakan to endher torment and pleaded for refuge from the Twiggs, not wanting to ever seethem again.
After two weeks of trial, Judge Dakan ruled Kimberly was free to cease any further contact with her biological parents and affirmed that the man who raised her was her legal father. Dakan wrote that Kimberly's psychological relationship with Robert should be considered more important than her biological link to the Twiggs. Dakan wrote, "The effect of this judgment is that the Twiggshave no legal interest in or right to Kimberly Mays; that Robert Mays' legalstatus as the father of Kimberly Mays remains unchanged."
It is clear, Dakan wrote, "that the Twiggs are seen by her as a constant source of danger to her father and to her family relationship." He contended theTwiggs' aggressiveness to obtain visitation rights and their attacks on Robert "created a chasm between Kimberly Mays and the Twiggs that may never be bridged."
Impact
As with Gregory Kingsley before her, Kimberly's story inspired a 1991 made-for-television mini-series Switched at Birth, a book, and a 1993 interview with Barbara Walters on the television program 20/20. Though the trial was over, surprising events related to the case continued to unfold. Later Patricia Webb, a dying woman who worked as a nurse's aide at Hardee Memorial Hospital in 1978, proclaimed that two babies had been deliberately switchedunder doctor's orders. Threats were made to safeguard the secret. Parties tothe Twigg case expressed doubt over the claim since it also contradicted some aspects of Barbara Mays' medical record concerning the diagnosis ofcervical cancer which eventually lead to her death.
In March of 1994, Kimberly Mays moved out of the home she had fought to keep.With her father's signed permission, Kimberly entered a YMCA Youth Shelter in Sarasota, a residential house for runaways and troubled youths. Astonishingly, Kimberly decided to live with the Twiggs.
The Twigg case highlighted the controversies in child custody and children's rights cases. Dakan's decision was remarkable in its recognition of the "psychological parent" over biological parental rights. Also in 1993, in the In re Baby Girl Clausen case, a court ruling went the opposite direction by ruling in favor of the biological parents claiming custody from adoptive parents. In Twigg, the court following "in the best interest of the child" principle, in Clausen it recognized the compelling argumentsin favor of the rights of the biological family. Clausen favored parental rights over children's needs, Twigg chose the opposite.
Ironically, several years later another case arose involving children unknowingly switched at birth. In July of 1998, a three-year-old girl survived a Virginia traffic accident that killed her parents. Hospital tests shockingly revealed she was not their biological child. During the following months while the child was being taken care of by her grandparents, the biological parentsand another child were identified. Visitation procedures between the two families were agreed upon. However, custody arguments soon arose, and by Decemberof 1998, the possibility of lawsuits against the University of Virginia Medical Center in Charlottesville were threatened. The rights of children in suchsituations still remain poorly defined.
Related Cases
Child Emancipation
The term "child emancipation" is often used in conjunction with majority, or the age at which a young person is old enough to make his or her own decisions--and to experience the consequences of those decisions. This age isusually set at 18, and it marks the point when a child is free to leave home,and likewise when parents are no longer compelled legally to support the child. It is also the age at which a young person who commits a crime will no longer be charged as a juvenile (with all the attendant legal protections), butwill be prosecuted as an adult.
Sources
Fast, Julius, and Timothy Fast. The Legal Atlas of the United States.New York: Facts on File, 1997.
Ernest and Regina Twigg
Defendant
Robert Mays
Plaintiff's Claim
That the parental rights held by the Twiggs compelled that they be granted custody of 14- year-old Kimberley Mays who was switched at birth with another newborn.
Chief Lawyer for Plaintiff
John Blakely
Chief Defense Lawyers
George Russ, David Denkin (guardian ad litem)
Judge
Stephen Dakan
Place
Sarasota County, Florida
Date of Decision
18 August 1993
Decision
Ruled in favor of Mays, by terminating the Twiggs' legal rights to Kimberly and clearing the way for Robert Mays to adopt her.
Significance
The ruling was one of a series of Florida cases testing children's legal rights. Despite the several decisions made through the 1990s, children's rights remained poorly defined and the subject of much controversy. While this decision supported "the best interest of the child" principle and found in favor ofwhat was considered best for Kimberly Mays, other decisions in the early 1990s were still favoring the rights of biological parents over the best interests of the children where they conflicted. Such contradictory rulings createduncertainty over the rights of biological parents and children's rights.
The emerging legal clout of children, particularly those not in state custodyand stuck in abusive situations and with no adult advocates, became increasingly examined in 1980s. Issues included the right of juveniles to hire attorneys and file motions on their own behalf.
Florida, known for its retirement communities, became a stage for a series ofcases focused on children's legal rights. In the 1989 case of a pregnant 15-year-old Lake County girl seeking an abortion without parental consent, the Florida Supreme Court ruled a child enjoys the same constitutional right to privacy as an adult. In 1992, Gregory Kingsley, an 11-year-old boy, sued the state and his biological parents seeking permission to be adopted by the familyof George Russ. An Orlando judge in 1993 dissolved the rights of Gregory's biological mother after finding her unfit, thus granting Gregory a divorce from his biological parents.
Switched at Birth
Kimberly Mays was born to Ernest and Regina Twigg of Sebring, Florida, in 1978 at Hardee Memorial Hospital in Wauchula, a small rural town in Florida. Somehow her identification tag was switched at the hospital with another girl'sand Kimberly went home with the wrong parents. As a result, the Twiggs raisedthe other girl, Arlena who at ten years of age died during heart surgery in1988. Shockingly, blood tests taken at the hospital revealed that Arlena wasnot related to the Twiggs. The Twiggs, from their Langhorne, Pennsylvania home, began a nationwide search for their biological daughter.
Kimberly had gone home with Robert and Barbara Mays. Barbara later died of cancer and a second marriage of Robert's ended in divorce. The Twiggs' search led them to Robert, a roofing salesman, living alone with the girl he thoughtof as his only child.
For a year the Twiggs, who had seven other children ages 9 to 24, insisted Robert Mays submit to genetic testing. They even moved back to Florida to be near Kimberly. Robert finally relented, but had the Twiggs sign an agreement promising that should Kimberly be their biological daughter, they would only seek visitation rights, not actual custody. The tests indeed proved that Kimberly was the Twiggs' biological daughter. Visits by the Twiggs to see Kimberlybegan in 1990. However, Robert abruptly stopped the visits after only five sessions claiming they were too disruptive to the girl's schoolwork and attitude. For the next several years, the Twiggs fought Robert over Kimberly.
In the meantime, the book The Baby Swap Conspiracy was published. Theauthor, Loretta Schwartz-Nobel, suggested the baby switch at the Wauchula hospital had been intentional. Kimberly was greatly disturbed by the books claims about her father and deceased mother. Kimberly, wanting to stay with Robertwho had raised her for nearly 15 years, saw a television movie about young Gregory Kingsley who had just successfully sued his mother in Florida for termination of parental rights. Kimberly contacted Gregory's new father and lawyer, George Russ, to represent her against her biological parents. Kimberly cited allegations made against Robert by Ernest and Regina Twigg as the reason she wished to terminate relations with the Twiggs and be adopted by Robert. The Twiggs' questioned Kimberly's legal guidance in pursuing such a case and contended no proper basis for a "divorce" case existed since the Twiggs had noprevious custody of Kimberly.
Kimberly filed papers in the Florida circuit court to sever whatever legal ties to her biological parents that Florida law might recognize. The documentswere highly critical of the Twiggs in a personal nature. Among the allegations, Kimberly charged that Regina Twigg "had emotional and psychological problems" for which she had failed to seek counseling. She also claimed the Twiggs"neglected and abused" their other children by letting them go unwashed, underfed, and leaving them with strangers. She also claimed the Twiggs were trying to undermine Kimberly's relationship with Robert Mays.
The Rights of a Child
In June of 1993, Circuit Judge Stephen Dakan in a preliminary ruling found that Kimberly, despite being a minor, had the right to sue her biological parents for "divorce" to keep them from legally removing her from Robert Mays. Dakan wrote that "surely a minor child has the right to assert a constitutionalprivilege to resist an attempt to remove her from the only home she has knownand declare her the child of strangers." Nonetheless, the Twiggs responded by suing Robert Mays for visitation rights.
On 2 August 1993 the trial on the Twiggs' claim began. Judge Dakan was to decide whether the Twiggs, the biological parents, would have visitation rightsto Kimberly, or whether all legal ties between them would be severed.
Kimberly argued the key question to be answered was, "What constitutes a family?" George Russ, in arguing against visitation by the Twiggs, stated, "Biology alone without more does not create or sustain a family." Kimberly, he contended, held a loving, psychological bond with Robert. To legally require herto visit a family she considered strangers would be humiliating to a child.
The Twiggs' countered they at least held a right to visit the child who was their flesh and blood. They stressed that Robert did not live up to the 1978 agreement allowing the Twiggs visitation. This action by Mays had been devastating to the Twiggs. It was as if Kimberly had been taken from them twice.
Despite Mays' assertions that the visitations were upsetting to Kimberly, theTwiggs and their children testified to the contrary that Kimberly appeared "vivacious, bubbly, lovely and sweet." She actually seemed to enjoy her few visits with the family. Kimberly even called Regina "mom" while playing at a miniature golf course. Kimberly even enjoyed a special bedroom set up for her in the Twiggs' seven-bedroom Sebring home, furnished with dolls and a large photograph of Kimberly over the bed.
The Twiggs argued Kimberly's feelings should not be considered. Because of her youth, she likely did not fully appreciate the implications of her decisions. "I really don't think she knows the impact of what she is doing. When shehas her own children and looks back, she may really regret the decision she has made now," argued Regina.
Psychologist Dr. Harold Smith testified on behalf of the Twiggs that ninth-graders still tended to think like children, lacking the maturity to decide important matters such as where to live. He further testified that visitation could cause no harm, that children are normally easily adaptable to such arrangements. Court-appointed psychologist Herbert Goldstein contradicted Smith's opinions. He asserted that visits with the Twiggs could prove devastating to Kimberly. Goldstein also contended Regina Twigg had psychological problems causing her to put her needs ahead of others. Kimberly begged Judge Dakan to endher torment and pleaded for refuge from the Twiggs, not wanting to ever seethem again.
After two weeks of trial, Judge Dakan ruled Kimberly was free to cease any further contact with her biological parents and affirmed that the man who raised her was her legal father. Dakan wrote that Kimberly's psychological relationship with Robert should be considered more important than her biological link to the Twiggs. Dakan wrote, "The effect of this judgment is that the Twiggshave no legal interest in or right to Kimberly Mays; that Robert Mays' legalstatus as the father of Kimberly Mays remains unchanged."
It is clear, Dakan wrote, "that the Twiggs are seen by her as a constant source of danger to her father and to her family relationship." He contended theTwiggs' aggressiveness to obtain visitation rights and their attacks on Robert "created a chasm between Kimberly Mays and the Twiggs that may never be bridged."
Impact
As with Gregory Kingsley before her, Kimberly's story inspired a 1991 made-for-television mini-series Switched at Birth, a book, and a 1993 interview with Barbara Walters on the television program 20/20. Though the trial was over, surprising events related to the case continued to unfold. Later Patricia Webb, a dying woman who worked as a nurse's aide at Hardee Memorial Hospital in 1978, proclaimed that two babies had been deliberately switchedunder doctor's orders. Threats were made to safeguard the secret. Parties tothe Twigg case expressed doubt over the claim since it also contradicted some aspects of Barbara Mays' medical record concerning the diagnosis ofcervical cancer which eventually lead to her death.
In March of 1994, Kimberly Mays moved out of the home she had fought to keep.With her father's signed permission, Kimberly entered a YMCA Youth Shelter in Sarasota, a residential house for runaways and troubled youths. Astonishingly, Kimberly decided to live with the Twiggs.
The Twigg case highlighted the controversies in child custody and children's rights cases. Dakan's decision was remarkable in its recognition of the "psychological parent" over biological parental rights. Also in 1993, in the In re Baby Girl Clausen case, a court ruling went the opposite direction by ruling in favor of the biological parents claiming custody from adoptive parents. In Twigg, the court following "in the best interest of the child" principle, in Clausen it recognized the compelling argumentsin favor of the rights of the biological family. Clausen favored parental rights over children's needs, Twigg chose the opposite.
Ironically, several years later another case arose involving children unknowingly switched at birth. In July of 1998, a three-year-old girl survived a Virginia traffic accident that killed her parents. Hospital tests shockingly revealed she was not their biological child. During the following months while the child was being taken care of by her grandparents, the biological parentsand another child were identified. Visitation procedures between the two families were agreed upon. However, custody arguments soon arose, and by Decemberof 1998, the possibility of lawsuits against the University of Virginia Medical Center in Charlottesville were threatened. The rights of children in suchsituations still remain poorly defined.
Related Cases
- Padgett v. Department of Health and Rehabilitative Services, 577 So.2d 565 (Fla. 1991).
- Kingsley v. Kingsley, 623 So 2d 780 (1993).
- In Re Baby Girl Clausen, 442 Mich. 648, 502 N. W. 2d 649 (1993).
- Smith v. Langford, 255 So.2d 712 (Fla. 1st DCA 1997).
Child Emancipation
The term "child emancipation" is often used in conjunction with majority, or the age at which a young person is old enough to make his or her own decisions--and to experience the consequences of those decisions. This age isusually set at 18, and it marks the point when a child is free to leave home,and likewise when parents are no longer compelled legally to support the child. It is also the age at which a young person who commits a crime will no longer be charged as a juvenile (with all the attendant legal protections), butwill be prosecuted as an adult.
Sources
Fast, Julius, and Timothy Fast. The Legal Atlas of the United States.New York: Facts on File, 1997.
Further Readings
- Gregory, John De Witt, Peter N. Swisher, and Sheryl L. Scheible. Understanding Family Law. New York: Matthew Bender, 1993.
- Krause, Harry D., ed. Child Law: Parent, Child, and State. New York: New York University Press, 1992.
- Mayoue, John C. Competing Interests in Family Law: Legal Rights and Duties of Third Parties, Spouses, and Significant Others. Chicago: AmericanBar Association, Section of Family Law, 1998.
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