Child Custody

ADOPTION can provide courts with another source of custody disputes. Most state laws require that both birth parents give consent before their child can be adopted. Such a law was at issue in a custody battle over Jessica DeBoer, who was born in Iowa in 1991 and adopted by a Michigan couple. DeBoer's birth mother later married DeBoer's birth father, and they sought and won custody of DeBoer in Iowa, based on the father's never having consented to the adoption. The adoptive parents then won in the Michigan courts, based on an analysis of the child's best interests. On appeal, the Michigan Supreme Court reversed, declaring that under federal law, Iowa had jurisdiction in this case, and that unless a child's birth parents are unfit, an unrelated person may not retain custody. The U.S. Supreme Court agreed, in DeBoer by Darrow v. DeBoer, 509 U.S. 1301, 114 S. Ct. 1, 125 L. Ed. 2d 755 (1993), and Jessica was returned to her birth parents.

Family ties are often a compelling factor for judges even when birth relatives other than parents are involved. For example, the Minnesota Supreme Court ruled in 1992 in Matter of Welfare of D. L., 486 N.W.2d 375 (Minn.), that the biological grandparents of Baby D., a three-yearold African-American, should be granted custody, rather than the white foster parents who had raised her from birth. The case convinced the Minnesota Legislature to change a law (M. S. A. § 259. 28, subd. 2) providing for same-race preference in adoptions, but race was not the deciding factor in the case: The court based its decision on reuniting Baby D. with her birth relatives and her siblings, of whom the grandparents also had custody.

Critics of removing children from parents and from parental figures to whom they have become attached argue that the rupture is too difficult to overcome and that children suffer from imperfect child-custody laws. The National Conference of Commissioners on Uniform State Laws approved in 1994 a model adoption statute, which was designed to reduce the chances that custody will be changed after children have become attached to parent figures. The model statute provides guidelines for birth parents and adoptive parents to follow before an adoption in order to prevent custody battles afterward.

In the 1990s, courts appeared to place more importance on child-caretaker attachment and in some cases even denied custody to birth parents in order to uphold this attachment. A Florida judge ruled in 1993 that 14-year-old Kimberly Mays could choose not to see her birth parents, from whom she had been separated at birth by a hospital error (Twigg v. Mays, 1993 WL 330624 [Fla. Cir. Ct.]). The decision was based on the length of time she had spent with her nonbiological family and her attachment to it.

In 1978, the U.S. Supreme Court ruled that the adoption of a child by the child's stepfather did not violate the DUE PROCESS rights of the child's unwed biological father. In Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978), the Court decided that the adoption was in the best interests of the child, and wrote that because that particular biological father had participated very little in rearing the child, he did not have the same rights under the Equal Protection Clause that a more involved father would have.