It’s been several months since the Supreme Court decided Adoptive Couple vs. Baby Girl. It’s a case I had written about a number of times over the years, though I have yet to actually discuss the Court’s opinion. (It’s the “lost-it-over-summer” thing.) When the Supreme Court opinion was issued, it probably seemed to many to mark the end of the case, but for some procedural follow-on in the lower courts. But the case was not, in fact, over and indeed, it continues even now.
You can read the facts in almost any of the news stories about continuing proceedings. And they can be very long and convoluted, as the case has a long history. But for my purposes here today, it comes down to this: There is a three year old girl named Veronica. The South Carolina Supreme Court, following the opinion of the US Supreme Court, ruled that a couple from South Carolina (the Capobiancos) could complete their adoption of this child. But she has been living in Oklahoma with her genetic father, Dunsten Brown, who also wants to raise her as his daughter, for roughly half her life. (Brown is a member of the Cherokee Nation and so the case turns on the meaning and application of the Indian Child Welfare Act (ICWA) but I won’t be talking about that in this post.)
Post-Supreme Court the case has become a drama played out in the courts of Oklahoma (where Brown and Veronica live) and South Carolina (where the Capobiancos live.) SC says that the Capobiancos get Veronica. OK doesn’t seem to be so sure, though the governor just ordered Brown extradited. The question of which state gets to decide is part of the problem here, although it seems to me that there is a lot of weight on the SC side of the scale. (No one seemed to doubt SC’s right to decide during the Supreme Court litigation, did they?)
But as I have said, I don’t want to discuss the intricacies of the law at the moment. For now I just want to talk about process. This case has been in litigation for virtually all of Veronica’s life. In some way, I suppose you could say that being the subject of litigation is the only reality she knows. But as time has passed the litigation has become increasingly high-profile. It’s covered several times a week now all over the web. I don’t think anyone can say that this is good for her. Though court filings are sealed, that just means there’s a great deal of speculation about what’s going on in those hearings.
And this is the classic problem with law, especially in cases where people struggle over the right to raise a child. Each side is entitled to its position. Each side is entitled to litigate–to take appeals and such like. Each side has its own view of reality. Courts are where it all gets sorted out and that can take a long time. I wish they’d compromise. At times there are indications that they have compromised. Yet somehow the litigation drags on.
Surely what it brings to mind is the story of Solomon. If one side gave up, wouldn’t that show that they cared deeply about the child? That they would rather lose than destroy the child’s life?
It’s not that I think Veronica’s life is really destroyed here, by the way. Perhaps she has been sheltered from the litigation. One can hope. And perhaps things can work out in a way that allows her to become whole. But you have to wonder whether litigation–adversary litigation–is the best way to settle things like this. Is there a better way?
Maybe part of the problem is that we make parentage into an all-or-nothing thing. Whoever wins this gets all the legal rights while the loser is a legal stranger. Compromise is possible, of course–the winner can agree to allow the loser contact/visitation. But there’s no concealing the winner/loser reality. But is there a different way in a case like this? Could the Capobiancos and Brown raise a child together–cooperating as coparents? I have to say that the track record this far is hardly encouraging.
How long can this go on? I’m not sure about that. As I say, the OK courts ordered Brown extradited to SC, where he faces criminal charges of interfering with custody of a child. (That’s because in SC he has no right to custody and he is keeping Veronica from seeing the people who do have the right to custody–the Capobiancos.) There’s a hearing on the extradition in early October. Of course, it could settle before then. Meantime, Veronica is about to turn 4.