Have we reached the end of the Baby Veronica story? Last night Dunsten Brown gave up physical custody of Veronica (no longer a baby), allowing the Capobiancos to assume that role. There’s no way of knowing if this is actually the end of the story. Litigation could be continuing, as the article suggests. But surely this is a significant moment. Actual physical custody of the-now-four-year-old child at the center of a very long legal struggle has shifted to her adoptive parents, who presumably have taken (or will take her) back to South Carolina.
I’ve written about this many times before, though most recently not so much about the actual merits as about the nature of the on-going struggle. It is this aspect of the case that continues to trouble me most.
Veronica (and at least all parties seem to agree on her name, unlike some cases where the child is given different names by the competing parties) is four year old. For slightly more than the first two years of her life she lived with the Capobiancos (the adoptive parents). Since New Year’s Eve 2011 she has lived with her genetic father, Dusten Brown, and his family.
This means that each of these families–the Capobiancos and the Browns–were there for major milestones in Veronica’s life. The Capobiancos saw her roll over, sit up, take her first steps, and so on. Brown heard her learn to talk and watched as she learned to dress herself and became a toddler. (I’m guessing at who saw which things, of course, but you get the general idea.)
This is all the more reason, in my view, that Veronica needs both of these families. To lose either is to lose that part of the past. And while sometimes loss like that is inevitable, here it is not. The families could both continue their relationships with Veronica, though obviously they cannot both exercise exclusive parental rights.
As I’ve said before, US law (and many other sorts of law I know) makes legal parenthood an all or nothing game. One set of people here are legal parents–and that means that the other set has no established legal rights. Indeed, it would be extremely unusual for a court to order visitation, say, with someone who was not a legal parent of a child.
There are two distinct problems that the all-or-nothing nature of legal parenthood exacerbates. First, it’s a bit part of why people fight over parenthood so bitterly. If the Capobiancos are the legal parents (and they are, at least for now) then they decide who Veronica sees, how she spends her time. That’s one of the key rights of legal parents. Brown, by contrast, has no right to insist on seeing his genetic child. He appears as a supplicant–dependent on the good-will of the Capobiancos. It’s not hard to see why with that prospect you would fight to be the legal parent–to have the right to make the decisions.
Second, once the (bitter) struggle is over (as this one might well be) there’s such a stark win/lose situation. The Capobiancos have complete control over Veronica and Brown has none. I’m afraid this may not help build Brown (and his family) into Veronica’s life in a meaningful way. I don’t mean that it couldn’t and I don’t mean to criticize the Capobiancos particularly here–my recollection is that they were (and for all I know still are) willing to give Brown access to the child in some way. But once the decision is made/final it seems to me that the all/nothing structure would tend to undermine the very idea that Veronica needs both relationships. (I also wonder how it effects the story Veronica will be told about the first four years of her life. Winners get to write the history, don’t they say?)
It easy to say that I dearly wish the parties here could have worked together from the get-go four years ago and found some mutually acceptable way forward. Of course I do. But I suppose my point here is that the law—the all-or-nothing nature of legal parenthood–doesn’t necessarily encourage that. Perhaps it should.
Another thing easily said, I’m afraid. The problem is that this restructuring of our understanding of legal parenthood would come at a high price. Legal parenthood is structured as it is–in that all/nothing way–in order to protect parental rights. Protection comes precisely because no non-parent can challenge the decisions of a fit parent. Give someone else a formal legal voice and you undermine that idea.
Still, if’ I’m attached to the idea that the law ought to reflect reality (and I am), then maybe it ought to recognize that more than just one set of parents may be crucial to a child’s life. It’s not that I think one can partition up decision-making authority (one of the key elements of parental rights). That’s not always possible or desirable. But surely there are other ways to recognize the important relationships that a child has–to recognize that the isolated nuclear family isn’t always where the child lives. This recognition would come at a cost, but maybe it is worth assessing whether the cost would be worth paying.