Adoptive Couple v. Baby Girl in the Supreme Court NOW

My apologies for neglecting all the comments on the last post.  It’s the travel thing this time.  I’ll do my best to catch up.  But I also wanted to pick up and what may prove to be a very important argument (or not-it is always hard to tell in advance.)  Today–right now–the Supreme Court hears argument in Adoptive Couple vs. Baby Girl.   There’s an excellent pre-argument summary here and I’ve written about the case before, too.   Indeed, I had picked up on this case when the previous opinion (from the South Carolina Supreme Court) was issued.

As the pre-argument discussion I linked to makes clear, there are a number of issues here and lots of directions that the Court could choose to take.  This is why it is hard to say whether it will (in retrospect) turn out to be an important case.  

When Adoption Is Undone

Here’s a really wrenching story of a very recent case from South Carolina.   Matt and Melanie Capobianco tried IVF a number of times but could never conceive a child.   They decided to go through adoption.   Christina Maldonado was pregnant and willing to place her child with them.   When her daughter, Veronica, was born in September 2009, Matt Capobianco was there to cut the cord.   Though it doesn’t say so, I’d assume that from the time she left the hospital, Veronica lived with the Capobiancos.

When Veronica was four months old, the Capobiancos learned that her biological father, Dusten Brown, filed for custody.

The Posthumous Sperm Donor and the Permanance of Parenthood

There’s yet another case about the paternity of a child born from sperm used after the death of the man who produced the sperm.   (There’s a whole string of these, some of which I’ve written about.)   As is often the case, the facts here aren’t in dispute–what is disputed is how the law applies to those facts.

Janice and Don Schafer, Jr.  were married in June, 1992.   Three months later, Don was diagnosed with cancer and warned that chemotherapy might make him sterile.  In December, 1992 he had sperm frozen for later use.   He died in March, 1993, at which point the sperm had not been used. 

Janice used the sperm to conceive in April, 1999.

Vermont/Virginia Update and Isn’t This A Bit Like Brazil?

[NB.   I originally had a switched the names of Miller and Jenkins in one paragraph.   That may have caused confusion.  I have now corrected this error.]

For quite some time I’ve been following a custody case involving two women who at one time had a Vermont civil union.   Janet Jenkins and Lisa Miller have been fighting over the custody of their seven year old daughter, Isabella,  in courts in Vermont and Virginia.  

I won’t rehearse the whole sorry story here–you can follow the links back if you like.   Suffice it to say that Miller, who was trying to defeat Jenkins’ claim to status as a legal parent, sought to litigate in Virgina, a state well known to be very hostile to lesbian relationships.   In the end, however, even the Virgina courts conceded that Vermont was entitled to decide the case, and so Jenkins was recognized as a legal parent. 

Miller has refused to cooperate with the court-ordered visitation plan and has prevented Jenkins from exercising her right to spend time with her daughter.    As a consequence, the Vermont court recently switched primary custody to Jenkins, who has consistently said she would facilitate Miller’s contact with Isabella.  

All this sets the stage for yesterday’s story:   Rather than comply with the court order, Miller has taken Isabella and vanished.  

Custody in Brazil: David Goldman’s Case Nears End

The last post I wrote (I’ve been less than a constant blogger here) was about David Goldman’s efforts to regain custody of his son, Sean, who was living in Brazil with the extended family of the boy’s mother.  (She had died some years ago, after taking the boy to Brazil.)   I caught this story today.   It suggests that the case is indeed drawing to a close and that Sean will return to the US within the next day or two.  

There are two interesting quotes in the article I wanted to highlight.   The first is from Christopher Schmidt, a St. Louis based attorney.  (I cannot tell if he has any actual involvement in the case, but it appears not.)  He said

The critical lesson from this tragic story is to not permit these child abduction cases to spiral into protracted custody disputes, as happened in Brazil.

This highlights what is for me the larger lesson from this case:  The tyranny of time.   Over time, children form attachments.  

Quick Update: David Goldman’s Quest, Brazil Custody Case

In June I wrote about a case working its way through the Brazil courts in which an American father (David Goldman) seeks to regain custody of his son, Sean.   The boy has been living with Goldman’s wife’s family in Brazil for over five years.   Goldman’s wife had taken the child to Brazil in 2004 when the boy was four.   She later died.  Goldman sought return of the child, but the wife’s family objected.  

There’s a new decision by an intermediate appellate court affirming Goldman’s right to custody of the child.  While Goldman’s right to custody may seem fairly clear, the case has taken a long time to work its way through the Brazilian court and it isn’t done yet..   As this story recounts, it’s possible that the child will not be returned to the US any time soon while further appeals are taken.   And so more time passes. 

Time is precisely what makes this case difficult. 

A Few Further Thoughts on Father’s Day

As I read through the New York Times this past Sunday I was impressed with the pervasiveness of the Father’s Day theme. Virtually every section of the paper  I picked up seemed to have at least one Father’s Day themed article—sports, business, style, and op-ed.  The Style section alone had two Father’s Day articles, plus a column reviewing a couple of books around single-motherhood thrown in for good measure.  

The pieces that struck me most were a pair of essays in the News of the Week by John S. and Jason Burnett, who are father and son.   They were separated for 27 years—from the time Jason was 10 to the time he was 37.   Though the essays are a bit sketchy on historical detail, it’s clear that John Burnet left his family.   He says, “I bolted down to the Brooklyn docks and signed on a merchant ship.”  

David Goldman’s Quest and the Passage of Time

Here’s a current case which, by chance, ties back to yesterday’s post.   There’s a version most recent developments here, and also a time-line, but I’ll summarize the facts.  

David Goldman and his wife, Bruna Bianchi, had a son (Sean)  in May, 2000.   In June, 2004, Bianchi and Sean went to visit her family in Brazil.   As far as Goldman knew, they were to be gone for two weeks.  

Within days of their arrival, Bianchi told Goldman they would not be coming back and that he would not be seeing his son again.   There’s an international treaty–referred to as the Hague Convention–that is designed to manage situations like this–where one parent tries to deprive another of contact with a child by fleeing to a different country.   As early as September, 2004, Goldman invoked the Hague Convention and began legal proceedings to try to regain access to his son. 

A couple of further thoughts

About switched children and stolen children.  This was the topic of yesterday’s post so you’d best read that first.

One is that there are lots of variations on the general theme.   Being precise about possible scenarios is probably important as it helps clarify which things matter.  So, for example, the the switched at birth is different because presumably each family ends up with a child, just not the “right” child.   That’s quite diffrerent from the stolen child, where someone who has a child ends up with no child at all.  Does that difference matter?  It certainly might for any number of purposes/reasons.   The injury done to the latter person is qualitatively different (in my view, anyway) than the injury done to the former person.   You could spin out the differences in a lot more detail, and perhaps it is worth doing so another time.  For no I just wanted to note that they are there and they matter.

Similarly, the passage of time is critical and so scenarios with different time frames should be distinguished.   If the child switch is discovered within days/hours of leaving the hospital, it’s easy to say that you just switch them back.  The longer before discovery, the harder that solution becomes.   If it has been months?  Years?  Decades?