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 Stories for April 29, 1998:

Regular Features:

King Solomon’s Dilemma

This is the final column by Berkeley faculty focusing on the troubled state of American families and calling for new policies directed toward helping children.

The authors of this series were brought together from across the campus through an interdisciplinary seminar, the Berkeley Forum on the Family. They are among 11 faculty who have collaborated on a book, “All Our Families: New Policies for a New Century.” These essays, written for Berkeleyan, are aimed at bringing the forum debates to a larger campus audience.

by Arlene Skolnick, Associate Research Psychologist, Institute of Human Development
posted Apr. 29, 1998

On Aug. 23, 1993, television news watchers looked on as a screaming Wisconsin three-year-old named Baby Jessica was pulled from her mother’s arms and sent to another family in Iowa. Jessica was an adopted child whose birth mother had changed her mind.

A similar drama played out some time later in Illinois as “Baby Richard” was removed from his adoptive parents at the age of four.

To the majority of Americans, as poll after poll revealed, the decisions in these cases were heartless and baffling. But they revealed, to those unfamiliar with family law, that while children may be the central characters in the courtroom dramas that determine their fate, their roles are actually very small.

As one judge commented, “The single biggest failing in our system today is that the voice of the child is not heard.”

We need a more child-centered approach to custody decisions in this country.

Currently, the legal system strongly favors blood ties over psychological bonds, no matter how strong and long lasting the non-genetic ties may be. Biology triumphs over psychology, not only in cases of adopted children like Jessica and Richard, but also in other situations.

A custodial stepfather, after the death of the child’s mother, will lose custody to a long-absent biological father. A foster parent who wants to adopt will lose out to a biological parent who abandoned the child but now wants it back. A lesbian co-parent will lose custody rights if she and the biological mother separate.

Indeed, in recent years, the rights of biological parenthood have been extended to men who were not married to, or even involved with, the mother when the child was born.

For example, Baby Jessica’s birth mother had put the name of her current boyfriend on the birth certificate. She later told the biological father what had happened, and it was his claim to the child, backed by a paternity test, that decided the case.

Paradoxically, this preference given to biology comes at a time when non-biological parenting – through adoption, foster care, remarriage and assisted reproduction – has grown exponentially. Yet the biological slant of custody cases fits well with older American cultural assumptions.

For example, the saying “blood is thicker than water” tells us that biological kinship ties are the strongest of all. Moreover, legal scholars often justify the preference for biological parents because it provides a clear standard, a “bright line” for making decisions.

However unfortunate the outcome of any particular cases, according to this view, doing away with the legal presumption in favor of blood parents would open up a Pandora’s box of troublesome and unjustified claims by anyone who had taken care of and developed a relationship with a child.

In 1982, the U.S. Supreme Court held that the right of a fit biological parent to the custody of a child is a fundamental liberty interest.

The presumption in some states is so strong that unless a biological parent has been found unfit, his or her rights are nearly inviolate. Indeed, a notorious 1966 case illustrates the dangers in allowing judges unlimited discretion to define the best interests of the child.

A widowed California father sent his young son for a visit to his Iowa grandparents. They refused to send him home. When the father sued, an Iowa judge ruled that the boy should remain with his grandparents, because the judge deemed their conservative midwestern lifestyle preferable to that of his more “artistic” father. In his decision, the judge cited such factors as the quality of the paint job on the father’s house.

This case also aroused public outrage, leaving the clear conclusion that both blind adherence to biological parenthood rights and unlimited discretion on the part of judges can lead to painful outcomes.

So, what is the solution to King Solomon’s dilemma?

Perhaps Canada offers an answer. A 1985 decision by the Supreme Court of Canada held that while the legal system

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