Rival Parents Clash Over Adopted Child

As in the `Baby Jessica' case, an Illinois dispute focuses on the legal rights of unwed fathers

By , Staff writer of The Christian Science Monitor

IN a suburban Chicago backyard, a 3-1/2-year-old boy known publicly only as ``Baby Richard'' frolicks around a sprinkler or bats at a baseball, unaware of the legal battle raging around him.

But Baby Richard may have to leave the parents who have raised him since he was four days old, if an Illinois Supreme Court decision is upheld and custody is granted to the biological father he has never seen.

The case, one of about 500 contested adoptions in the United States each year, illustrates the tendency of US courts to give precedence to the rights of biological parents in adoption disputes without weighing potential harm to the child, according to legal and adoption experts.

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``The courts place overwhelming weight on the rights of birth parents,'' says Elizabeth Bartholot, an expert on adoption at Harvard Law School.

The case also demonstrates the kind of bitter adoption struggle that can arise from the broad, yet ill-defined parental rights that have been granted to unwed fathers over the past 20 years.

Moved by the plight of Baby Richard and children like him, legislators in Illinois and other states have recently passed laws designed to prevent adoption disputes by clarifying the parental rights and responsibilities of unwed fathers. Some of the laws also grant consideration to the child's interests when disputes do arise.

On June 16, the Illinois high court invalidated the adoption of Baby Richard and ordered the boy returned to his biological father, Otakar Kirchner. On July 12, the court refused a motion by the adoptive parents, known in court papers as Jane and John Doe, to rehear the case.

The ``Does'' will ask the US Supreme Court to hear the case, says their lawyer, Richard Lifshitz.

The Illinois Supreme Court reversed two lower-court decisions in favor of the adoptive parents. Upholding Mr. Kirchner's parental rights, the high court determined that he had not shown interest in his son during the first 30 days of life as required by state law only because Kirchner did not know his child was alive.

Kirchner was estranged from his girlfriend, the boy's mother, before the birth. She moved to a home for battered women, saying Kirchner abused her, an allegation she later recanted. Soon after the birth, on March 16, 1991, she signed adoption consent forms and told Kirchner the baby was dead.

Two months later the couple reconciled, however, and Kirchner began a legal battle for his son. They married six months after the birth.

In its June 16 ruling, the Illinois Supreme Court stressed protecting the rights of the biological parents ``wholly apart from any consideration of the so-called best interests of the child.'' In denying a rehearing, the court said that while the child will face ``initial shock'' when returned, ``this trauma will be overcome.''

EXPERTS say the court should not underestimate the impact on Baby Richard of such severe change. ``His world is the world in which he has grown up,'' says Denis Donovan, director of the Children's Center for Developmental Psychiatry in St. Petersberg, Fla. Forcing the boy to leave his family would mean the ``total disruption and turnover of his world,'' Dr. Donovan says.

Partly to spare Baby Richard that trauma, Illinois Gov. Jim Edgar (R) on July 3 signed a bill requiring a hearing to consider a child's best interests in custody proceedings when an adoption is denied or revoked on appeal.

In a highly unusual move, Governor Edgar has also attempted to intervene directly to reverse the high court decision on Baby Richard, calling it a ``travesty.''

If the adoption is not approved by the US Supreme Court, a hearing under the new law would likely award initial custody of Baby Richard to the Does, lawyers for both sides say.

``It would be a very difficult battle,'' concedes Kirchner's lawyer, Loren Heinemann, saying he would try to block a custody hearing by arguing that the new law does not apply to the case.

Still, such a resolution would add uncertainty to the child's life because the Kirchners, as the legal parents, would retain possible visitation and future custody rights, adoption experts say.

Baby Richard's dilemma underscores the vital need for states to reform laws and policies to minimize drawn-out, damaging adoption disputes and, when they occur, to give consideration to the rights of children, experts say.

``The real problem is, can we as a society clean up our act before a child is conceived or born to resolve these issues?'' says Dr. Anu Sharma, a research scientist who has studied the impact of adoption on children at the Search Institute in Minneapolis.

Recent efforts to prevent adoption disputes have focused on clarifying procedures for terminating birth-parent rights, finalizing adoptions, and establishing the rights and obligations of unwed fathers to their children.

Although fewer than 1 percent of the 50,000 adoptions of American children by non-relatives in the US each year are contested, some of the most bitter fights are led by unwed biological fathers seeking custody.

Lawmakers in several states were galvanized to act by a case similar to that of Baby Richard - the battle over Jessica de Boers of Ann Arbor, Mich. She was returned to her biological parents at the age of 2 early last year.

Since then, other states - including Illinois, Iowa, Oregon, Arizona, and Indiana - have moved toward creating ``putative father registries.'' The registries differ, but all offer unwed men a way to claim their parental rights and affirm their responsibilities for an unborn baby or newborn.

Utah and New York have had registries in place for several years.

``I think you'll see a major push in the next legislative year to move toward the registries, to get something on the books in every state,'' says Paul Denhalter, executive vice president of the National Council for Adoption (NCA) in Washington.

Such registries would offer unwed fathers like Kirchner a way to legally assert their intention to parent a child despite estrangement from the mother. Requiring timely registration would also prevent fathers who failed to claim their rights from disrupting adoptions months or years later, experts say.

Better counseling of biological parents on the permanence of adoption is also needed, especially because recent practices such as ``open adoption'' enable them to maintain ties with the children they give up, says Mary Beth Style, vice-president of the NCA.

Finally, courts should be required to weigh the interests of the child in adoption disputes, experts say.

``We treat children as belonging to their birth parents ... rather than as having rights to grow up in a nurturing home,'' Professor Bartholot says.

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