High court issue: child's 'interest' vs. parents rights

* Eugene Johnson wants his two children back. A court in the District of Columbia has allowed their stepfather to adopt them. The court ruled that adoption was in the youngsters' "best interests."m

* A mother and father are fighting a Delaware court that took away their parental rights in the name of the "best interests" of their five children.m

Such cases have traditionally been left to the individual states. But now the US Supreme Court has accepted these two cases -- and may have opened the way toward a federal definition of parent and child rights.

If the court decides to set such standards, it welfare system. Some suggest it could trigger a torrent of litigation across the US.

For centuries in American and British law, the state has moved to take children away from their natural parents when it was considered to be best for the children.

All US states allow children to be taken out of the home for various reasons, says Judy Areen, who teaches family and constitutional law at Georgetown University Law School. "A lot of the language [in state statutes] goes back to 1601," she says.

In one of these cases, Eugene Johnson, a divorced psychologist, asks the high court to rule that the "best interests" of his two children would be to accept him as their father -- even though they have testified that they prefer their stepfather.

After his divorce, Mr. Johnson made several attempts to visit his children, who are in the custody of their mother who was remarried. But the youngsters resisted the visits and complained that their father badgered them for not being affectionate.

Eventually, the father decided to stop trying to see them and to wait, hoping that the children would have a change of heart as they grew older. But he later asked his former wife for a photograph of the children. That step led the stepfather to seek to adopt the children and cut off Johnson's tie altogether.

Judge Paul R. Webber III of the District of Columbia's district court ruled that the adoption was "in the best interests of the children."

Said the judge, "The choice is between giving final security and to the family unit of which these children are in every way an integral part or leaving them to wander upon a course of uncertainty in the hope that someday they will be able to accept and benefit from [Johnson's] love." He added that the "chance was a slim one."

In a second case, an unnamed couple are seeking to regain parental rights to their five children, who are living in Delaware in foster care.

Although the parents (known as Doe and Roe) were found to have problems, their lawyer, Greg A. Meyers of Community Legal Aid in Georgetown, Del., says that the court failed to prove that they were harming their children.

Mr. Meyers points out that the court requires only that the "preponderance of evidence" show the parents to be unfit -- -the same test that it uses for determining blame in car crashes. He says that courts should act only after they have seen "clear and convincing evidence" that parental rights should be terminated.

The state offers evidence including the fact that the parents were half brother and sister, and the father had a poor job record and was an alcoholic, and that the mother was emotionally detached. Moreover, the state charges that during one two-year period the family had lived a "chaotic and nomadic" life, in 19 separate locations in 11 different towns.

Regina Mullen Small, state solicitor for Delaware, says that if the Supreme Court overturns the Delaware Supreme Court, the decisions "could have ramifications" beyond this case and affect custody battles generally.

Professor Areen points out that the Supreme Court could make it more difficult for states to cut off parental rights.

But Areen adds that most parents who lose their parental rights are poor, which could indicate discrimination.

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