Boy's suit to divorce parents pits rights of child against preservation of family

April 23, 1992|By Patty Shillington | Patty Shillington,Knight-Ridder News Service

TAVARES, Fla. -- Gregory K. wants a divorce. From his parents.

The 11-year-old Central Florida boy has been passed like a hot potato from an abusive, alcoholic father to a neglectful mother, to a foster home, back to his mother, to another foster home, to a boys ranch and finally to another foster family, court records say.

Now, in a lawsuit believed to be unprecedented nationwide, the boy is asking a Lake County Civil Court judge to cut the legal cord that ties him to his mother and father. All he has ever #F wanted, Gregory once tearfully told a social worker, is "a place to be," the lawsuit says.

The boy's attorney, Jerri Blair, says the bespectacled fifth-grader is now making A's and B's in school and wants to stay with his latest foster family -- a couple with eight children of their own. They want to adopt Gregory as their ninth.

The biological parents say no.

Both the mother and the father, who are separated, are trying to regain custody of Gregory, who has been in the care of Florida's social service agency for nearly 2 1/2 years.

For now, Circuit Judge Mark Hill has ordered the parents, whose two younger sons have also been in and out of foster care, to stay away from Gregory and his foster family.

Legal scholars and child advocates say the suit could become a test case on whether children have the same constitutional rights as adults and, if so, how to balance those rights when the two collide.

"It's time we recognized that children are born with unalienable rights," said Tom Manning, executive director of the Lake County Boys Ranch.

One of the first questions will be whether the boy has the right to sue at all.

"We have a well-recognized constitutional right of the parents to control the custody of children," said Wendy Fitzgerald, an assistant professor of law at the University of Florida who specializes in children's rights.

What Gregory's suit could do is help "transform the legal view of a child from something akin to the property of parents to human beings with their own rights."

But Jane Carey, an Orlando lawyer representing Rachel K., the boy's mother, called the case a potentially dangerous precedent that threatens some fundamental family principles.

"This is shocking," Ms. Carey said. "Our whole thrust in Florida is to reunite the family if at all possible. Every child goes through a rebellious stage. If a child can choose his parents, then the parents should be able to decide and choose their children."

Ms. Carey described Rachel as "a working mother trying to keep her head above water in a country faced with a recession." She said Rachel does not want to talk to the media. Ms. Carey refuses to discuss the mother's relationship with Gregory or any of the allegations of "abuse, neglect and abandonment."

Ms. Carey suggests that Gregory's wish to divorce his parents stems from their socioeconomic status. Gregory's parents, who separated when he was about 4, are struggling financially. Gregory told his foster family that when he lived with his father, they stayed in motels and sometimes slept in the car.

"Children are very materialistic," Ms. Carey said. "They want the person who can buy the Air Jordans to raise them. Everybody in America can't be rich."

But George R., Gregory's foster father and a lawyer himself, angrily dismissed Ms. Carey's argument as "ridiculous."

"Children do not want to divorce their parents because they want to get a Nintendo," he said. "They want to divorce their parents when there's a fundamental problem in the parent-child relationship."

George would not allow the boy to be interviewed.

"We are not advocating that children should be able to choose their parents," George said, "but that they are persons protected by the U.S. Constitution. They have a right to pursue happiness. They have a right to competent counsel."

Gregory has been in state custody since September 1989, except for two months when he lived with his mother.

When the Florida Department of Health and Rehabilitative Services (HRS) takes custody of a child, the agency is supposed to recommend within a year whether the child and parents can be "reunified" or whether the child-parent relationship should end and the child be put up for adoption.

"It sounds like this case has taken much longer than the statute indicates," said John Perry, HRS's chief of dependency services for abused and neglected children. "That is not uncommon."

Ultimately, a judge will decide what weight to give Gregory's wishes.

"Family preservation should be the primary focus," Mr. Perry said, "but family preservation after safety of the child."

Mr. Perry said HRS takes a child's feelings into account when making its recommendation. In addition, Gregory's "guardian ad litem" -- the Latin term for his guardian in the suit -- makes a recommendation separate from HRS on behalf of the child. Gregory's guardian ad litem recommended Feb. 21 that the mother lose her parental rights and that Gregory be placed for adoption.

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