The Ownership of Children

ELLEN GOODMAN

April 09, 1993|By ELLEN GOODMAN

Boston. -- A tug of war is not a war. The plight of an overwanted child doesn't compare with the plight of unwanted children. A girl who is cherished by four parents might even be considered fortunate by those cast adrift from a lone mother or father.

Nevertheless, every child creates a whole world of its own, and in less than two weeks, one child's world may be shattered. Unless another court takes this case on appeal, a girl who is known in Michigan as Jessica will be taken to Iowa where they call her Anna.

She will be transferred like a piece of property from Roberta and Jan DeBoer, the only parents she has known, to Cara and Dan Schmidt, a family of biological relatives and complete strangers. And she will have nothing to say about it. The language of the terrible twos -- tears and tantrums -- is inadmissible evidence to a court of law.

There are no malicious villains in this drama. Cara was an unmarried 28-year-old when she gave birth to this child and signed her away for adoption. The man she named as the father also signed away his rights.

For their part, Robby and Jan DeBoer had every reason to believe that the child they took home to raise would be permanently theirs. For his part, Dan Schmidt had no idea that he was her father when the baby was given up for adoption.

Within weeks after the baby's birth, a despairing and regretful Cara told Dan the truth. The shocked biological father, a man with two other children by two other mothers -- he had abandoned one child and had never seen the other -- decided that he wanted his Anna.

Custody cases like these do not lend themselves to nice, neat judgments of right and wrong. It seems unfair for fathers to lose their rights to children they don't even know exist. It is equally unfair for adopting parents to lose children because an unknown man reappears. It's most unfair for a case to drag on and on, leaving both child and parents -- all of them -- in limbo.

The dispute between the Schmidts and the DeBoers, between Iowa and Michigan, went on for over two years. In this time, Cara and Dan got married and conceived another child to be born this spring. The little girl came to know the DeBoers as her parents and Jessica as her name.

Questions were raised about fathers' rights, about states' rights, about adoptive parents and biological parents. But only occasionally did the phrase and the idea of ''the best interests of the child'' get into the legal liturgy.

Once, in Iowa, a judge said it would be ''alluring'' to consider the best interests of the baby girl, but under the law the father's interest came first. Once, briefly, in Michigan, a judge ruled that the rights of the child ''are paramount.'' But then last week the Michigan appeals court ruled in favor of Iowa and biology and the Schmidts.

The courts had listened to the parents. They had heard the abstract language of rights. But in the end they had mercilessly tuned out the child's life. The claims of legal paternity trumped those of nurturing. They counted the father's claims to his biological offspring and discounted the child's claims to the people she knew as mother and father, her 2-year-old world.

For Elizabeth Bartholet, a Harvard Law professor and author of a xTC new book on adoption, this case was more proof that ''We talk about best interests of child but actually give them very little weight, just about zero.'' Certainly it was true for one little girl.

In the country these days, we are struggling to right a serious imbalance between the interests of adults and children. We are trying to again make children central.

In the cover story of this month's Atlantic, bearing the tabloid headline ''Dan Quayle Was Right,'' Barbara Whitehead makes a case against divorce on the grounds that what may be good for parents is bad for children. At the Summit on Children and Families that met in Washington last week, the swan song of the National Commission on Children was a plea to keep the focus on kids. Everywhere, we are admitting to a national case of child neglect.

But in the Midwest, in the name of biology and with the approval of the courts, one set of parents named Schmidt is getting ready to wrench a child out of her life to take her ''home'' to an entirely strange world.

The woman who may lose this child has said, ''While we sit here and debate, is she theirs, is she ours, I realize she's no one's. . . . She is an individual who is learning to walk, talk, sing . . . and no one has represented her.'' Which parent would Solomon have chosen?

No, a tug of war is not a war. But it, too, claims victims. One at a time.

Ellen Goodman is a syndicated columnist.

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