Biological parents shut out in baby-swap ruling Teen-ager's case sets new standard

August 19, 1993|By Larry Rohter | Larry Rohter,New York Times News Service

MIAMI -- A Florida judge ruled yesterday that Kimberly Mays, the teen-ager who has been the focus of a child custody dispute since it was discovered she was switched at birth with another child, may remain with the man she considers her father and has no obligation to maintain contact with her biological parents.

Setting aside long-standing legal doctrines that regard biology as the primary determinant of parenthood, Judge Stephen L. Dakan of the Sarasota County Circuit Court declared that Ernest and Regina Twigg, who want visitation rights to the child they consider their own, "have no legal interest in or right to Kimberly Mays" and that the 14-year-old girl's wish never to see them again must be honored.

"The evidence received at the final hearing supports a finding that it would be detrimental" to Kimberly "to force her to have any forced contact with the plaintiffs," Judge Dakan wrote, referring to the Twiggs. "The court concludes that forced visitation is likely to produce mental, physical or emotional harm of a lasting nature to her."

Legal analysts immediately hailed the ruling, saying it broke ground in the thorny area of defining parentage while also advancing the rights of children. Some also contrasted the decision with the "Baby Jessica" case, in which a couple in Michigan, Jan and Roberta DeBoer, were compelled earlier this month to return the 2 1/2 -year-old child they had been raising to her biological parents in Iowa.

"Both Jessica and the DeBoers were denied standing in court, but here a child did get standing, and her relationship with her nurturing parent was recognized as valid," said Elizabeth Bartholet, a law professor at Harvard University. "I would consider that an advance in the law."

Other legal analysts cautioned that the effect of yesterday's ruling is limited, at least until upheld by higher courts. They said the minimal weight of a local ruling, combined with the peculiar facts of the Mays case, should not lead adoptive parents or children's rights advocates to assume they have won a decisive victory.

"I see this as a unique situation with a right outcome that is unlikely to reshape the legal world for children," Robert Schwartz, director of the Juvenile Law Center in Philadelphia, said in a telephone interview.

John Blakely, a lawyer who represents the Twiggs, did not respond to a telephone call requesting comment on Judge Dakan's ruling, which included some pointed criticisms of the conduct of his clients. But in an interview before final hearings began last month, Mr. Blakely said he would appeal any decision not favorable to the Twiggs.

Shortly after their births in a hospital in rural Wauchula, Fla., in December 1978, Kimberly Mays and another infant were mistakenly switched and sent home with the wrong set of parents. The girl the Twiggs took home, Arlena, died in 1988 of a heart ailment, and medical tests conducted during her illness determined that she was not biologically related to the couple.

Subsequent genetic testing, which determined that Kimberly is the Twiggs' biological daughter, set off a bitter legal battle between the Twiggs and Mr. Mays.

If Mr. Mays and his wife, Darlena, of Englewood, Fla., wish to proceed with adoption, Judge Dakan ordered, they may. Mr. Mays' first wife, Barbara, died when Kimberly was 2.

Neither Mr. Mays nor Kimberly was willing to appear in public to discuss the ruling. But one of their lawyers, Arthur Ginsburg, said Kimberly was "yipping and yelping" with a mixture of relief and elation.

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