Recently I wrote about the U.S. Supreme Court decision in which the Court declared that a Native American father was not covered by the Indian Child Welfare Act’s procedures for TPR because he had abandoned the child before her birth, and the Court stated that ICWA only protects existing families and their relationships. SCOTUS remanded the case to the South Carolina courts to decide the future custody of the child. Last week, the South Carolina Supreme Court found that the couple seeking to adopt Baby Girl – named Veronica – was the only party properly seeking her adoption, and ordered the Family Court to finalize the adoption.

So what happens now? It appears that Veronica will be transferred almost immediately, which is somewhat unusual. Normally, a court would hold a hearing to determine the best interests of the child, and might gradually re-introduce the child to her adoptive parents since, after two years in Oklahoma with her birth father, little Veronica might not feel comfortable moving back into the Capobianco home in South Carolina. In addition, under so-called “grandparent visitation” statutes, the birth father might be awarded some visitation rights. But here, where the adoptive parents and the biological father have fought bitterly for almost Veronica’s whole life (and where they live half a continent away from each other), shared custody might not be a viable option.

In a three to two opinion, the Supreme Court of South Carolina declined to order a best interests hearing in family court, stating “There is absolutely no need to compound any suffering that Baby Girl may experience through continued litigation. As it stands, Adoptive Couple is the only party who has a petition pending for the adoption of Baby Girl, and thus, theirs is the only application that should be considered.”  In so holding, the South Carolina court side-stepped the issue of whether it was still the appropriate forum state for the dispute, and thus ignored the fact that actually there is another adoption petition pending – in Oklahoma, where the child currently resides with her birth father. As pointed out by one commenter, the South Carolina court is acting as if the law had been applied according to SCOTUS’s interpretation originally, and the nearly two years that Veronica spent with her birth father never happened at all.  But those two years of paternal custody did happen, and moving Veronica away from her birth father now will abruptly tear her from her parent figures for the second time in her young life. Everything we know about child psychology tells us that this is a risky plan, since young children need a sense of safety and security in their lives.

It should be noted that there is no good answer here in terms of legal policy. The guiding principle in custody disputes is “the best interests of the child,” but if that were the only principle, any person claiming he could do a better job of raising a child could try to wrest custody away from a child’s current parents. In fact, laws of standing and standards for when existing parental rights can be terminated must be applied before the best interests of a child are considered. In custody disputes between two legal parents who are splitting up, the effects of changes in custody are mitigated by the fact that both parents will almost always end up with significant placement time, and the child will be able to maintain a relationship with both parents over time.

Adoption cases are much more difficult, and the results are almost always devastating to one set of parents, because the decisions are all or nothing. If a child is wrongly removed from birth or adoptive parents (as SCOTUS held happened here), then a court must enforce the law and correct the wrong so that other children in similar circumstances will not meet a similar fate. But how to correct the wrong, especially after significant amounts of time have passed? And which wrong? The parties in child custody cases are the parents, NOT the children, so we are talking about legal wrongs to one or another would-be parent. The child might be wronged by the results, but does not generally have standing to claim that in court. So if, after finding that an initial removal of a child from a birth or adoptive parent was improper, the court orders the child returned to the legally rightful parent, the child may be traumatized by an abrupt change in custody that tears her away from the people she loves as parents. If, on the other hand, the court instead orders that the child remain in the current home because stability and continuity are important to the child’s best interests, the court will be creating an incentive for other would-be parents to seize and cling to children, hoping to create a legal right to custody based on the length of their association with the child – kind of like adverse possession in property law. If that analogy makes you cringe, it may be because we all know that children are not property – although they in fact may seem to be treated like property in many custody disputes.

The trauma of removing Veronica from her birth father and his wife will likely be duly recorded by a media circus filming a screaming child being pried from her current home. Perhaps Veronica will fare well, like Baby Jessica and Baby Richard did under similar circumstances in the early 1990s. Jessica – renamed Anna – was forcibly returned to her birth parents after living with her prospective adoptive parents for 2 ½ years. Richard was returned to his birth parents after 3 years with prospective adoptive parents. In both cases, by all accounts, the children recovered nicely from the trauma, and had normal, happy childhoods. I hope the same will be true for Veronica.

But still, there is something deeply troubling about this case. Justice Sotomayor said it best in her dissenting opinion: “[T]he anguish this case has caused will only be compounded by today’s decision.”