Ruling delayed in custody fight over boy
By ROMA KHANNA
Copyright 2004 Houston Chronicle
A ruling in the custody squabble between state Rep. Talmadge Heflin and the boy's mother was put off today after it was decided that the mother may need an interpreter.
Heflin, a Houston Republican who chairs the House Finance Committee, and his wife are seeking permanent custody of Fidel Odimara Jr., the son of African illegal immigrants.
The Heflins say the mother, Mariam Katamba, was a house guest who showed little interest in her child. Katamba maintains she was the Heflins' maid and that Janice Heflin simply helped her take care of the baby when she started working outside their home.
The two sides were be back in court today for a hearing in which Family District Judge Linda Motheral could have ruled on who will keep the boy until a final decision is made on permanent custody, which could take months.
Heflin and his wife now are trying to have the child's father removed from the dispute after learning that the mother is married to someone else, although she is seeking a divorce.
Some issues in the custody battle between a state lawmaker and the parents of a 20-month-old boy may be murky, experts said Thursday, but the law clearly favors the biological parents.
"You don't acquire the right to be a parent of a child simply because you have a superior résumé," said Richard Carlson, a professor at the South Texas College of Law who specializes in family law. "There is a strong presumption in favor of the parents in custody cases."
Experts said there are two primary legal issues: whether the people seeking custody have a valid claim, which is called standing; and whether their reasons for wanting the child are compelling.
"It isn't supposed to be easy for a non-parent, even a grandparent, to get standing," said Laura Oren, a professor at the University of Houston Law Center. "You wouldn't want the mailman to come along and say, 'I don't like the way you are raising your kids. I think I'll sue.' "
Law in favor of parents
Under the law, a small circle of people can make legitimate claims for custody, including a child's parents, the child himself and a step-parent, if one or both of the biological parents is dead.
The Heflins are citing a provision in the law that allows standing for someone who has had continuous care, control and possession of the child for more than six months. They argue that, after moving into their house, Katamba left Fidel primarily in their care.
"It is not that cut-and-dried, especially in a case like this, what (continuous possession) means," Carlson said. "If I go and live with someone, does that mean they have the actual care, control and possession of my child? I don't believe that is what the law intended."
Though she lived with the Heflins, Katamba said, she never relinquished her role as her son's primary caregiver.
Beyond establishing that they have a valid claim to the child, the Heflins must show there is a convincing reason he should be taken from his biological parents. Such reasons could include danger to the child or possible emotional harm because he has bonded with the Heflins.
"My guess is that they are going to have to show there is some immediate danger to the child if he is turned over to the parents, to overcome the parental presumption," said Stewart Gagnon, a partner at the law firm Fulbright & Jaworski who helped to rewrite the state's family law code in 1993.
The Heflins allege that Fidel Odimara Sr. has been reckless with his son, tossing him in the air and banging his feet, and has said he might take the boy to his native Nigeria.
Talmadge Heflin also said he and his wife could provide more opportunities for the child.
"We all know the terrible problem that black male children have growing up into manhood without being in prison," he testified Wednesday.
But Katamba and Odimara deny the abuse allegations and say the Heflins are trying to use their assets and political power to take their child.
Ruling could bolster case
Before permanent custody is decided, the judge must determine who will keep the boy during the legal process.
Experts said this ruling, which could come today, could have major impact on the Heflins' efforts to win permanent custody.
"The potential problem with granting temporary custody to the non-parents is that it could be used to bolster their standing when it comes to permanent custody," Oren said.
Experts also questioned why a judge signed an order July 27 to give the Heflins the boy, who had been with his mother since July 19, until temporary custody is resolved.
"Unless there is a serious immediate question regarding an emergency with the child, that typically does not happen," Oren said.