Another King Solomon dilemma; what would you do?

Biological mom wins 3-way battle
Court removes boy from couple who raised him since birth; biological dad had fought adoption
Published December 31, 2004
By Lolly Bowean and M. Daniel Gibbard, Tribune staff reporters. Tribune staff reporters Lisa Black and Gina Kim and the Associated Press contributed to this report

A 3-year-old boy at the center of a three-way custody battle was taken Thursday from the Florida couple who raised him since birth and handed over to his biological mother, a Glenview woman, after a judge ruled it was in the child's best interest.

The ruling terminated guardianship for Gene and Dawn Scott, both 44, of Atlantic Beach, Fla., leaving them "devastated," their spokeswoman said.

"These are the only people he knows as a family," said Debbie Grabarkiewicz, director of case advocacy for Hear My Voice, an Ann Arbor, Mich.-based child protection group. "We're very concerned about the trauma and emotional health of this child. He was petrified to go."

However, a lawyer for Amanda Hopkins, the birth mother, said the boy and Hopkins, who have maintained regular contact since she gave him up, "are doing great."

"They were happy to see each other," said the attorney, Elaine Lucas. "There was no kicking, screaming or anything. He knows his mother and he was happy to see her."

Hopkins and her family could not be reached for comment Thursday, and Gene Scott referred calls to Grabarkiewicz, saying only, "We are doing all we can" to regain custody.

On Wednesday, Dawn Scott had said, "He's our only child. We've raised him since the moment of his birth. We are losing our son, our life."

The custody exchange, which called to mind the bitter case of Baby Richard in the 1990s, took place at an undisclosed location. It was the latest development in a legal fight that began almost as soon as the boy was born in Jacksonville on May 5, 2001.

Hopkins dated the boy's biological father, Stephen A. White Jr., when they both lived in Maine, according to sealed court files obtained by the Tribune. Early in her pregnancy, she left White after a domestic violence incident and moved to Jacksonville, the files show.

Hopkins agreed to place the boy with the Scotts, family friends who filed to adopt him May 9. But White, who did not know about the baby until weeks before the birth, immediately contested the adoption, and in March 2002, a judge dismissed the Scotts' petition but named them temporary guardians, the files show.

In September 2002, White was granted one overnight supervised visitation per month--supervised at his own request to attempt to show his fitness as a father, the record says. Last May, that was increased to two weeks per year, at White's parents house in Dover, N.H., where his father is an attorney.

Neither White nor his parents could be reached for comment Thursday.

The fight began to come to a head this fall, when Hopkins, the Scotts and White all sought custody.

In the ruling that took the boy from the Scotts, entered Dec. 16, Circuit Judge Waddell A. Wallace III concluded that "the evidence fails to show that either mother or father is unfit to raise [the boy]."

Furthermore, he wrote, the complex three-way parenting arrangement was potentially harmful.

"As [the boy] matures, difficult issues are reasonably foreseeable regarding the respective roles father, mother and the Scotts would play in [the boy's] life and [his] awareness and acceptance of these roles," Wallace wrote. "The court is not persuaded that [his] own best interests would be promoted by extending the Scotts' role as custodians until he reaches adulthood."

Left a choice between the biological parents, Wallace awarded temporary custody to Hopkins based on several factors, including her stability. She is a stay-at-home mom who lives in Glenview with her husband, who is in the Navy, and with whom she has another child.

Wallace also cited White's "extremely inappropriate behavior" in court, including outbursts that show he still has difficulty controlling his temper, the judge wrote.

The case may sound familiar to those who recall the agonizing circumstances surrounding Baby Richard, but there are major differences, experts said.

Baby Richard was adopted but then handed over several years later to his biological father, Otakar Kirchner, whom he had never met.

The Illinois Supreme Court ruled that because Kirchner had been lied to by the boy's mother, who gave the baby up for adoption and told him the infant had died at birth, he was entitled to custody.

In the Florida case, the boy was never legally adopted but was living with custodial non-parents under an agreement made with his biological mother. Both birth parents still retained some parental rights and visitation privileges.

In an adoption, those parental rights are terminated, said Daniel Moriarty, an adoption and family law attorney based in Chicago.

"Baby Richard, that was a clear-cut adoption," Moriarty said. "If your parental rights have been terminated there is no courthouse you can go to."

After the Baby Richard case, the law changed so that a father who is not married to the baby's mother may put his name on a "putative father registry" any time during the mother's pregnancy or within 30 days of the baby's birth.

"I think every judge, every guardian got their antennae very sharpened," Moriarty said. "If there is doubt as to where the biological father is, you have to make substantial efforts to identify [him]."

On Thursday morning, the Scotts packed half of the boy's belongings--his Hot Wheels cars, baseballs and clothing and prepared him for his first transitional visit with his biological mother. By the end of January, the Scotts will lose him for good, court records show.

Still, the couple spent the day reaching out to public officials for help and coping with the separation, Grabarkiewicz said.

"They are devastated and they are trying to be mommy and daddy until they can't be mommy and daddy anymore," Grabarkiewicz said. "They are having a very tough time. They are worried about their little boy."

Florida state Rep. Stan Jordan filed a child-abuse complaint with the governor's office saying it was wrong to remove the boy from his Florida home.

"It's a classic issue of who's right presiding over what's right," Jordan said. "But what is the right thing to do with the child? It has been a very tearful day here."