Blood versus love in US custody battles: Jessica DeBoer returns to parents: Courts must decide whether the rights of biological parents should come before the happiness of their children. David Usborne reports

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The Independent Online
WHEN King Solomon was confronted with two women fighting over the ownership of a baby, he resolved the issue by ordering the infant to be cut in half. To save the child's life, one of the women abandoned her claim - and was awarded custody. For 'Baby Jessica', the toddler caught in an adoption battle that has gripped America, such wisdom, sadly, has not been forthcoming.

The picture of a happy toddler, with wide eyes and pudgy limbs, this little girl has been the object of a bitter custody dispute almost since the day she was born two- and-a-half years ago. Her plight has prompted an outpouring of emotion across the country, and controversy about a legal system that seemingly forsakes consideration of the welfare of the child, and perhaps even common sense, in favour of protecting the rights of biological parents.

Tomorrow the Michigan couple, who have raised Jessica almost since birth and fought in vain to adopt her, Roberta and Jan DeBoer, are due to give her up to the pair who conceived her, Cara and Daniel Schmidt, from Iowa. As the Schmidts drive away with Jessica strapped in a new baby seat, the DeBoers will go home not knowing whether they will ever see her again.

The story began on 8 February 1991, when an unmarried factory worker, Cara Clausen, gave birth to a daughter. She resolved almost immediately to give her away for adoption. The DeBoers, unable to have a child of their own because of a viral illness suffered by Roberta on honeymoon, were delighted at the chance to adopt a baby. The release papers were signed by Cara and by the man named as the father. The DeBoers went home to Ann Arbor with the girl they named Jessica. The formal adoption process, they thought, would be complete within six months.

Days later, however, things began to unravel. The DeBoers learned that Cara had had second thoughts. It turned out that she had lied about the identity of the father. A former boyfriend, Daniel Schmidt, was claiming paternity. It was not his signature beside Cara's on the release form and, not unreasonably, he was declaring it void. Cara and Daniel began formal proceedings to regain custody of Jessica in March 1991.

There followed a bitter legal confrontation between the DeBoers and the Schmidts (Cara and Daniel married and last month had another child). Daniel's paternity was scientifically proven, and just after Christmas 1991 an Iowa court ruled that Jessica be returned. The DeBoers appealed.

In February 1992 a lower Michigan court found in their favour, but that ruling was overturned by the state's supreme court on 2 July this year. The DeBoers were given until tomorrow to relinquish the child they have come to treasure. Efforts to win intervention by the Supreme Court in Washington were finally exhausted on Friday.

Perhaps the DeBoers were badly advised and should have given Jessica up at the first sign of trouble, but public sentiment is overwhelmingly with them. Though of modest means - Jan is a printer at the University of Michigan - they have provided Jessica with what seems like a model home.

Daniel, by contrast, is a trucker and a father to two children by other women, one a former wife, for whom he gave no support or care. Lawyers for the De Boers argue that uprooting Jessica would cause her 'unimaginable harm'. They report that, when told last week about her move, Jessica said, 'No, I'm not going,' and started crying.

US law, though it varies among states, is heavily weighted towards the biological parents in such disputes, except where they are charged with abuse or neglect. That bias is under attack from supporters of the DeBoers and adoption campaigners.

'We need to start listening to what the children are telling us,' said Mary Beth Seader, vice-president of the National Council for Adoption in Washington. 'It's not the genetics of a child that are important, but the circumstances in which the child will feel most secure.'

The council has gathered a quarter of a million signatures backing the DeBoers. Mrs Seader fears couples considering adoption may be put off because of the DeBoers' troubles. There are about 600,000 children in foster care in America, yet only 51,000 adoptions a year are completed.

Next week the American Bar Association will back proposals for legal reforms that would put more emphasis on the welfare of children in such cases; for instance, by setting up special children's courts. 'If the law does not work adequately to take into consideration the welfare of our children, it should be changed,' said Howard Davidson, director of the association's Centre on Children and the Law.

Any reforms will come too late for the DeBoers and Jessica. Some may say that, with two couples vying to love her, Jessica is lucky. Though she has escaped being cut in two physically, however, the emotional damage may be almost as severe after she makes her car journey tomorrow.

(Photograph omitted)