Choosing Parents in Iowa

"The primary consideration is the best interest of the child," declared the Iowa Supreme Court in the case of Mark Painter, 7. "It is not our prerogative to determine custody upon our choice of one of two ways of life." Then, seizing the prerogative it said it did not have, the court took Mark away from his "bohemian" father, Writer-Photographer Harold W. Painter, 34, and gave him to his "conventional" maternal grandparents, Dwight and Margaret Bannister, both 60. Rarely has a custody decision hiked legal eyebrows higher across the country.

Father Y. Father. Bohemian Harold Painter is, in fact, a bright, creative Californian with a superficially rootless history: his parents were divorced during his infancy; he grew up in a foster home, joined the Navy at 17, later quit college to become a newspaper reporter in Alaska and the state of Washington. In 1957 Painter married a fellow Anchorage reporter, Jeanne Bannister, despite Jeanne's parents' disapproval, and the couple lived and wrote together happily in Pullman, Wash. One day in 1962, while Painter stayed home tending Mark, his wife drove their daughter to nursery school; the car skidded on an icy road and Jeanne and the little girl were killed in a head-on crash.

Distraught, and anxious to give himself and his son a chance to recover from the tragedy, Painter sent Mark to live temporarily with his wife's parents on their 80-acre farm in Ames, Iowa. In the fall of 1964, Painter married his second wife, Marylyn, an artist, a Phi Beta Kappa Berkeley graduate and a former Red Cross worker in Japan and Korea. The newlyweds moved into a ramshackle old Victorian house in Walnut Creek near San Francisco and concentrated on turning it into a warm, imaginatively decorated home for themselves and Mark. Formerly night copy editor of the Oakland Tribune, Painter switched to freelance writing and became a $167-a-week designer of visual aids at the 2,000-boy Job Corps center in nearby Pleasanton. To Center Director Steve Uslan, Painter is "uniquely suited" to his job. "His ability to draw kids out of their shells is quite remarkable." The happy father thought it was time to bring his son home. By then, though, the Bannisters had grown deeply fond of Mark; they resisted all requests for his return. Last June the Painters tried to retrieve the boy at his school in Ames. After being rebuffed by school officials, they filed a writ of habeas corpus in the county district court, which ordered that Mark be sent back to his father; pending the Bannisters' appeal, Mark stayed in Ames.

Yen for Zen. In upholding that appeal, the Iowa Supreme Court relied heavily on the opinion of Iowa State University Child Psychologist Glenn R. Hawkes, who said he had "spent approximately 25 hours acquiring information about Mark and the Bannisters," but admittedly dug up little or no information about the Painters. According to Hawkes, Bannister has become so established as Mark's "father figure" that the odds are "very high" the boy "will go wrong if he is returned to his father."

Speaking for the court, Justice William C. Stuart noted that the gentle, ailing, "highly respected" Mr. Bannister "has served on the school board and regularly teaches a Sunday-school class at the Gilbert Congregational Church." By contrast, Justice Stuart pointed to Painter's seven jobs in ten years, asserted that he is "either an agnostic or an atheist and has no concern for formal religious training. He has read a lot of Zen Buddhism." Though Marylyn is a Roman Catholic, the couple planned to send Mark to a Congregational church "on an irregular schedule." Painter, added Stuart, is "a political liberal."

Stability v. Stimulation. What kind of life would Mark have with his father? "We believe it would be unstable, unconventional, arty, bohemian and probably intellectually stimulating," answered Justice Stuart. Although the boy "would have more freedom of conduct and thought, with an opportunity to develop his individual talents," Stuart went on, "we believe security and stability in the home are more important than intellectual stimulation." While his grandparents will be more than 70 by the time he graduates from high school, "the Bannister home provides Mark with a stable, dependable, conventional, middle-class Middle West background and an opportunity for a college education and profession." In light of Psychologist Hawkes's "warnings of dire consequences," the court said it could not send Mark to "an uncertain future in his father's home. We do not believe we have the moral right to gamble with this child's future."

Despite that analysis, public reaction last week seemed to sharply favor the Painters. In an angry letter to the court, Eugene Austin, chairman of the Nebraska Council on Family Law, called the ruling "an act of tyranny, pure and simple." The Iowa Civil Liberties Union discussed an appeal to the U.S. Supreme Court, perhaps on the ground that the decision violated Painter's religious freedom. Painter himself was bitter. "What they've said," he commented, "is that if parents don't conform to a middle-class Middle Western mode of living, they face loss of their children. By that standard, several million Americans would have to give up their kids. I don't drive a hay wagon, I don't go to church on Sunday, I don't grow corn in my backyard, and I've never voted for McKinley. This, in the eyes of Iowa, makes me a bohemian."

Ironically, the tearful Marylyn Painter sounded practically lowan. "We love our home," she said. "We've sewed curtains and fixed Mark's room. We're quiet people. We watch TV, baby-sit for friends, play chess. I do play the guitar --that sounds bohemian, I guess."

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