Who Gets The Kid?

By ADAM COHEN

A little boy is caught up in a high-profile tug-of-war between two families and two cultures. A parent wants him back, but politically influential adults say they can offer him a better life. This might sound like Elian Gonzalez, but instead it's the case all of Chicago was talking about last week: Baby T, the toddler taken from a drug-abusing black mother and given to a powerful white Democratic politician and his wife, a state court judge.

The Elian Gonzalez saga is a one-of-a-kind international showdown, but it's also part of a rising American debate over parents' rights. In Chicago birth parents are pitted against foster parents, and some blacks are charging the courts with racial insensitivity. In the U.S. Supreme Court this week, grandparents are squaring off against parents over the right to visit their grandchildren. Across the U.S., courts are being flooded with cases involving custody and visitation for homosexuals who have been estranged from the children they parented. At the heart of all these disputes is a wrenching legal and emotional question: Who should have the right to play a part in rearing a child?

Baby T, who will be four next month, was born with cocaine in his blood. His birth mother, Tina Olison, is a single mother with a 20-year history of drug abuse. Eight days after his birth, he was placed in foster care with Edward Burke, a powerful Democratic alderman, and his wife Anne, an Illinois appeals-court judge. Over the next three years, the Burkes bonded with Baby T, while Olison stopped using drugs and got a job.

Then the fighting began. Olison campaigned to get her son back, appealing to the courts' tradition of favoring birth parents in custody cases. But her more explosive claim was that the Burkes, who had baptized Baby T as a Roman Catholic, were not suitable parents for an African-American child. Olison accused the Department of Children and Family Services of discriminating against black families. A black South Side minister called on the Burkes to adopt a white child instead. The Olison camp's argument was much like Miami Cuban Americans' claim about Elian: a whole community should have a say in how a child is reared.

The judge hearing the case didn't buy it. What mattered, he held, was the parental ties that had formed between the Burkes and Baby T over nearly four years. The court increased the number of visitation hours Olison got, but it made clear that neither a frustrated birth mother nor an ethnic group should be allowed to tear the Burke family apart.

The U.S. Supreme Court this week will hear a similarly heartrending family conflict. Jenifer and Gary Troxel, whose son Brad committed suicide in 1993, wanted increased visitation rights with their two granddaughters. When the Troxels couldn't agree with the girls' mother, Tommie Granville, on the details, they sued, under a Washington State law that allows any nonparent to be awarded visitation when it's in the "best interests of the child."

It's hard to be against grandparent visits; that's one reason all 50 states have passed laws allowing suits like the Troxels'. But it's also easy to understand Tommie Granville's argument that as the parent, she should be the one to decide how her children are reared. Granville, whose new husband adopted the girls, says she always wanted the Troxels to be involved with her children, but she disagreed with the extent and timing of their visitation demands. Says her lawyer, Catherine Smith: "The grandparents were not denied access. She went to them and said, 'How about one week a month?' and they sued."

The courts initially awarded the Troxels visitation rights: one weekend a month, one week in the summer and four hours on each grandparent's birthday. But the Washington supreme court sided with the mother, ruling that parents have a right to make decisions about their children. The court was also troubled that Washington State's statute allows visitation not only by grandparents but also by any adult who can persuade a court to order it. Mandatory visitation for nannies and soccer coaches, anyone?

The treatment of grandparent-visitation laws in the courts has varied widely. In some states (including Georgia and Florida) they've been struck down. In others (including Kentucky and Wisconsin) they've been upheld. On the U.S. Supreme Court, the conservative majority may like the idea of grandparent visitation--but they may not like the government intruding on families. One wild card: six of the nine Justices are grandparents.

But it's the battles over gay and lesbian parental rights that have been the most hotly disputed. In some cases, the homosexuals are the parents who want the government to mind its own business. That was the situation with Sharon Bottoms, a birth mother who lost custody of her five-year-old son Tyler in a high-profile 1996 case. A Virginia court ruled that a nonparent--Sharon's mother--should raise Tyler because Sharon's lesbian lifestyle made her unfit.

In other cases, homosexuals want the government's help. In visitation cases, they often argue that they have had a parental relationship and should remain part of the child's life. Penny Kazmierazak went to court last year seeking custody of Zoey, a five-year-old girl born to her partner before the couple's breakup. Kazmierazak and Pam Query had been together five years when Query underwent artificial insemination. Despite Kazmierazak's role in Zoey's birth (she paid for the insemination) and years of parenting, a Florida court turned her down because she wasn't a birth parent and had not legally adopted the child. She is now seeking visitation rights.

The trend, however, is for courts to look beyond whether a parent is gay in evaluating parenting claims. Last March a New Jersey appeals court awarded visitation rights to the former partner of a lesbian mother who had helped raise their children. And two years after the Bottoms case, a court in the same Virginia county quietly awarded custody to a lesbian mother over her former husband. A key factor: in the course of the Bottoms' appeals, the Virginia courts dropped their doctrine that gays are necessarily unfit parents.

When should courts give an adult a role in raising a child? Many family-law experts say the first step is deciding who has done the real parenting. Joan Hollinger, visiting professor of law at the University of California, Berkeley, says the decision should be made on grounds not of biology but of which adults have developed "significant relationships" with a child. Then, parents should be allowed to raise their children with minimal government intrusion, unless the child is in danger. "When you have someone who's taken on the responsibility of performing as a parent, we really need to have a good reason to disrupt that," she says.

Nonparents often have sincere motives for wanting to play a role in a child's life. Many Cuban Americans believe Elian will have a better life in the U.S. Many blacks think Baby T would benefit from an African-American upbringing. The trouble is, once courts get involved, it's an invitation for interest groups and other third parties to dictate what's right for other people's children. In a 1995 case, a judge removed a deaf child from her parents, who were not deaf, and awarded custody to her school interpreter--in part because the parents had never learned sign language.

Granville hopes the Supreme Court will use her case to make clear that parents have the last word. "Everyone thinks they know what's in the best interest of a child," says Smith. "Why not let the mother decide?"