Adopted child discovered to have been abducted as baby. Who should get custody?

In My Humble Opinion
1

Yes, it’s a hypothetical with a storytelling OP. The Pit is down the hall and to the left if you’re bothered. Today’s story is [del]plagiarized[/del] suggested by an episode of Law & Order: SVU. Or possibly Criminal Minds. I’d link to an online synopsis if I could find one, but every time I start looking for information on one of those shows I get distracted by cheesecake of either Mariska Hargitay or Paget Brewster. Anyway, here’s the sitch as I recall it:

A shady lawyer is in the business of brokering adoptions; he pays prenatal expenses and per diem fees to desperate pregnant women and then arranges private adoptions for his clients, some of whom are wealthy and others of whom are desperate. One of the pregnant women is a drug addict who miscarries late in her pregnancy. Desperate for money, she stalks and kills a pregnant woman, Kaylee, steals her baby, and passes the child off as her own. Not knowing about the miscarriage or the murder, the lawyer arranges for a middle-aged couple, **Pat **and Shawn, to adopt the baby, whom they name Scott. The lawyer’s fee, incidentally, is about two year’s combined salary for Pat & Shawn.

The drug addict dies of an overdose not long after she turns over the baby. The murder goes unsolved for years. But the case isn’t abandoned; Kaylee’s parents (Marcia and Greg) never give up hope of finding their daughter’s baby, and the lead detective on the case never really abandons it. About a decade later, the truth comes out. When it does, the grandparents sue for custody of Scott, as does his biological father, Simon, who is now quite wealthy; he was long estranged from Kaylee when she died, and she had never told him she was pregnant. Scott, who’s not quite ten years old, wants to stay with Pat & Shawn, the only family he’s ever known.

Who do you think should get custody, and why?

2

This is oddly appropriate. I reread the (young adult) Face on the Milk Cartoon books which center around a married couple whose adult daughter brings them a 3 year old child and tells them it’s hers (she’s been living with a cult for years) – turns out the kid she brought them was really a child she walked off with from a shopping mall. The original family wants the now fifteen year old girl back, which always struck me as twisted. You can’t pick up where you’ve left off when someone’s a teenager.

Similarly at age ten, I think you know who your parents are – the people who have raised you and been there for you. Maybe there could be some kind of visitation but ultimately, it would be cruel to yank a ten year old away from the only parents he’s ever known, Pat and Shawn.

3

He should stay with his adoptive parents and have visitation with bio dad and grandparents.

4

Split him down the middle and give each party half.

5

I don’t know, but if the adoptive parents had to pay the lawyer THAT much money then it seems like they must have had some idea that something wasn’t right.

6

Or maybe just that they weren’t but were bent on having a child. My thought is that they may have realized that they were essentially buying a baby, but didn’t have a clue there was murder involved.

Solomon’s dead. I killed him with my own hands. Poncy bastard caught me cheating at Connect Four.

7

This would be my solution, though the child should get a say in if he wants to see his bio relatives.

8

Your hypothetical reminds me of an actual issue : the case of babies taken from (later executed) parents arrested under the rule of the Argentinian Junta and handed out to, for instance, members of the secret police. Really hard situation for people who discovered that the man whom they believed was their father had tortured their real parents.

9

A similar situation was covered on an episode of This American Life, called What Happened at Dos Erres. A Guatemalan-born, now-American young man discovered - via DNA testing - that he was not the biological child of the man who he knew as his father. His actual father was away when his village was slaughtered by Guatemalan military seeking to root out rebels. He was raised by one of the men who helped slaughter his entire village, who claimed to his family that he’d fathered a son and the mother had died (or something).

Voting for custody by the adoptive parents and visitation for the biological family. Adoptions often cost a crapload of money, especially if you’re helping to support the bio-mom during her pregnancy, so that’s not necessarily a giveaway of anything unseemly going on.

10

I think he should stay with the family he is with now, but they should allow him and his natural family time together. They all need to have a relationship.

11

OK, if you say so.

12

You said she attacked a pregnant lady and stole the baby? How does a crack head perform a C-Section and steal a fetus? Seems like a specialized skill that the average crack head wouldn’t have.

13

I remember this L&O episode.

At the end, his bio father gets custody. He agrees to let his son freely visit his grandparents and adoptive parents.

This situation is too complicated to deal with. Legally, the father gets the rights unless he’s deemed to be an irresponsible idiot, but this kid is already happy, already has friends, parents, a life. At his age (what was it, 12?), he’s not legally old enough where a court will let him choose. Also ridiculous.

For me, the best outcome would be for the kid to choose where to live and that would be with his adoptive family. That should be upheld legally, unless the bio dad can prove the adoptive parents are raving lunatics.

14

Actually (assuming I remember the episode correctly, which I may well not), that’s a typo; the murder victim in the story had already given birth. My fault.

Having said that, there have been instances of crazy people attacking pregnant women and cutting out their fetuses. Here’a a couple:

15

This sort of crime, while rare, does indeed happen. You don’t have to have any special skills if you don’t care about the mother’s life. The women who kill to get babies | Women | The Guardian

16

My thoughts exactly, the child should go back to his biological father or grandparents or a guardian that doesn’t see him as a commodity to be bought and sold.

17

Aaaand…the idea of a biological father objecting to an adoption long after the fact isn’t without precedent either:

New Mexico dad’s adoption case shakes up Utah courts

NM vs Huddleston custody case

Two different cases, both of which happened in New Mexico - not the most populous state in the nation. Who should get custody in the hypothetical case? I don’t know - which one makes the most sense to the story?

18

Exactly. I would say that unless Pat and Shawn can be shown to be terrible parents, or Scott himself specifically requests to go live with a biological relative, any option other than keeping him with the people who have raised him for ten years is just cruel.

19

I suspect friend Skald spent his recent sabbatical drafting exam questions for law professors.

That noted, this one is tricky. In my state, in an adoption where the father is unknown, he is served by publication, with a summons addressed to "The Unknown Father of a minor child born on (date here) in (city/county/state here). He has 30 days from the date of first publication to enter his appearance and contest the adoption.

The mother has normally signed a consent to adoption, which is generally irrevocable.

On the appointed court date, the adoptive parents appear with their lawyer. The Court will have the unknown father called three times in open court. If there is no answer (and I have never been present for a time when there was an answer, though I have nudged a fellow member of the bar and urged him to step forward) the judge will then conduct further proceedings in chambers, and assuming the GAL recommendation is in favor of the adoption, and the judge finds it to be in the best interest of the child, the adoption is finalized.

However, on the facts presented here, arguably, the unknown father was not properly served, as the child’s true date of birth was probably not correctly listed in the summons by publication. Further, there is probably not a valid consent to adoption signed by the mother. Arguably, then, the adoption is void because the Court lacked proper jurisdiction over the parties.

We then might turn to traditional custody analysis. The polestar consideration there is the best interest of the child. The child, being under the age of 12, is not entitled to express a preference concerning custody, but a judge might still interview the child in chambers, and certainly the GAL would talk at length with the child, and all other parties in interest prior to making a recommendation.

The adoptive parents could argue that the father has constructively abandoned the child by not being a part of the child’s life for so long. He could counter argue that his due process rights were violated by the defective summons, and he has been searching for the child tirelessly ever since.

The grandparents’ claim here appears to be the weakest, as they have had no significant contact with the child, and would lose to the father in a custody battle unless they could show abandonment, abuse/neglect, or prove him to be otherwise unfit.

The adoptive parents have a strong claim, in that they have raised the child as their own for years, the child knows no other home, and might be traumatized by being removed from their care.

The father also has a strong claim, as he is the biological father, did not intentionally abandon the child, and really had no fair chance to assert his rights until the instant case.

I think it could go either way. If I were the GAL, I would want to explore the option of some type of joint custody arrangement, to allow the adoptive parents and the father to have liberal access to the child. I might also entertain a request for grandparent visitation–assuming the parties are all fit and proper persons to have contact with a child, and appear capable of reasonable cooperation.

20

The bio dad should get legal custody, with the proviso that the kid has reasonable access to his adoptive parents (so no moving towns or such). Morally, while the kid’s wishes should be respected, he is still, after all, a kid. It would be different if his dad was a deadbeat or something, but he (by the OP) seems like a good guy who just didn’t know. Plus the wealthy dad is materially better for the kid’s future, even if he’s too young to see the benefits of that.