Edward S. Hume, M.D., J.D.: Chinadopt
Children as
Property: American Law
Up until recently, custody of a child was determined by a legal doctrine which made its key issue the "best interests of the child." However, since the advent of joint custody statutes, courts have been forced to award "custody" jointly to both parents in divorces. These joint custody statutes came about as divorced fathers began agitating to have a say in their children's lives, to fight their children's being cut out of their lives by ex-wives.
Unfortunately, these statutes did not fit reality very well: children still remained mostly in the home of one or another parent. So family courts began recognizing "physical" and "legal" custody. Unfortunately, there is a legal parallel for this. It's called real estate law.
In real estate one can have a legal title to a piece of property while someone else has a legal right to use the property. Examples include landlords who may not evict tenants as long as the tenants are paying rent and banks who may not foreclose while the home-"owner" is keeping the mortgage paid up. Persons are said to have "legal title" (it's technically their property) or "equitable title" (they have a right to use the property). In family law, there is "legal custody" and "physical custody."
At about the same time there arose some cases involving various biological relatives (not just parents: grandparents, aunts, uncles) getting visitation rights, and long-lost biological parents having their biological children given back to them. Perhaps this was an extension of the ex-husbands' campaign noted above (I believe so). Perhaps it arose independently. In any case, the legal doctrine seems now to be that biological parents have "rights" to their offspring, children they have not seen in years or children they have never seen. The "best interests of the child" seems to be mere lip service until a child reaches an age where the court will listen to his or her preferences. Ages 11, 12, and 13 appear common.
All of this is quite ugly, and a classic outcome of our
increasingly procedure-before-justice legal system. The various
judges of the top courts of our fifty states should feel ashamed
of themselves; but of course they don't
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Why Adopt a Child from China?