Hard to decide on this one, but it brings up the question of whether consideration of "the best interests of the child" currently carries less legal weight in relation to an estranged mother's presumed parental rights than has been given that concept in relation to those of estranged fathers.

oneiorosgrip · 2012-06-08T15:31:43+00:00

This one is a toughie, not in figuring out what would be best for the child, but in figuring out what the law and the courts should/will decide.

Here is another article on the case: Court battle over 6-year-old boy continues between biological mother, unrelated Maryville man

The undisputed facts as presented by the articles:

The child has been raised for six years by Jon McMillan.
Kelly McCord is the child's biological mother.
McMillan is not the child's biological father.
The child's biological father has had no contact and is in prison.
MacCord did not legally seek custody for the first 15 months after the child's birth.
A Texas court has ruled that McMillan is not the biological father.

Disputed aspects of the case:
* McMillan and his estranged ex-wife both claim that McCord gave the child up to them because she could not raise him.
* McCord claims that McMillan had his name put on the birth certificate as the child's father without her consent, then kidnapped the baby and ran.
* McCord claims that she was unable to locate McMillan and the baby during the 15 months prior to her filing for custody.

On one hand, if McMillan did what he's accused of, he and his wife (who had to have cooperated, at least by not taking action to stop him) are kidnappers, and should be prosecuted in criminal court for that. The child should be reunited with his mother, and given counseling to help him work through the loss of his known family and the huge changes that he'd be dealing with.

One thing that makes me doubt this scenario is that the mother is not described as still leveling criminal allegations here. If someone kidnapped my baby, I'd never stop using that word, and I'd never stop pushing for prosecution, regardless of who viewed it as what. Also, why has she not sued the hospital for negligently letting this happen? I'd think that, unless the hospital had proof of her consent, allowing a non-parent to claim paternity and kidnap a baby while the mother was incapacitated by hospital-administered drugs would be a clear cut case of hospital negligence. I also wonder about her drug claim. I had an emergency c-section, with an epidural. I was not mentally incapacitated by the drugs in that shot, and I'm sensitive to painkillers. I wonder what drugs she would have been given that would make her so unaware.

On the other hand, if McMillan's side of the story is true, and McCord gave up her child, then changed her mind, it can't possibly be in the best interests of the child to alter custody now. You can't uproot a kid at 6 years old and play musical-parents like that without hurting him. It's awful to the child. He'd be taken from his home, from his trusted and loved Dad, and thrust into a new and strange (to him) living situation with a woman who did not raise and nurture him. If the court does this, it will not be about serving the best interests of the child. It will be all about the mother's parental rights, and I wonder... would they give the same consideration to a father under similar circumstances? If it were the father (were he not in jail) seeking custody, what would his rights be? Should the mother's rights under the described circumstances be any greater? (Note: I don't think so.)

I also think Author Robert Franklin's assessment of the hospital's role sounds correct. When I gave birth, they took precautions to the Nth degree in making sure the right baby went home with the right parents. One of the first questions (right after the emergency are-you-okay-questions) the staff asked me was (indicating my husband) "Is he the father?" and (indicating my mother) "Who is this person?" followed by "Do you want them both in the room with you during labor?" They did not ask anyone these questions but me. I was the end-all-be-all authority on who was who and what was what. I could have said no, and they would have kept him out of the delivery room and left his name off of the certificate. Also, I knew the day my son's birth certificate was submitted that they put the wrong surname (my maiden name) on it. The hospital's staff refused to change that, but I knew. I find it far-fetched that McCord was not similarly informed.

The story that McMillan somehow succeeded in sneaking his name onto the birth certificate without confirmation from the mother is very sketchy. Maybe not impossible, but far-fetched as hell. Because that claim is a central part of McCord's story, and because I'm not seeing anything about McCord continuing to push criminal kidnapping allegations against McMillan related to this (in fact, she's willing to share custody,) I strongly doubt the story's veracity, and suspect that this really is a case of adoption-regret.

If that is the case, and especially considering what author Sheila Burke writes is true ("Both sides say they are willing to share custody. They just can't agree on how often the other should see the boy.") then would it not be best to leave custody with the man the child knows as his father, and set up a court-ordered visitation schedule for McCord? That seems to me to be a solution which would have the most positive impact on the child's life (he would not lose his father, but now he'd have contact with his mother, too,) with the least disruption for him.

chavelah · 2012-06-08T15:48:54+00:00

... and this is why adoptions need to be carried out thought the courts, not through lies and subterfuge and informal agreements.

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