In January of 2005, Jeff Jacoby of The Boston Globe wrote a heartbreaking column about the outcome of a legal case in Florida that elevated the “parental rights” of a birth-couple, who changed their minds years after having given their child up for adoption, over both the “parental rights” of the adoptive parents, who had raised the child from birth, and the emotional interest of the child himself, who was to be taken from the only home he’d ever known and sent away to live with strangers.
It outraged Mr. Jacoby, and it outraged me, that as a society we still allow such miscarriages of justice to happen in the name of some abstract concept of “rights” for parents. Make no mistake: I understand the importance of such abstractions and the dangers inherent in dismissing them in the name of some particular desirable outcome. But where is our compassion and our common sense?
Why do we not have, in the realm of family law, a principle in place that is the practical equivalent of the legal philosophical principle of stare decisis — an automatic deference to prior decisions, a presumption that overturning previous arrangements for children’s lives requires a much more compelling justification than mere adherence to the current letter of the law? Why, when considering the “welfare of the child”, is history rather than current circumstance not the dominant and determining factor?