WASHINGTON -- Pleas to the U.S. Supreme Court to let a small Illinois boy stay with the couple he has lived with most of his life failed yesterday, as the justices refused for the third time in two years to sort out the rights of parents and children.
Acting on the latest of several emotionally charged disputes between biological parents and couples hoping for adoption, the court refused over two justices' dissents to delay a state court order that the Illinois boy, now nearly 4, be handed over immediately to his natural father.
The boy -- named in court papers only as "Baby Boy Richard" -- has been at the center of an angry controversy between Illinois courts, the governor and the legislature, but with the state Supreme Court having the last word in favor of the father.
Lawyers for Richard and the suburban Chicago couple who now have him had filed separate pleas asking the justices to postpone any surrender until a state court could hold a hearing on what would be best for him. The boy's interests were put before the court by a temporary legal guardian.
The Illinois Supreme Court barred such a hearing, saying the father was a fit parent, and that meant he had parental rights to Richard. State courts are not even to consider the child's interests in such a situation, the state court said.
At issue in the case is a recurring contest between constitutional rights that the Supreme Court has never yet agreed to resolve. On the one side are claims by biological parents that they have a clear-cut, priority right to raise their children. That competes with claims by those who have custody of a child that they have a right to maintain that relationship, and claims by some children that they have an independent right to be with the family best able to raise them.
The Supreme Court noted in a 1989 ruling in a California custody case that it was still an open issue whether the Constitution gives a child any right to be placed in a family setting most suited to the child's "best interests."
Since then, the court has passed up all chances to face that issue. With yesterday's action in the case of the Illinois boy, the court has twice refused to consider the fate of Baby Richard. It did the same thing in the summer of 1993 in a celebrated case of Jessica DeBoer, who was returned to her biological parents after living with another couple for two years.
While the Supreme Court gave no reason for its latest action, dissenting Justices Sandra Day O'Connor and Stephen G. Breyer cited the "wrenching factual circumstances" of these cases and argued that the court should have granted a postponement for no longer than 45 days.
Those two did not call for any specific action, merely contending that there should be "a short delay" before the father gains custody of the child. They noted that the Illinois Supreme Court has not even explained its order for immediate surrender of the child to its father.
Richard's father, Otakar Kirchner, a restaurant manager from Chicago, had told the court that he is "committed to a slow and gradual transition process which is child-centered," and done under the watch of "a mental health professional." It was not immediately clear yesterday when he would receive the child.
Richard will be 4 years old in about a month. He has never met the father who has been battling with the couple rearing him since he was an infant.
The couple, identified in legal documents as John and Jane Doe, have had Richard since he was 4 days old and at one point formally adopted him. The adoption, however, has since been nullified in state court. The Illinois Supreme Court has ruled twice in the father's favor.
The boy's biological mother gave up the child for adoption, and the Does legally adopted him after Mr. Kirchner left the country for a time, before Richard was born. The mother, Daniela Janikova, and Mr. Kirchner have now reunited, are married, and are expecting a second child.
There has never been any question that the mother gave up her rights to Richard. But the father has never forfeited those rights, Illinois courts have found, and those rights give him full legal claim to Richard, overriding any claims of the boy or of the Does.