Birth parents' battle: Custody dispute is costly in money and emotion

Karen Bouffard

January 16, 2009 / The Detroit News

ECORSE-- For most of his short life, he answered to two names, called two couples Mom and Dad, was schooled in two religions and lived in two cities.

But by a court ruling Christmas Eve, the twin identities of 5-year-old Cody Barnett were narrowed to one.

Kenneth Barnett and Christine Wolfe of Ecorse learned Dec. 24 that the state Court of Appeals sided with them in a nearly five-year battle for their birth son Cody -- a battle that cost them their savings, their home and precious years with their child

But the decision devastated Phillip and Phyllis Unthank of Dearborn, prospective adoptive parents who had custody of the boy since his birth but lost it last February when Barnett and Wolfe were granted full custody. The Unthanks have until Feb. 4 to decide whether to take their battle to the state Supreme Court. Birmingham attorney John F. Mills said this week they have not yet decided whether to file a leave to appeal.

"My mom and dad won me. They blocked my (other) name," Cody said about the family's trip to Caesarland, a kids pizza joint and playground, after the ruling.

Asked if he misses the Unthanks, he replied, "A little bit."

Advocates laud the ruling, which underscores parents' constitutional rights to raise children regardless of their circumstances as long as they are fit. They say birth parents frequently give up or lose such battles because adoptive parents typically have more money to spend on qualified representation and extended court fights. But adoptive parents and their supporters sympathize with the Unthanks, and say courts sometimes favor birth parents over the best interests of the child.

"I would like to say a lot, but I don't want Duane, Cody, whoever -- that sweet little boy -- put in the middle of this," said Phyllis Unthank, 51, who refused to comment further on the case.

Child advocates on both sides say this case -- marked by lengthy delays, jurisdictional wrangling and questionable rulings -- should never have lagged so long in the Wayne County court system. The Court of Appeals ruled both Wayne County's probate and circuit courts erred in the case.

Experts say the case illustrates why Wayne and other counties should have just one court and one judge to decide all of a family's issues, from divorce to custody -- something mandated by state lawmakers in 1996, but which many counties have not fully implemented.

The case mirrors the 1993 "Baby Jessica" case in which Jan and Roberta DeBoer of Washtenaw County were forced to surrender a 2 1/2 -year-old girl they had raised since birth to her biological parents, Cara Clausen and Daniel Schmidt of Iowa.

In both cases, the birth mother initially gave the child to a prospective adoptive couple, and the birth father later came forward to claim custody. The birth parents, in each case, later got back together and united in their fight to reclaim the child. In both cases, the child lived and bonded with the couple who hoped to adopt while the case dragged on in court. But ultimately they lost the child to the birth parents.

In deciding on Cody, the state appeals court cited the Michigan Supreme Court's ruling on Baby Jessica. In both cases, it was determined that the prospective adoptive parents had no claim to the child simply by virtue of the child having resided with them.

Father doubted paternity

Cody's case opens old wounds for Roberta DeBoer, who said she still grieves over parting with the baby she called "Jessica."

"Adoption is a legal term; it has nothing to do with parenting, nothing at all," DeBoer said. "Once you have a baby that you care for day in and day out and you in every right believe that child is yours -- those parents became parents the moment they took that child in their arms."

In Cody's case, the entanglement started even before he was born on Jan. 23, 2003, at Dearborn's Oakwood Hospital, six weeks after his parents' bitter divorce. Wolfe admitted she had strayed from the marriage, and Barnett refused to acknowledge paternity without a DNA test. Wayne County Circuit Judge William Callahan entered a divorce judgment that awarded the two joint legal custody of their older daughter, Samantha, but made no provision for their unborn child.

Wolfe, a hairdresser, was fearful of raising two children as a single parent. But a relative knew the Unthanks, a childless couple anxious to adopt, and urged the adoption as a solution.

The Unthanks took the baby home from the hospital with temporary custody and a written power of attorney to decide his medical care. But genetic testing in February proved Barnett was the father of Cody.

Barnett filed motions for custody in both circuit and probate court and was denied. Meanwhile, the Unthanks were given temporary custody while motions were argued in both courts.

When Cody was about 18 months old, Wolfe revoked her power of attorney and demanded her child back -- but the Unthanks refused. United by common interest, Wolfe and Barnett reunited as a couple. Already parents to Samantha, now 7, they had another daughter, Brooklyn, now 2 years old. They now wanted Cody to join the family.

Jurisdiction in question

The case lagged in part because Wayne County Probate Judge June Blackwell-Hatcher believed Circuit Judge Callahan had jurisdiction of the custody issue, since he had settled the divorce. Callahan disagreed. Both judges ended up hearing some motions in the case. Ultimately, the State Court Administrative Office temporarily named Blackwell-Hatcher to the Circuit Court for the purpose of deciding custody.

"I don't think its very frequent that this kind of rat's nest occurs with this level of confusion, but this case points out general flaws in the system," said University of Michigan law professor Donald Duquette, director of the Child Advocacy Law Clinic at the University of Michigan Law School.

Duquette said the jurisdictional dispute between Callahan and Blackwell-Hatcher wouldn't have happened if the county had a family court division with just one judge handling the divorce, child support, custody and juvenile issues.

Some counties have implemented such courts, but many -- including Wayne -- still have more than one judge involved.

"If there had been one judge, if the circuit judge had taken jurisdiction for the whole case, it wouldn't have gone down this road," Duquette said.

Duquette also said Barnett should have been granted legal custody from the beginning -- and probably would have if he'd had legal representation. Barnett said he didn't have a lawyer until later in the case.

Although Barnett had been in trouble with the law, and even served time in prison for writing a bad check before Cody was born, there was no history of child abuse or neglect.

Callahan defended his decision to turn down Barnett's bid for custody, saying he appeared not to be fit.

"There were questions as to Mr. Barnett's fitness; he didn't respond to a lot of stuff," Callahan said. "Mr. Barnett was not present in court on most dates."

Wolfe and Barnett pooled their resources to hire Ann Arbor attorney Marian Faupel, who represented the birth parents in the Baby Jessica case.

The couple has paid about $30,000 in legal fees. At times, they couldn't make mortgage payments, and their home in Dearborn Heights was foreclosed on. They are in debt for about another $80,000.

"Most people would have lost their child -- that's the tactic," said Wolfe of the many motions and counter-motions brought by the Unthanks. "It's to force you to give up."

In July 2005, the probate judge allowed Wolfe visitation, starting with a few hours a day several days a week.

Visitation was slowly increased until the child was spending half his time with each couple. Thursday evening through Sunday he was Cody Thomas Barnett. Sunday evening to Thursday, he was Duane Farrell Unthank.

That abruptly ended Feb. 20, when Blackwell-Hatcher issued her decision granting full custody to Wolfe. Cody hasn't seen the Unthanks since, and knows the Dec. 24 ruling means he never may again. He's now known simply as Cody Barnett.

Asked which name he liked better, Cody or Duane, he said, "I liked them both the same."

You can reach Karen Bouffard at (734) 462-2206 or kbouffard@detnews.com.