Court asked to change its 'Baby Sam' decision

By ANITA KUMAR

After almost five years, the tug of war between little Sam Johnson's adoptive parents and biological father seemed to be over.

But on Friday, Mark and Tracy Johnson made sure it wasn't.

The Johnsons asked the Alabama Supreme Court to reconsider its decision last month to give their 4-year-old adopted son to his biological father in New Port Richey.

While the state's high court considers the request, attorneys for both sides agree the law allows Sam to remain with the Johnsons in Tuscaloosa, Ala.

"It's just another delay. I'm used to them doing this," said Christopher Vietri, Sam's biological father. "What they're doing is just not right."

The Johnsons' attorney in Alabama, Scott Stapp, said that the motion was mailed to the Supreme Court on Friday. A court clerk said it would be accepted next week as long as it was postmarked by Friday.

It's not clear how long it will take -- days, weeks or even months -- for the court to make its decision. If the Johnsons lose, they will have about two weeks to a month to give Sam to Vietri.

Anthony Marchese, the Johnsons' Tampa attorney, said they are asking the court to reconsider its 5-4 decision from last month for two reasons:

The court should not have changed a Tuscaloosa judge's findings two years ago that Vietri abandoned Sam's biological mother while she was pregnant. The court also should have accepted the concept of "prebirth abandonment," which calls for a biological father to lose rights to his child if he fails to provide sufficient emotional and financial support to the mother during pregnancy, the Johnsons argue.

Both the Alabama Trial Lawyers Association and Lifeline Children's Service Inc. notified the Supreme Court on Friday that they plan to file motions in support of holding a rehearing.

Larry Liebling, Vietri's Clearwater attorney, said he had not seen the motion Friday but described both of the Johnsons' reasons for appeal as "nonsense." Vietri did not abandon his girlfriend, but even if he did, it would be irrelevant, Liebling said. The Johnsons could not be reached for comment.

Sam, who has lived with the Johnsons since he was 3 days old, does not yet know about the court ruling. Vietri and his family -- his wife, Erika, and their 3-year-old son, Nicholas -- plan to travel to Tuscaloosa so Sam can get to know them, but not until the appeals are complete, Liebling said.

The Johnsons have said they probably will appeal further -- to the U.S. Supreme Court -- if they are unsuccessful at the local level, but only if Sam can stay with them while the legal wrangling continues. Vietri said Friday that he will fight if the Alabama court reverses its decision.

The Johnsons and Vietri have been battling over who should have custody of Sam since he was 11 weeks old.

Sam's 19-year-old biological mother gave him to a Tampa adoption agency at birth and said she didn't know who the father was. Vietri had broken up with the woman, and she told him the baby had been stillborn.

Vietri began to suspect his child hadn't died and filed for custody.

Two years ago, a Tuscaloosa judge ruled the Johnsons should have him. An appeals court upheld the decision, but last month, after having the case for more than 18 months, the Alabama Supreme Court reversed the decision.