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As one of the most nationally publicized cases, the saga of Baby Jessica is bound to fuel the movement to change the way the law is applied. The DeBoers' whole legal strategy depended on the courts being willing to shift priority away from parental rights and toward what was in the best interests of the child. That way, even if the Schmidts' claims were considered legally valid, Jessica might still remain with the DeBoers to avoid a traumatic upheaval. The approach, lawyer Scarnecchia acknowledges, was an experiment "in that it says a child's rights are paramount in a custody case."
Some courts have begun to favor nurture over nature when a custody battle erupts. Denver juvenile court judge Dana Wakefield says he invariably considers the child's needs over the parents' demands. "In my courtroom, they stay where they've been nurtured," he says flatly. "You have to consider who the child feels is the psychological parent. If they have a good bond in that home, I'm not about to break it." In the DeBoers' case, he adds, the alternatives were not necessarily better for Jessica. "The other parents didn't have a good track record to simply hand the baby over to them. And to put her in another foster home until the decision comes -- I'd rather place her in one of the two choices, in which there's a fifty-fifty chance she'd be moved rather than a place you know she'll be moved from."
But the Iowa court declared that it could not and should not pay attention to the best interests of the child, that the only issue at hand in this case was the father. The Michigan Supreme Court deferred to Iowa's decision. Only if Daniel Schmidt was found to be unfit as a parent could the courts consider the rights of the little girl. This approach has made adoption advocates draw back in fury. "When you're dealing with a child who has had a 2 1/2-year relationship with a set of de facto parents," says Harvard law professor Elizabeth Bartholet, author of Family Bonds: Adoption & the Politics of Parenting and an adoptive mother herself, "it's outrageous to say the only issue that can be thought about is whether Dan Schmidt's rights were appropriately terminated or not."
Various child-development experts weighed in with their views in amicus briefs to the court. Moving the baby now, wrote Professor Solnit, who is also a senior research scientist at the Yale Child Study Center, could pose a grave risk to her development. In his clinical work, Solnit has found that for a child so young, being removed from a home and placed with people who, however loving, are strangers to her can lead to "a loss of intellectual capacity." The hour-to-hour, day-to-day experiences of the first two to three years of life, he argues, lay the groundwork for the child's personality. "One of the basic capacities that children develop in that period is the ability to trust an adult so that they can look ahead to a world that seems to them safe and reasonable, rather than a world that is unpredictable and unstable." These are issues the courts cannot afford to ignore, Solnit contends. "The courts shouldn't make this child pay the price of their lawmaking."