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Court Orders Adopted Child Returned to Biological Father

January 25, 1995

SPRINGFIELD, Ill. (AP) _ For a second time, the Illinois Supreme Court on Wednesday gave custody of Baby Richard to the biological father he has never met, taking the child from the adoptive parents who have raised him all of his 3 1/2 years.

The ruling was the latest round in a heart-wrenching legal battle that raised troubling questions about the finality of adoptions and the rights of biological parents, and also drew the state Supreme Court, Gov. Jim Edgar and the state Legislature into a fierce public dispute.

Richard was put up for adoption by his mother, Daniela Janikova, who believed the boy’s father, Otakar Kirchner, had abandoned her. Kirchner, who at first was led to believe the boy had died, began fighting for custody before the boy was 2 months old. He and Janikova have since married.

Last summer, the justices ruled that Kirchner had been denied his parental rights and invalidated the adoption by a suburban Chicago couple. That ruling caused a public uproar.

On Wednesday, the justices granted Kirchner’s request for an order that the child be turned over to him. The adoptive parents, identified in court documents as John and Jane Doe, had argued that they should retain custody under a new state law prompted by the case. The law allows courts to consider a child’s best interests when an adoption fails.

Jerold Solovy, the lawyer for the adoptive family, said he would ask the state Supreme Court to delay the effect of its ruling. He also indicated he would appeal to the U.S. Supreme Court, which earlier refused to hear the case.

``This ruling, in my humble judgment, is contrary to all Illinois law, all notions of fairness, and I’m astounded,″ Solovy said.

``Clearly, the Supreme Court has ruled that the child was chattel,″ said Cook County Public Guardian Patrick Murphy, who had sided with the adoptive parents.

The state court’s order came with extraordinary speed, just hours after lawyers for both sides argued the issue before the justices. The court usually doesn’t rule for weeks or months after hearing arguments on a case.

``I think the swiftness of this seems to indicate they’re sending a message,″ said Kirchner’s attorney, Loren Heinemann. ``They’re saying get this nonsense over with and get it over with now.″

Exactly how the boy was to be given to Kirchner was not spelled out by the court. The justices did not immediately issue an opinion explaining their ruling.

Kirchner has never talked to his son, seen him, or even seen a picture of the boy. Kirchner prefers a gradual transition from the Does, according to his lawyer, not a sudden removal from the home as in the widely publicized Baby Jessica case in Michigan.

In that case, the child was taken from parents who had raised her for two years but never formally adopted her and returned to the birth mother and father. The birth mother named the wrong man as father, so the child’s biological father had not given up his parental rights.

``We intend to be very gracious in victory ... even though the Does have slapped our hands every step of the way,″ Heinemann said.

Lawyers for the parents argued that Kirchner lied under oath about his efforts to learn the baby’s fate and that because of the passage of time, it was in the boy’s best interest to remain with the adoptive parents.

But while Murphy was arguing such a point Wednesday, Chief Justice Michael A. Bilandic interrupted him. ``The biological father ... came into the adoption process very early. If the child was returned to him then and there we would have never heard of this case,″ Bilandic said.

The Does have doggedly protected the boy’s privacy, refusing to reveal his real name, the color of his eyes or hair, or where he goes to preschool. They have never told Richard they are not his real parents but have told their biological son that he could lose his brother.

Adoption experts said the case posed difficult questions about how to balance the interests of the child and adoptive parents against the rights of fathers who are not involved in the decision to give up a child for adoption.

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