The recent Court of Appeals case on a competing adoption petition litigation issued on August 22, 2013 (citation below) defined with more specificity the meaning of “weighty consideration” given to parents’ choice of a fit custodian.  Here the parents whom have been adjudicated as having neglected their children consented to E.A., the great aunt’s adoption petition competing against W.s the foster parents.   The attachment study that was conducted did not factor or involved the children’s attachment to E.A.  In short, it was one sided attachment evaluation.  The study clearly established though a secure attachment to W.s – the foster parents.   The study also deemed the impact of removal as devastating.   Another bonding study conducted by the assessment center between the petitioners, parents and the children also favored the W.s – that the children were most attached to W.s. That removal from their home would possibly cause high risk of derailment.

It appears however that the Court’s opinion in the matter way swayed by Dr. Missar’s testimony, which only offered criticism of the two evaluations conducted.  That is “Dr. Frank was not in a position to offer an opinion about the children’s attachment to any party because she had only conducted an assessment of their bonding.  As for Dr. Venza’s evaluation, Dr. Missar found the primary limitation to be that he did not assess the children’s attachment to their biological family, including E.A.”

The Court in ruling that the trial court did not give weighty consideration to the parent’s preferred custodian stated: although the competing petitioner need not necessarily show that the preferred petitioner is unfit in order to prevail, if the preferred caregiver is a fit custodian, the competing petitioner must present clear and convincing evidence that the custodial arrangement with the preferred petitioner is “clearly contrary” to the children’s best interests.       Such evidence was lacking as there was no significant bonding study or an attachment study conducted involving the EA the parents’ choice.

In another word: if the petitioner preferred by the natural parents is fit suitable, and the custodial arrangement, including the relationship the natural parents will have with the child, will not harm the child, the award of custody to the preferred caregiver is, as a matter of law, in the child’s best interest.

In conclusion the Court ruled that absent a fair and equitable attachment and bonding study involving EA, the trial court cannot rule as a matter of law that there “is clear and convincing evidence in the record that a custodial relationship, preferred by the biological parents, with an otherwise fit and suitable caregiver would be clearly2 contrary to the children’s best interest merely because the children are found to be attached to the competing petitioner.”

This case is consistent with the Court of Appeals other recently published cases where the Court is requiring more deference by the trial court when there is either a fit parent ready to assume care, or a designated fit relative selected and preferred by the biological parents to assume care.  This case and its predecessors are clear signal that biological ties and deference cannot be easy overlooked or curtailed without significant consideration and as the Court words it “a weighty consideration.”

IN RE TA.L; A.H. & T.L., APPELLANTS.

IN RE A.L.; A.H. & T.L., APPELLANTS.

IN RE PETITION OF R.W. & A.W.; A.H., T.L., & E.A., APPELLANTS.

IN RE PETITION OF E.A., APPELLANT

Nos. 11-FS-1217, 11-FS-1218, 11-FS-1255, 11-FS-1256, 11-FS-1257, 11-FS-1258, 11-FS-1259, 11-FS-1260