‘Natural Law,’ Uneasy Rulings

The legal system has determined that O.J. Simpson beat his wife. It has concluded, by a preponderance of evidence, that he later slashed her to death. Yet the same system has allowed him to return home, to raise two children.

The apparent discord in those rulings has sent radio commentators, columnists and much of the public reeling. Will Justin and Sydney be safe? Have child custody laws run hopelessly afoul of common sense? Or has America simply lost its moral compass?

Drawing conclusions from the case of Orenthal James Simpson is, as usual, problematic. He has been found liable for two brutal murders, but is not a criminal in the eyes of the law.

Yet, as anomalous as his position may seem, Simpson is far from alone in returning to parenthood under the cloud of a criminal act. In Florida, a father recently won custody of his 12-year-old daughter, even though the man had shot his first wife to death in an earlier custody dispute. Closer to home, in Altadena, a father who spent 6 1/2 years in prison for rape and then another year for striking a woman got custody last year of his 1 1/2-year-old daughter. In a 1976 appellate case, a San Diego man serving a prison term for murdering his wife was granted custody of his four children, upon his freedom.

In each of these cases, judges found support in the U.S. Constitution and in state laws that have their roots in an age-old notion of “natural law”--that parents are the best keepers of their children.

But that tradition, which leaves judges with wide discretion to decide what is best for families, has recently come under fire. Simpson’s case already has inspired one state Assembly member to propose that parents who kill their spouses should forever forfeit their parental rights.

“We are now living in the eye of the storm,” said Joan Heifetz Hollinger, visiting professor of law at UC Berkeley’s Boalt Hall and author of much of California’s adoption law. “We are moving from a very traditional time where you do everything you can to avoid terminating parental rights . . . toward a redefinition, where child protection [is seen as] being different than simply preserving families.”

From New York to California, a string of high-publicity cases has provoked public outrage when children either died or were emotionally traumatized after being returned to their birth parents.

Author and radio talk show ethicist Dennis Prager believes that those cases, and Simpson’s, are evidence of an obsession in custody cases with “the primitive notion” that blood relationships are paramount.

“Blood is only important to adults. It fascinates judges and social workers,” said Prager. “My children have never asked me if I am their sperm father. They don’t care. What’s important to children is love and caring.”

In Simpson’s Orange County custody case, lawyers and a Superior Court judge were guided by state law that requires a consideration of the best interests of children. Paradoxically, the law also insists that parents remain in control unless they are dramatically unfit.

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In her first interviews about the case, the lawyer for Justin, 8, and Sydney, 11, said there was no evidence that the children would suffer with their father and plenty of reason to believe they wanted to be with him.

Indeed, attorney Marjorie G. Fuller said that an exhaustive review convinced her that the there would be no harm in returning the children to Simpson. She said she based her recommendation on numerous interviews with family members, including Lou and Juditha Brown, the maternal grandparents who had cared for the children for more than two years at their Orange County home.

Interviews with many others, and even words left behind by Nicole Brown Simpson, led Fuller to recommend in favor of Simpson getting custody.

“No one told me anything but that Mr. Simpson was a good dad with a good relationship with his kids,” Fuller said. “Even Nicole told me that in her [diary] writings, in reports of her conversations with friends and relatives. She said she never had to worry if anything ever happened to her, because she knew that Mr. Simpson would take good care of the kids.”

Fuller also obtained opinions from two psychotherapists who she said reached the same conclusions: that the children loved their father, that they should be reunited with him, and that Simpson posed no danger.

The Browns have called Fuller biased and sought unsuccessfully during the trial to have her removed as the children’s attorney. And they asked for another pair of expert evaluators. But a court-appointed psychologist and psychiatrist each arrived at the same conclusions, Fuller said.

In the aftermath of the trial, the Browns’ attorney, Natasha Roit, accused Fuller of ignoring evidence of domestic violence in Simpson’s Brentwood home, a claim Fuller denied. And Roit complained that her own mental health expert was denied access to Simpson’s children.

“Marjorie Fuller had a lack of independence in this case,” Roit said. “We felt all along that there were two attorneys for Mr. Simpson and none for the children.”

In child custody cases, the opinions of attorneys appointed to represent children typically are given considerable weight by judges. The child’s attorney is usually seen as an impartial arbiter caught between two warring factions.

The ruling of Superior Court Judge Nancy Wieben Stock, who handled the Simpson case, reflected those opinions as well as the sanctity of parenthood under California law.

“The children share a relationship with their father that appears to be strong, positive and healthy, with powerful psychological bonding,” Wieben Stock wrote. “. . . Simpson’s history with the children does not yield a picture of a man who has in the past, or is likely in the future, to lose control of himself in such a manner as to emotionally or physically harm his two young children.”

The judge did not have to find that Simpson was a better parent than the Browns, only that Justin and Sydney were not likely to suffer in his care.

Courts typically terminate parental rights only in extreme cases and usually only after a protracted hearing.

In a definitive 1976 California appellate ruling, a San Diego man’s conviction for murdering his wife did not provide grounds for stripping him of custody of his four children.

The San Diego County Department of Public Welfare had sought to take the children away from their father--known only as Sergio M.--after he pleaded guilty to stabbing his wife 22 times. The couple had been estranged and the wife moved in with another man who reportedly was abusing the children--shooting them with a BB gun and hanging them by their toes.

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But the trial court determined that the murder was not the product of a violent character, but rathera crime of passion. The father had not neglected his children, the court found, even though he had deprived them of their mother.

Last year, a Florida appellate court agreed that a father should get custody of his 12-year-old daughter, even though he had spent eight years in prison for murdering his first wife, shooting her 12 times. In that case, the court was less concerned with John Ward’s murder conviction 22 years earlier than with the fact that his second wife was a lesbian. Ward had divorced the second wife and had initially allowed her to raise their daughter.

The judge said the daughter should have a chance to live in a “non-lesbian world.” While the quality of John Ward’s care of the girl has been hotly contested, the case became moot recently when the second wife, Mary Ward, died.

Some parents with a criminal past do appear to get on with their lives as solid mothers and fathers.

Last year, a Los Angeles Superior Court commissioner provoked controversy among county child welfare officials when he returned a 1 1/2-year-old girl to her father, who had been freed from prison just three months earlier.

The man had served 6 1/2 years for rape and then returned to prison for another year on a parole violation for hitting a woman. The county Department of Children and Family Services balked at returning the child, who had been living with an aunt, to the father. The girl’s court-appointed lawyer also had reservations.

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But Commissioner Robert Leventer ruled that the father should not be branded forever by his criminal past. “I believe you are providing a great home and are the best chance in this life; the best thing that came around for [the girl],” Leventer said.

One person familiar with the case said last week that the 51-year-old father is a hard-working, church-going family man. “He seems like a very involved parent,” said the source, who asked to remain anonymous. “He teaches her things, he takes her on outings, he has a computer she is learning with. He brings pictures of her and she is well-dressed and healthy and playful.”

Often underlying the legal system’s predilection with keeping biological parents in children’s lives is the fact that, unlike in the Simpson case, substitute homes are hard to come by.

“There would be some more sympathy of taking them away if there was a home for these kids, but there often is not,” said Susan K. Weiss, a Santa Monica lawyer who specializes in custody cases. “People are not rushing to adopt these kids. So they sit in foster care and that is no good.”

In a series of decisions beginning in the 1920s, the U.S. Supreme Court recognized that parents, because of their natural bonds of affection with their offspring, are better caretakers than the state, explained Berkeley professor Hollinger.

But beginning in the last century, American courts also rejected the notion of children as personal property. In the San Diego murder case, the court was careful to say that Sergio M. was not getting his children back because of constitutional property rights.

Still, the strength of parents’ rights in the law have in recent years shocked and disturbed the public in a series of high-profile cases:

* In 1994, the Illinois Supreme Court upheld the removal of “Baby Richard,” 4, from the only parents he had ever known and placed him with his biological parents. Just last month, the couple separated and the father, who had fought so hard for his son, left the home in what some saw as proof that the high court had erred.

* In 1995, Elisa Izquierdo was murdered by her mother in New York, despite repeated warnings that the girl could be in danger. That same year, 2 1/2-year-old Lance Helms of North Hollywood was beaten to death by his father’s girlfriend--again, despite strong signals that the child would be unsafe in the home.

As a result, Illinois got “Baby Richard’s Law,” a statute that forces unwed fathers to stake their claim to a child within 30 days of birth or forever lose their parental rights; New York loosened the reigns on secrecy laws in child abuse cases to make it easier to take children from offending parents.

The California Legislature considered myriad changes after Lance Helms’ death, but tabled the most dramatic. One law that did pass gives judges more latitude to terminate parental rights in specific cases, such as when the parent has caused the death of a sibling through abuse or neglect; when the parent has committed severe sexual or physical abuse on a child or when the parent is a chronic alcohol or drug abuser.

Other recent California proposals attempt to shift the burden to parents to prove their fitness.

Assemblywoman Sheila Kuehl (D-Santa Monica) is sponsoring a bill that would take children away from parents if a court found they had committed an act of domestic violence. It would be up to the parents to prove that they deserved their child back.

More recently, Brown family attorney Gloria Allred and Assemblywoman Barbara Alby (R-Fair Oaks) proposed a Simpson-related measure that would ban parents convicted of killing their spouses from regaining their children. It also would make custody more difficult to obtain for anyone found civilly liable of killing a spouse. Simpson, although he was found liable for killing his ex-wife and her friend, Ronald Goldman, was acquitted of their murders in his criminal trial.

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Such attempts to hold parents more accountable are a reflection of the public’s increasing impatience with malefactors--as demonstrated nationwide by the passage of determinant sentencing and three strikes laws, legal experts said.

Hollinger and other experts said they are leery of trying to legislate a formula for the vast array of variables that confront judges in divorce cases and in the dependency courts, where children are taken away from parents.

“I don’t think it’s a good idea to write statutes in response to individual cases,” Hollinger said.

On all sides of the debate, experts agree that children have already lost as soon as a custody battle begins. For Sydney and Justin Simpson, that pain can only be magnified by their father’s celebrity and the horrific findings against him.

“No matter where they go, the children are going to be burdened by the fact that their father has . . . been an assaultive, aggressive person who has been found liable of murdering their mother,” said Justin D. Call, professor emeritus of psychiatry at UC Irvine. “That fact will never be erased. It will live in the minds of these children forever.”