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The new children of divorce

Published Oct. 12, 2005

Divorce used to be adult business, in the days before 12-year-old Gregory Kingsley was granted a "divorce" from his biological parents.

Since then, at least two other children have filed similar legal action to escape what they say are abusive and neglectful environments.

Still others, as well as attorneys for even more, have swamped Kingsley's lawyer with calls.

Kingsley's trial, which included testimony about the boy's protracted periods in foster care without hearing from his parents, apparently is a prototype for two children who filed paperwork last week seeking the severance of custodial ties.

According to news reports, a 12-year-old Mississippi boy and a 13-year-old Michigan girl say they have been abused and neglected by their biological parents. Each child asked to be adopted by an aunt and uncle. Both said they were inspired by the Kingsley case.

Their actions are no surprise to various court observers, although there is debate over the legal significance of the Kingsley case, which must survive an appeal before there is a shift in the way children can interact with the legal system.

Even if the case is upheld, there are differing views about what the case accomplished.

"The only thing about this case that was interesting is that Gregory had to go out and get his own lawyer to bring an action that served actually as the catalyst for HRS changing its mind (and recommending that the child be removed from his mother's custody)," said Martin Guggenheim, a professor of family law at New York University.

"What happened in this case and why it is not a very important case is that the judge ruled that Gregory's mother's parental rights may be terminated under Florida law. That was a position by the time the case reached trial, advocated by HRS (the Florida Department of Health and Rehabilitative Services)."

Guggenheim said the ultimate message sent by the judge in the case is that parents in trouble may avoid turning to the state for help for fear of losing their child.

He likened the case to a house fire in which a mother stands amid the flames holding her child as she looks out of a window at people holding a net.

"There's an implicit understanding that if she throws her child to safety, the child's savers will return the baby to her when she gets out herself. But if you change the rules so that parents can't be confident they'll get their kids back, they ain't going to turn to the system in the first place."

Another critic of the ruling is the non-profit national Family Research Council in Washington, D.C., whose spokeswoman says that children, more than parents, have been sent a dangerous signal.

"What we saw was the incredible failure of the foster care system to do its job. The solution is not to create a whole new legal precedent but to address the problems in the foster care system," said Kristi Stone, the council's press secretary.

"(The ruling) sends out the unfortunate message to children that "Your parents may not protect you, so don't worry, you've got this out.' To tell children there's a divorce option out there _ that does not lend itself to strong families."

Jack Levine, executive director of Florida Center for Children and Youth, applauds the decision.

"I think it's essential to say what this case is not. This case is not a divorce case. This case is not a situation of a child rejecting the spinach that his parents served and taking them to court. This is not frivolous. This is not about promoting disrespect of children for their parents. And the last thing this is not is a wide-open door for children to get their way from a judge where they haven't gotten their way from a parent.

"What this case is, is a cry of desperation from a child who has lived the majority of his life in a state of legal limbo. It is a desperate attempt to find some security and stability for a child who has known neither since his toddlerhood. And it is, in every sense of the word, a very strict case of law enforcement," Levine said.

However the case is resolved, he said, it will continue to spawn "healthy debate about the capability of a child to express himself or herself on his own behalf in front of the court."

Perhaps nobody can express that sentiment as strongly as Jerri Blair, the Tavares lawyer who represented Kingsley.

Blair said she required that the child make an appointment with her to determine whether she would take the case.

"My position has been that I wouldn't take the case unless I was convinced the child knew what he was doing and that it was in his best interest," she said.

After meeting with Gregory, she had no doubt that "There was only one thing that was right for this child and it was for this child to be adopted by (the Russ) family."

The lawsuit's outcome, she said, "gives hope that there is a way to help children who are caught up in the foster care system."

"And I think the message that's real strong and clear is that there needs to be some change in the foster care system so children are given access to the courts to make sure they aren't kept there.

"The judge stated that he had ordered the state to terminate the child-parent relationship in June of 1991, and they didn't do it, and this child was forced to take action because the state failed to protect him. That's serious," she said.

"There's a lot of issues involved here; it's not something that's very simple. In (the Kingsley) case, probably as in many others, everyone's at fault and no one's at fault. It would be tough for me to be any more specific than that," said Lynda Russell, public information director for HRS.

Russell says although the system tries to "ease this problem" of foster care, "there is no cure. We will never totally solve it. Unfortunately, there will always be children in the foster care system."

As the debate burns on, Gregory, whose name now is Shawn Russ, is busy doing his homework and getting on with his young life, says Blair, his attorney.

"He's doing great," she said. "He's real happy."