So let's try it with these ideas often floated when a family adopts a child who was kidnapped, some of which you'll find in the comments to my post about the Guatemalan case:
". . . the only parents she's ever known. . . ."Consider this: In a fit of temporary insanity, a woman kidnaps her cousin's newborn daughter and then sets fire to the nursery. When the fire is finally extinguished, investigators conclude it was an accidental fire and that the newborn's body had been completely incinerated in the fire. The cousin moves away, and passes off the baby as her own. Her husband has been deployed in the military for the past six months, so he has no idea the child is not his and his wife's.
" . . . kidnappers can't be rewarded. . . ."
". . . but the APs didn't do anything wrong. . . ."
". . . best interest of the child. . . ."
The mother never believes her daughter died in the fire. Seven years later, when visiting her distant cousin for the first time in seven years, she comes to believe that her cousin's child is actually her child. DNA testing proves her right.
The cousin has been an exemplary mother and the child has thrived in her care. The child loves whom she has believed for seven years to be her mother and father. The prosecution, believing the cousin was insane at the time of the crime, and no longer insane, chooses not to prosecute, so she will not go to jail.
So, should the child be returned to her biological mother who is a stranger to her? Should she remain with the only parents she has ever known? Shouldn't her biological mother want her to remain with the cousin since she will be traumatized by losing the only family she has ever known?
If the insanity defense doesn't persuade you that the cousin isn't blameworthy, what about the cousin's husband, the child's "only father she's ever known?" He had no idea "his" child was not his child. He has decided to divorce his wife so he can raise his daughter alone, without the influence of a kidnapper in their lives. Should the child remain with him? He did nothing wrong, after all. . . . And does wrong-doing by the parents matter, if the test is best interest of the child?
This hypo is, of course, based on a real situation, modified somewhat for my nefarious purposes!
So how do you solve this conundrum? If you were the judge, who would you say gets custody of this child? What if it was the real situation (kidnapping, fire, no temporary insanity, kidnapper likely to be jailed, nothing about an ignorant husband), without my modifications? Do my modifications make a difference? Does this change your initial impressions (if any!) in the Guatemalan case? Are you thinking now you'd love to go to law school? Or are you now happy that you never even considered it?!