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The Alabama Supreme Court gave the sides until Jan. 10 to work with a mediator to resolve the Baby Sam custody issue.
By COLLINS CONNER
© St. Petersburg Times, published December 23, 2000
Each of the two families seeking custody of 4-year-old Sam Johnson believes the Alabama Supreme Court gave them a Christmas gift.
On Thursday, the court neither reversed nor affirmed its November decision awarding custody of Sam to his biological father.
Rather, the court issued an unusual directive: By Jan. 10, Sam's adoptive parents, Mark and Tracy Johnson of Tuscaloosa, Ala., and his biological father, Chris Vietri of New Port Richey, should find a "solution of this matter" with the help of a mediator.
What matter? Custody? How to ease Sam's move? Whether the non-custodial family can visit Sam?
The court didn't say.
It did name a mediator: retired Alabama Supreme Court Justice Mark Kennedy, the son-in-law of the late George Wallace, the state's former governor. Kennedy founded and heads the Corporate Foundation for Children, a charitable trust that helps finance abuse-prevention initiatives.
Kennedy has a difficult task, said Stephen Ware, a professor at Samford University's Cumberland School of Law in Birmingham.
Custody mediation typically occurs during a divorce, Ware said, when the issues are as simple as whether dad gets the kids all weekend.
"In this case, these disputing parties have already kind of fought to the end. I don't know how much flexibility there's going to be," Ware said.
Lawyers for both sides drew vastly different implications from Thursday's abrupt instruction.
"This ruling is a godsend," said Vietri's attorney, Lawrence Liebling of Clearwater. "Ever since the Supreme Court ruled (in Vietri's favor) one month ago . . . Chris has tried to talk (with the Johnsons) about how to do that in the best way for Sam. Every time, they have rebuffed Chris. Now the Johnsons must sit down with Chris to discuss the terms of the reunification."
That's not the way Scott Stapp, attorney for the Johnsons, sees the court order.
"We take this as a positive sign," Stapp said. "The (November) ruling was 5 to 4. The fifth judge with the majority was very close to going with us."
Thursday's directive indicates the justices want a different solution, Stapp said.
The Johnsons' Tampa attorney, Anthony B. Marchese, said the justices "could have said, "Our original order granting custody to Mr. Vietri stands; now you're ordered to mediate how to do that.' But they didn't."
Stapp said that at the mediation hearing in January, "everything is sort of open for discussion."
Asked if joint custody could be considered, Stapp said, "All of that is on the table."
Ware recently compared four years of court arbitration-law decisions to the justices' politics and campaign contributors.
There's no match here, he said.
"The way this 5-4 decision broke cuts across this line," he said. "You've got liberal Democrats and conservative Republicans on each side. The kind of predictable lines you find in other cases just didn't show up here."
Ware said he can't predict Kennedy's stance.
"It doesn't much matter what his own personal views are; he has no power to force any kind of result here," he said.
Rather, once the mediation is over, the court must decide if it will uphold its November decision for Vietri or rehear the case.
Ware suggested legal precedent could have an impact on the court's ultimate decision.
"In these child custody battles, the idea of possession being nine-tenths of law leads disputing parties to try to hold possession of the child," he said, "so later on they can say, "We have had this child four or five years.' Every child psychologist and every parent will say it's harmful to . . . take him from that home.
"But, if you're the court, you're seeing . . . all the future cases and thinking, "Do we want to set incentives that reward people who succeed in holding onto the child? Or do we want to say, "Don't mess with us that way. Do what the court orders early on.' "
Marchese, the Johnson's Tampa attorney, said the Johnsons have not tried to run the clock, but sought quick hearings.
Sam's birth mother told Vietri that Sam was stillborn, then placed the baby for adoption. Vietri determined Sam had not died and began his four-year battle for custody.
All the while, Sam has lived with his adoptive parents. He will be 5 in March.