Family law attorneys call it a first: a babysitter winning custody of a child. Now the mother's lawyer has won a rehearing -- just in time for the holidays.
In an emergency hearing in a Chicago courtroom on Nov. 24, the same judge who last month gave a babysitter custody of a two-year-old boy vacated the guardianship order at the request of the child's parents. The toddler will stay with the babysitter pending a Jan. 20 status hearing, although he will spend Thanksgiving and Christmas with his parents and grandmother, who will also get weekly visits.
"I've been practicing law for 30 years, and I've never seen anything like this," said Jeffrey Leving of the Law Offices of Jeffrey M. Leving in Chicago, who represents the mother.
Leving claimed the order granting the sitter guardianship "was based on lies." He alleges the babysitter misled the court about being the child's aunt, about not being able to locate the boy's mother and about the father's identity being unknown.
According to Leving, on Aug. 28, the babysitter filed a petition seeking guardianship after claiming the mother had disappeared; she published the petition in a local law bulletin. On Oct. 20, the judge granted her guardianship, and the sitter notified the mother about the order. The mother then hired a lawyer.
"I think the mother's a good mother, but even if the babysitter -- hypothetically -- could be a better mother, it' s not her child," Leving said.
But the babysitter is the boy's mom as far as the toddler is concerned, countered Rhonda Sallee of Chicago's Sallee & Associates, who represents the sitter.
According to Sallee, her client, Karen Smith, has been raising the boy since he was three days old, and the child has lived with Smith and her husband ever since. "He calls my client mom and her husband dad," Sallee said.
Sallee believes it's in the best interest of the child to stay with the Smiths. "It's inconceivable to rip a child from everything that he knows, or has known, for all his life, and drop him into an environment that he has no knowledge of," she said. "It would be a culture shock."
The case itself is shocking to family law attorneys. Lynne Gold-Bikin, the past chairwoman of the American Bar Association's Section of Family Law, called it "extraordinarily rare," noting that never in her 33 years of practicing law had she heard of a babysitter winning custody.
Paul Talbert of New York's Chemtob Moss Forman & Talbert was equally stunned, saying that neither he nor his colleagues at the firm had ever heard of a babysitter winning custody. For a judge to do that, he said, "You've gotta have some really messed-up parents, and ... no other family members to step in," said Talbert.