Question of Custody

The U.S. Supreme Court was asked to play Solomon last week in the case of two children instead of one. The question was legally knotty: To what extent should the courts let an infant's baptism affect its future?

The story the court will have to consider, if it agrees to hear the case, begins in 1947, when Brazilian-born Jandyra Southern, a Roman Catholic, and her husband, Thomas Southern of Kansas City, a Protestant, were divorced. Jandyra Southern moved to New York, and boarded her two children, Diane and Linda, in a Jewish foster home. Later they were put in the care of the Free Synagogue Child Adoption Committee in Manhattan. For reasons Mrs. Southern has never explained, she declared that she and her children were Jews.

Last year, Jandyra Southern asked for her children. She had lied in calling Diane and Linda Jewish, she said; they had both been baptized in the Roman Catholic Church. The New York children's court turned her down, ruling that the two children should remain in their foster home because there they had found "happiness, love and security" for the first time in their lives, and because they did not remember ever being anything but Jewish. The court also found Jandyra Southern "unfit to have their custody or control."

Jandyra Southern appealed. The appellate division of the New York supreme court reversed the children's court and ordered Diane, 8, and Linda, 7, moved to the Catholic Home Bureau for Dependent Children. Jandyra, who had hoped for custody of the children herself, began to suffer from another acute case of indecision. She told the Jewish agency that she was content to let the children stay in their Jewish foster home, then reversed herself and authorized Lawyer George A. Timone, prominent in New York Catholic charities, to act as her attorney and see that the children were transferred to the Catholic Home Bureau.

Last week, in what may be a precedent-making case, the Jewish agency filed an appeal in the U.S. Supreme Court, and at the same time asked permission to test the appellate division's decision in the New York court of appeals. The agency's contention: the decision violates the principle of church-state separation by determining custody of a child "not with reference to its welfare but solely on the basis of the religion into which it was baptized," thereby "giving legal sanction to the baptism."

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