'Asked and Answered' Marian Faupel: 'Baby Jessica' case revisited

Editor's Note: ''Asked and Answered'' is a series of interviews between Legal News staff writer Jo Mathis and local legal professionals.

This week, Mathis talks with Marian Faupel.

By Jo Mathis

Legal News

Marian Faupel gained national fame back in the 90s when she represented the biological parents in the Baby Jessica custody case in Ann Arbor. She is a partner in the Ann Arbor firm of Faupel, Fraser, and Fessler, and has been teaching family law at Wayne State University Law School as an adjunct for the past several years.

Mathis: It's been about 20 years since you helped reunite Baby Jessica/Anna with her biological parents in Iowa. Since then, both couples involved in that case were divorced. Were you surprised? Any regrets about that case?

Faupel: I don't have any regrets at all. I'm not surprised the couples got a divorce because that kind of attention and pressure and expense would burden any marriage.

And that's one of the reasons the law does not normally permit third parties to petition for custody of children because they don't want parents to have to go through that sort of litigation.

Mathis: Do you feel the case was reported fairly in the press at the time?

Faupel: I do feel parts of the media made a tremendous effort to be fair at the time.

The local reporters who had access to the trial files and were able to speak with me did do a good job reporting what it was about legally.

Unfortunately the mainstream media across the country did not completely understand the issues. They never understood that it was not about adoption.

In Michigan, the DeBoers only sought custody since their Iowa petition for adoption had been dismissed two years earlier.

Unfortunately, all sorts of adoptive families were terrorized by the thought that two years after an adoption was finalized, the birth parents could just "change their minds." That never occurred in this case.

Mathis: Even though you won, you actually lost a lot of money taking on that case, didn't you?

Faupel: I not only lost a lot of money, but I had to borrow $50,000 that year to keep my firm afloat.

That's something I tell new lawyers about the case: When you are called on to represent people in cases like this with significant constitutional importance, you may be called on to do more than just show up in court.

Mathis: Had you known from the start how much it would cost you, would you have taken it on?

Faupel: I probably would have, but I am passionate about parental rights and constitutional issues. So I probably would have because when you take the oath as an attorney, you're probably not called on to borrow money, but you are called on to make decisions without regard to money. So it's a wiggly line.

Fortunately I have a thriving business and I was able to recover from that. But for about a year, the Baby Jessica case was the focus of my practice, and it wasn't a profitable focus.

It took me a long time to recover financially.

Mathis: What lasting effect-- if any--did the Baby Jessica case have on family law?

Faupel: It ultimately influenced decisions in other states.

At the same time there was a Baby Richard case going on in Chicago. There were adoption cases going on in Florida. It clearly became the landmark case, not only in Michigan, but across the country.

The Baby Jessica case is known as In re Clausen because Cara Schmidt's last name was "Clausen" when the baby was born, and that is how this case is cited now in the law.

The case is cited repeatedly by other courts in Michigan for the principle that natural, fit parents have superior rights to any third party and that third parties don't have standing.

It was a privilege to be involved in a case with that sort of importance.

I was not surprised by the outcome of that case because every time the U.S. Supreme Court has been asked to weigh in on parental rights, it's always decided in favor of natural, fit parents.

Mathis: What are the most common concerns of a client entering divorce proceedings?

Faupel: In today's world, it's the economics more than anything else, and that's changed a bit.

It used to be that children were the primary concern. A lot of times these cases involve mortgages that are underwater, unemployment, the inability to find new employment, issues about support, and just providing the necessities for the family.

It's a very challenging environment to practice family law in, and you see a lot of desperate people.

Mathis: How have same sex marriages affected your practice, if it all?

Faupel: They've affected it a lot.

I've been teaching family law at Wayne State's Law School for nine years now, and I'm using the fifth edition of a family law casebook.

The substantial revisions to this present case book are focused on reproductive technology and same sex relationships because there have been dramatic changes in both areas.

There are 16 ways now a couple can become parents, and adoption and giving birth naturally are only two of those ways.

Adam and Eve were just not that creative.

Same sex couples have many challenges. I've represented them in getting together and signing partnership agreements because the laws don't give them the benefit of marriage or divorce, which presents problems.

We've represented them in estate planning issues. We've represented them in breaking up because divorce is not available.

There's something like 1,300 different rights that are not available to same sex couples so they essentially have to enter into contracts to protect themselves in getting together, having a family life, or breaking up.

I have pretty strong feelings about this as a new frontier for civil rights in our country, and it's a subject of lots of animated discussion when I teach family law.

In my opinion, the right to enjoy life as a family and to have a family is the most important constitutional right that we have.

I often say that people would give up their right to vote before they would give up their right to parent a son or daughter or to marry someone they choose.

Practicing family law, while challenging, is a privilege in my opinion.

Published: Mon, Sep 19, 2011

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