(Reprinted from Telicom, X, 18: 36, Feb, 1992.)
In the original case, two women had approached King Solomon, who was sitting as judge, and asked him to settle a custody dispute. At issue was a single living child. Each woman claimed that the other woman's baby had died, and that the surviving child was her own.
Solomon considered the meager evidence. There were only two witnesses, and except for agreeing that they were both biological mothers of some child, each had testified to contradicting facts regarding her relationship with the surviving child. Because each had a vital interest in the outcome of the case, the king had no reason to believe either of them.
An ordinary judge would have been stymied by this credibility problem, but Solomon wasn't. Since he was king, he was the law. He invented a maternity test, and called it the equitable parenting plan: He ordered the bailiff to bring a sword, to cut the surviving child in half, and to give each woman an equal share.
One of the women shrugged and quickly agreed to the plan. "Seems fair to me."
But the other woman wasn't pacified. She cried out, "This isn't right! Please! Give her the child! Anything, but don't kill the baby!"
Solomon allowed the child to live. Pointing to the woman who complained about his equitable parenting plan, he said, "This one is the mother," and awarded custody to her.
Solomon's test was the first psychological test in recorded history. But of course, the king didn't call it a test, because doing so would have defeated its purpose.
Solomon was apparently pleased by the outcome of the case. He told reporters later that he hadn't relished the idea of cutting the baby in half. He explained that, if both women had agreed to the equitable parenting plan, he would have given the child to the social services department to rear.
At the time, the woman who lost the case could not appeal Solomon's decision because her case had already been heard in the highest court in the land.
But this is a different land and this is a different time. That's why the Court of Appeal found four grounds to reverse Solomon's decision.
First, in inventing and applying his test, Solomon erred by using wisdom, not precedent as prescribed by law. Today, judicial wisdom is subordinate to precedent--presumably the wisdom of other judges.
Second, the Court, disregarding the account of the Biblical reporter as hearsay, found that Solomon didn't actually prove which mother was the biological mother. He merely appointed the selfless woman to be the mother. The Court pointed out that mothering competence, which entails selflessness and nurturing, isn't relevant in today's courts. Only biological links are relevant.
Third, Solomon erred by placing real value on "the best interest of the child." Today, as the Court of Appeal emphasized, it is imperative to serve this objective in words, but these words are never to be given substance. Parents have rights. Children don't.
Fourth, Solomon erred in placing weight on parental responsibility. Today's judicial doctrines disregard parental responsibility as a factor in determining custody. The Court of Appeal relied on an implicit, rarely stated legal principle: "If a woman is responsible enough to get pregnant, she is responsible enough to rear a child."
The Court of Appeal remanded the case to a lower court with the directive that the child be chopped in half psychologically with the modern sword of joint custody. By this enlightened equitable parenting plan, the child could benefit from having two mothers: one who would sacrifice her own wishes for the child, and the other who would sacrifice the child for her own wishes.
This reporter asked a prominent psychiatrist, "In your opinion, which mother would have the greater influence on the child's growth and development? The selfless one or the selfish one?"
"Obviously, the selfish mother would have influenced the child more.
"A child is controlled by the lowest common denominator in its life. There is no denominator lower than a selfish mother who would cannibalize a child--whether or not she gave birth to it."
Asked if psychiatry is infallible in determining whether parents are responsible and competent, the psychiatrist replied, "Not at all infallible. But it's far less fallible than the law."
Exploring the issues further, this reporter asked the presiding judge of the family court, "What qualifies courts to assess parental competence?"
The judge responded, "Most judges are parents. We know about rearing children.
"We know, for instance, that consistency is important. That's why we consistently give children to their biological mothers. Nothing wishy-washy there."
Asked about the wisdom of giving custody of children to mothers whose selfishness renders them unfit, the judge responded,
"Unfit mother? Nonsense! All biological mothers are fit, period. You should have known my mother. She was a saint.
"Maternal instinct makes mothers fit. That's basic biology."
"Couldn't a different biological urge compel a woman to get pregnant?"
"Not in this state. Read the law. Forget that psycho-babble."
This reporter believes that Solomon would have welcomed today's reversal. In discussing the case with his biographer, Solomon had said, "That was a tough case. It wasn't wisdom, you know. It was necessity. I was forced to think creatively and realistically. Some day, I hope, judges won't have to think so much. Some day, I hope, they'll be able to dispense with these cases without worrying over facts about reality."
Finally, after three thousand years, Solomon's hopes have been realized. Surely, he would be pleased.