Judge grants temporary custody to Missouri man who says weight lost him adoption

Wednesday, December 19, 2007

KANSAS CITY, Mo. -- A man who underwent gastric bypass surgery after saying he was not allowed to adopt a child because of his weight has been awarded temporary custody of the baby boy.

But before he issued the order granting temporary adoptive custody, Jackson County Circuit Judge John R. O'Malley also sharply criticized Gary Stocklaufer for his handling of the matter and denied Stocklaufer's claim that the court would not allow him to adopt the baby because he is obese.

In an unusual departure from adoption proceedings, which are not public in Missouri, the judge released his order to the media Tuesday "because of the enormous publicity" about the case, likening it to a "parade that would embarrass P.T. Barnum."

Stocklaufer, 35, weighed 550 pounds in July when his petition to adopt Max, an infant he and his wife, Cindy, had taken in, was denied. Missouri officials had not confirmed the reason Max was removed from the Stocklaufers' home, citing the confidentiality of court proceedings in adoption cases.

The Stocklaufers were featured in national media after the original hearing. They claimed they were denied custody of the baby because of Gary Stocklaufer's weight. Stocklaufer underwent gastric bypass surgery free from a Dallas clinic in August after the publicity and has lost about 200 pounds.

In his order, O'Malley said Stocklaufer's weight was not the issue. He said a major problem in their initial petition to adopt was that they did not follow adoption law procedure and obtain some required paperwork when the baby was moved into Missouri from another state. That failure actually resulted in the Stocklaufers committing a felony, O'Malley said.

"Knowing the other parties could not respond, Mr. Stocklaufer made his physical condition an ersatz issue. A description of the health of adoptive parents is contained in every study prepared for the court in these cases."

The judge said the "true issues have been eclipsed by the rhetoric about his girth."

"He seeks to extort a favorable result by his accusations. Fortunately, Missouri courts base decisions on the weight of the evidence, not the weight of the litigants."

O'Malley said if he had been presented with the case in the same manner as the original commissioner, he would have "reached a similar decision."

"This is not the fault of the legal system; it is the Stocklaufers who have been careful to hide certain aspects of their involvement with this infant. ... What is remarkable is not the size of Mr. Stocklaufer's waist, but the dimensions of his misunderstanding."

He said the Stocklaufers violated Missouri's adoption laws "by bringing the newborn baby into Missouri as they did."

Missouri law requires anyone bringing a child into the state for adoption to obtain a court order first and requires that an investigation be completed by court order.

"The Stocklaufers failed to follow these legal requirements," which O'Malley said is a Class D felony.

But he said the Stocklaufers should be awarded temporary adoptive custody of the child, who has been cared for by a family in Missouri, and that the transfer should take place no later than noon Dec. 31. The family caring for the baby now, however, has the option of appealing the ruling. That family has not been identified.

"In spite of their unlawful actions at the start of this process, they did care enough to step forward and are responsible for bringing (the baby) into the state and their home," O'Malley said of the Stocklaufers.

The order is for statutory adoptive custody with a new hearing in six months to finalize the adoption, said Gerald McGonagle, the Stocklaufers' lawyer.

McGonagle also said he didn't think the previous ruling denying custody was based soley on Stocklaufer's weight.

"I certainly don't think the previous court relied totally on the weight issue," he said. "Not totally, no."

Cindy Stocklaufer, 34, would not comment on the judge's remarks in the order.

"I'm very excited," Stocklaufer said by phone from her home in Independence. "We're very excited. We're just waiting for him to come home. That's all that matters."

She referred all other questions about the case to McGonagle.

McGonagle said he was not surprised by the judge's decision to release the order to the media.

"Because of the attention to the case, it's pretty astute of the court," McGonagle said. "There has been an enormous amount of publicity, and I think the order answers questions for people that were probably following this.

"What I'm concerned about is that the court made what I think is the appropriate decision in the case."

He said Gary Stocklaufer went to the media because he thought that was what he needed "to do to bring attention to what he thought was an injustice."

McGonagle, who was not the Stocklaufers' attorney during the first hearing, said the couple did not intend to break the law. The Stocklaufers have been married 15 years and have an 8-year-old son they also adopted.

The baby, who was 4 months old when he was removed from the Stocklaufers' home, is related to the couple and had lived with them since April, when he was a week old.

"My clients, they're not attorneys," McGonagle said. "They hired an attorney to help them through the process. I think the court was cognizant of that. There certainly was no intent of my clients to violate the law."

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