For those who haven't followed the tragic tale of Evan Scott in the news lately, he's a 3 1/2-year-old boy who was recently sent to live with his biological mother in Illinois after living his entire short life with an Atlantic Beach couple who at one time had hoped to adopt him.

Some have decried the removal of a child from his "psychological parents" while others have criticized the supposed efforts of Dawn and Gene Scott, the Florida couple, to prevent Evan's biological parents from gaining custody after the adoption fell through

Over the course of more than three years, this case evolved from a properly child-centered process into a contest between grown-ups -- one in which the Scotts were forced to defend before one judge the situation that a series of prior judges had created and perpetuated. And this has been a case in which biological status trumps all, even the best interests of an innocent child. However one views the controversy, there seems little doubt that the system has failed Evan Scott.

We simply should not have, and must not tolerate, a system that allows a child approaching 4 years old to be removed from the home of the only parents he has ever really known unless that child's health or safety is at risk.

After allowing the birth father to cure his non-compliance with the law, the adoption court found that he could properly object to the adoption and dismissed the Scotts' petition to adopt. In a prophetic twist, however, the court found that it was in Evan's best interests to remain with the Scotts because of his bond with them, his stable home and because of the birth father's history of domestic violence and substance abuse.

Custody by the birth mother, who selected the Scotts to adopt Evan, was not an issue. Despite some press reports, there was no "arrangement" for Evan to be returned to his birth mother if the adoption fell through. At the time the Scott's adoption petition was dismissed, the birth mother was not equipped to parent Evan.

After the adoption failed, the birth father filed paternity proceedings and sought visitation with Evan. The paternity court stringently limited the birth father's access to Evan, only allowing visits in Florida, supervised by the birth father's own mother and father. By court order, Evan remained in the Scott's home and came to know them as "mommy and daddy," all with the full support of the birth mother.

Over the past year, three different judges have considered the birth father's requests to modify visitation and transfer custody. Not one found it appropriate even to grant him unsupervised visitation. Yet, despite this reluctance to put Evan at risk, the judges turned the emphasis of the case from the child's best interests to the claimed "rights" of the birth father.

In one recent order, the court acknowledged expert testimony indicating that children taken from their primary attachment figures were four to five times more likely than others to suffer mental illness or commit serious crimes and that up to 50 percent of such kids will suffer permanent psychological damage. Apparently, the court found these risks acceptable since it then changed temporary custody from the Scotts to the birth mother (who only sought custody this past fall when it looked as though the court might grant custody to the birth father).

Most recently, the court's order denying the Scotts' motion to stop Evan's transfer from them was based on findings peppered with inaccuracies. The court's revisionist history included laying blame on the Scotts for stalling Evan's transfer to the birth father; the mischaracterization of the birth father's assault on the birth mother as nothing more than an "inappropriate shoving;" the mistaken contention that the birth mother wanted custody of Evan if the adoption failed and that the Scotts would not turn him over to her; and the insistence, inconsistent with the court's own records, that the birth father fought for Evan from the time he learned the birth mother was pregnant.

Who is at fault in Evan Scott's case? The very system that was supposed to protect him from harm. With the passage of more than three years, should the desire of Evan's birth parents to claim him for themselves require him to lose the only parents he's every really known? We believe the answer, for Evan's sake, is no.

The courts created this situation; there's still time for an appeals court to fix it.

Kent Markus is the director of the National Center for Adoption Law and Policy at Capital University Law School in Columbus, Ohio, where he teaches adoption law and directs the school's Children and Family Law Concentration.

This column appeared in the Florida Times-Union on Saturday, January 29, 2005