- The Washington Times - Monday, August 7, 2000

ROANOKE A man seeking custody of his unborn child because he believes the mother is unfit cannot pursue the case until the child is born, a judge ruled Friday.

Alphonso Brooks had filed a petition in Roanoke Circuit Court to gain custody of an 8-month-old fetus upon its birth. Mr. Brooks argued that he didn't want his child growing up in former girlfriend Chevette Hunter's inner-city home because of the "social environment … lifestyle and her economic circumstances."

Judge Robert P. Doherty ruled that the question of custody does not exist until the child is born and dismissed the case. "This whole petition is premature," he said.

Miss Hunter broke down in tears as the judge issued his decision. She declined to comment.

"I'm happy, she's happy, everybody is happy," Angela Bennett, a friend of Miss Hunter, said outside the courtroom.

An upset Mr. Brooks said he would not let the decision discourage him from seeking custody. "I'm not giving up," he said. "I'm going to continue trying because I believe it's right."

Leaning on the 1973 Supreme Court decision in Roe vs. Wade, Mr. Brooks' attorney, Sam Garrison, argued that if the child is capable of life outside the womb now, then the father should not have to wait until after its birth to seek custody.

Roe vs. Wade legalized abortion, but said that state protection of a third-trimester fetus is warranted because the fetus is viable outside the womb.

"We are talking about a human life that is in this courtroom today, presumed viable and deserving of this court's protection," Mr. Garrison told the judge.

Mr. Brooks, 38, contends that Miss Hunter is unable to keep a steady job and has been evicted from several apartments for failure to pay rent. He said he would be a better parent because he has held the same custodial job for the past 17 years. He said he moved into a larger home and is making arrangements with his employer to take time off to care for the child.

Miss Hunter, 24, the mother of two children not fathered by Mr. Brooks, said she has no intention of surrendering her newborn to a man who showed no interest in being a father when she became pregnant.

Miss Hunter admitted having some tough financial times working two jobs, but said she has reunited with her husband and is in a good position to care for a third child.

Miss Hunter's attorney, Henry Woodward, said Mr. Brooks' petition accusing Miss Hunter of "unlawful restraint" of an unborn child made no legal sense.

"There is no law that can separate a child from its mother at this time," Mr. Woodward said. "It is physiologically and biologically impossible to separate the child from its mother at this time, and the court has no authority to do that."

Judge Doherty said he based his ruling on the current needs of the unborn child.

"Right now, it is absolutely in the best interest of the child to be with his mother, inside the womb where it can get proper nourishment," he said.

Mr. Garrison said he had hoped the court would appoint a guardian for the child and have social workers conduct a study of Miss Hunter's home environment before the baby was born.

"We were trying to get the judge to look down the road, to set the machinery in motion today so there could be an expedited research of the factual circumstances," he said. "We weren't asking him to induce labor right there in the courtroom."

Mr. Garrison said Mr. Brooks had not decided what to do next, but he said the logical step would be to file a custody petition when the baby is born.

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