Family Breaks Up In `Baby Richard' Case

CHICAGO - "Baby Richard" went home with an adoptive family when he was 4 days old, only to be returned sobbing four years later to his biological parents.

Now, the father who fought so fiercely to get his son back has left his wife and the 5-year-old boy, the latest twist in a case that broke hearts and captured headlines.

Otakar Kirchner moved out several months ago, and the boy, now known as Danny Kirchner, is staying with his mother, Daniela, said Kirchner's former lawyer, Loren Heinemann.

"I visit the family frequently and for extended periods of time," Kirchner said in a statement yesterday. "I love my children very much. Although it is painful for me not to be with them at all times, I believe that this arrangement is the best we can do for them at this time."

Mrs. Kirchner told the Chicago Sun-Times she asked Kirchner to move out.

The Kirchners, who were married after he began the court fight to obtain custody of his son, subsequently had a daughter, now 11 months old.

Reached yesterday at the Chicago-area hotel where he has been living, Kirchner said that he visits Danny every second day and talks to him on the phone daily.

"I see my child probably more than any other parent," he said.

Referring to the recent loss of his job, Kirchner said: "My money is limited. I provide our children as much financial support as I can. I am actively seeking another job and expect to be employed again soon."

Kimberly and Jay Warburton haven't seen the boy since he was taken from them in April 1995.

"It's a very sad day for the justice system to see how we have failed this child," said Richard Lifshitz, who represented the Warburtons.

But, he said, Kirchner's absence probably would not be grounds to re-open the custody case.

Daniela Kirchner gave the boy up for adoption days after his birth, believing that Kirchner had abandoned her. She initially told Kirchner the boy had died.

Two months after the child's birth, on learning the truth, Otakar Kirchner began fighting for custody.

Following a fierce court battle, the Illinois Supreme Court ruled that Kirchner's parental rights had been denied and invalidated the adoption.

The boy, who was named in court records as "Baby Richard" to keep his anonymity, was taken sobbing from the Warburtons in April 1995. The Warburtons had no comment yesterday.

Heinemann said the situation is no different from that of thousands of struggling families.

"Danny's being cared for by his mother. What's wrong with that?" he asked. "It's not some sort of Dickensian scene."

By moving out of the house, at least one legal expert said, Otakar Kirchner could be giving the Warburtons an opening to make a bid to regain custody of the boy.

Although that likelihood was considered a long shot, the fact remains his mother surrendered her custodial rights by putting her son up for adoption.

Under Illinois law, a third party can make a claim for custody if the child is not living with a legal guardian or parent.

"The law does not recognize her (Daniela) as a parent," said Emily Buss, an assistant professor of law at the University of Chicago Law School. That could give the Warburtons standing to file an action, she said, but to prevail they would have to show that the boy's transfer back to them would be in his best interest.