Court asks the big question: What is best for Justin?

It would have been best if the Kentucky Supreme Court had ended the custody battle over Justin Asente with a ruling that said what everyone with an ounce of sense knows: Justin is already with the only two adults who have consistently behaved as his parents, and it's with them he should stay.
Cheryl and Richard Asente of Girard are his mom and his dad in a million ways -- ways proved each of the nearly 2,000 nights they've put him to bed, the equal number of mornings they awakened him and the nearly 50,000 hours in between.
But in a world of legal hair-splitting, the court could not find a way of doing that. It found, instead, that Justin's birth parents, an unmarried Kentucky couple who have six children between them with various mates and have maintained custody of none of them, may not have understood that they were giving Justin up for adoption in February 1998, when he was 11 months old. One of those children is Justin's older brother, Jason, who was adopted by the Asentes a year earlier.
But the court did what should be the next best thing. In sending the case back to a lower court, it instructed the court to award custody "on the basis of Justin's best interest."
Not the first time
That's what a Kentucky appeals court said should be done a few years ago. It's what an Ohio common pleas court judge said during the brief time that the case was being argued in Ohio. It's what most people believe should be done whenever one of these heart-wrenching cases turns up in the news. It's what everyone but the Illinois Supreme Court knew should be done in 1995, when the nation watched in horror as 4-year-old "Baby Richard" was pulled screaming from his adoptive parents' arms and given to a birth father he hardly knew.
The case is being sent back to Judge Patricia Summe of Kenton County, who has been hostile to the Asentes in the past. It was she who ruled that the Asentes would have to show clearly and convincingly that the birth parents were unfit, a standard that the Supreme Court said was too restrictive. It was she who criticized the Asentes several years ago for going public with their case -- as if parents who invested their love in a child and saw that love returned should stand by silently while the boy is torn from their arms and from the arms of his older brother.
Judge Summe has the opportunity -- the privilege, even -- to put a proper end to this case by awarding unconditional custody to the Asentes.