Holding Out vs. De Facto, I

In my last post, I introduced the presumption of parenthood a man may claim by virtue of holding out a child as his own.   The idea is that if a man takes a child into his home and presents the child to the world as his child, we can presume the child is indeed his child and that he is the father.    (This is from Section 204 of the 2002 version of the Uniform Parenting Act.)    If you look back to the last post, I contrasted that with the definition of a de facto parent.

To put it simply, it’s hard to meet the test for de facto parent.  It seems ever so much easier to acquire status as a presumed father via holding out.

Further, while most of family law has become gender neutral, this provision has not.   The beginning of Section 204 still reads “A man is presumed to be the father of a child….”    It could easily read “A person is presumed to be the parent of a child…..,” but it doesn’t.  

It is worth noting that this is the same provision of the UPA that establishes parentage by virtue of marriage.  In other words, the same provision (Section 204) states that a married man is presumed to be the father of a child born to his wife.   I’ve written about that before now and then.   And it’s worth reading Bill Singer’s comment on another post noting that this presumption operates in favor of a lesbian domestic partner/spouse where such relationships are recognized by the state.

I’m actually a bit unclear about the extent to which the UPA intends to restrict the holding out presumption to men/fathers only.   There is another provision, section 106, which provides that “provisions of [the act] relating to determination of paternity apply to determinations of maternity.”   The wording of that has always seemed rather curious to me, but it seems to suggest that Section 204 applies to maternity (and therefore women) as well as paternity.   But it generally isn’t read that way.

What seems more common is that states end up operating with two parallel rules:  Men are presumed to be fathers by virtue of holding out while women seeking recognition as mothers must meet the more exacting (and facially gender neutral) requirements of the de facto parent test.  (Do keep in mind that not all states have a doctrine of de facto parenthood and/or recognize holding out.   This does make it quite difficult to generalize.)

Now one way to sum all this up is that it is much easier for a man to be declared a father than it is for a woman to be declared a mother.    Or to put it differently, holding out is enough to make a man a father, but it isn’t enough to make a woman a mother.    A woman has to do more than simply hold a child out.

If this is the case, the next question has to be “why?”  I’m tempted to offer a briefly little guess here, though it’s not thought through.   This has to do with why the standards are different, rather than the gender point.   Men who hold out a child are likely to be seen as sources of financial support.   That being the case, we’re eager to find them and sign them up, as it were.  By contrast, de facto parents, while typically willing to pay support, are also seeking to claim substantial engagement of with the child.   That’s a more complicated proposition, and hence comes with a higher standard.

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