Just the Facts

Two exchanges on earlier posts lead me to write here about facts and how they fit with law.   You can read the exchanges here and here–note that they are in the comments after the main posts.   I fear I’m about to lapse into my law professor mode, but I want to lay some groundwork.

Legal cases are about both facts and law.   For example, when a client consults a lawyer, the client arrives with a story.   (I don’t mean to suggest that what the client says is fictional.  Just that it is told as a story.)   The story is composed of discrete little facts–I said this, she did that–and so on.   The lawyer compares the facts to existing (or perhaps not-yet-existing-but-within-the-realm-of-imaginable) law.   So the lawyer might conclude “If I can prove that client did this and she said that, then the law is such that client can get what he/she wants.”

In court, the lawyer works to prove a set of facts and to establish particular rules of law.   The opposing party’s lawyer surely won’t agree to both or there would be no lawsuit.  Sometimes both facts and law disputed but not always.   Both sides might agree on the facts but disagree on the legal meaning of the facts. (So everyone might agree that one party was handing out leaflets at a particular spot (facts), but they might disagree about whether that conduct was allowed (law)).  Or both sides might agree on the law but disagree on the facts.  (An example of that–in a traffic accident, both sides would agree that running a red light is illegal (law), but they might disagree about what color the light was(fact).)  Putting aside complications of judge and jury and appeals, suffice it to say that eventually we might get an opinion written by a judge which recites facts and announces law.  That’s an end product of this process.   The law announced by an appellate court is applicable to  other cases.   Generally, the facts are the basis on which the rule rests, but are unique to the case in question. 

Back in Gear

I’m back from a summer of travels.  I will probably be starting slowly here, but I’ll be getting back to more regular posting within the week.  Thanks for your patience.

And just because I am back doesn’t mean any one else’s summer needs to come to an end.  So enjoy.

Points of Comparison

In my last post I tried to set out the main strength of the de facto/functional approach to determining parenthood.   I do realize that the approach also has weaknesses–indeed, it is this awareness of weakness that started this particular thread. But I think it is also useful to compare the de facto/functional approach to other possible approaches and to look at the strengths of each.

In doing this kind of comparison i think it is essential to be as explicit about all assumptions/arguments as possible.   So, in the last post, I tried to really pull one argument in support of a de facto/functional approach apart so you could see the pieces.   It’s not so much that I expect this to persuade everyone, as that I figure we can at least know exactly where we disagree.

Here I want to try the same thing–pulling apart arguments–with one of the other possible approaches to parentage.   (As an aside, it seems hard to do this compare/contrast stuff well in a blog where I try to keep individual posts fairly short.  So perhaps I’ll have to take some other tack shortly.   But it’s worth a try.)

Because it is a simple idea, I’ll take up the genetic link approach first.   What I mean by this is that the people whose genetic materials create a child should be recognized as the parents of a child.  

Relative Strengths

As I said in my last entry, I prefer the de facto/functional parent approach to the determination of parentage over the other possible approaches I’ve discussed in this blog.  (You can go back to find the other approaches I’ve discussed–there’s the DNA/genetic relationship approach, which I’ve talked about a some length in the context of the one-night-stand guy, and there’s the marriage-to-a-parent approach, which has come up repeatedly, but perhaps hasn’t been such a clear focus for analysis yet, and there’s the intention approach, which I’ve mostly discussed in the context of surrogacy.)

My preference for the functional/de facto approach isn’t new.   It long predates this blog.  (You can see this from some of my academic publications, should you care to look.)   Given this long-standing, pre-existing preference its might seem striking that it is only now, over six months into this blog, that I’m actually getting around to systematically explaining the basis for my preference.  I suppose it is always easier to criticize rather than advocate–to display the weakness of other approaches rather than the strength of the one I actually prefer.

Be that as it may, I have finally worked my way round to the strengths of the de facto/functional test, which I briefly set out in the last post.   Having done so, I now see the need to do a more general comparison of the relative strengths of the various possible approaches.   While I think that I’ve touched on a lot of this in earlier entries, it will be clearer and easier of they are laid out side by side.  

The Sticking Point

When I started this latest thread, I had hopes that with a little momentum I would be able to work through this one place that I always seem to get stuck in my arguments.   Alas, no such luck.  I have come to the place where I always stick and, once again, I am stuck.  

Here’s the problem:   

I am, as you will know if you’ve been reading this blog with any frequency, a proponent of a functional parent/de facto parent sort of test.   (I suggest you read back in this blog to really get the meaning of this, but the idea is that law follows and recognizes the realities of life–if a person acts like a parent of a child for a sufficiently long time, the law should affirm the relationship.)     

To really get to the problem I need to lay out the argument in support of a de facto test, which I’ve sort of done here and there, but perhaps not clearly and cleanly enough.   At least two separate and significant arguments support a de facto or functional approach and it’s important to spell them out separately.  

First, it is best for the children involved if the law supports rather than disrupts the networks of human care that surround them.   If a child has a child/parent relationship with an adult, then the law ought to recognize and protect that relationship in order to protect the child’s well-being.  The underlying assumption here–one which can be supported with lots of good social science stuff–is that stability and security in these core human relationships is a basic human need.   While there may be instances where the disruption of these critical relationships is necessary, it should hardly be the rule.  Thus, the argument would go, the law should generally recognize these as parent/child relationships and then employ the ordinary existing law to investigate whether disruption is warranted.  

Parentage–Patriotic and Political

I realize I’m not even managing to keep up with my quite leisurely summer schedule.  I can only hope that those of you who read this are also enjoying a leisurely time.   And I can invoke a minor back injury that has kept me from being quite so on top of it.   In any event, the schedule has slipped. 

I’ve not really been doing current events, because I cannot really get to a computer on line with any frequency, so there’s basically no chance my events would actually be current.   But this one is a bit hard to resist. 

From today’s (yes, actually today’s) New York Times comes this story about governmental efforts to encourage Russians to marry and have children–preferably sooner rather than later.   There’s really not that much that connects with my blog here, beyond the simple point that becoming parents can be understood as a political act–in this case, as a patriotic one.   Plus, it is interesting to see that the concern about two parent families, more particularly about the role of fathers in families, reaches beyond the borders of the US.

Really the political nature of parentage isn’t new at all.   The political nature of parenthood is readily apparent in the struggles over lesbian and gay parentage, some of which I’ve discussed here.  But at issue in Russia is the most conventional configuration of parentage–married male/female parents.   And as the story makes clear, even that can be, in the right place and time, political.

So What Is a Parent Like?

This is a loop back to the earlier topic I started a while ago.  The importance of the topic is newly clear to me, so I want to pick it up again.

Suppose my goal is that the law will recognize the reality of the lives of children and the adults who care for them.   In other words, the people who really are parents will be recognized legally as parents.   Stated like that, what would the objection be?   (Not quite a rhetorical question–there is a real problem with that formulation which I’ll get to in a moment.)

This is essentially what the de facto parent test aspires to and, in a different way, perhaps the holding out test, as well.    They provide legal recognition for people who have played a certain role in a child’s life, on the theory that, like the velveteen rabbit, they are real parents.   

The Norm of Gendered Parenting

This was spurred by both recent media coverage and my ongoing thread on holding out/de facto parentage.

In New York Times Style section  a couple of weeks ago (what can I say, it is summer after all) there was an article about men who have resume gaps because of engaging in child care.  The point of the article is that for women, resume gaps (periods of time out of the workplace when they have been taking care of kids) have become routine and so, at least to a degree, acceptable.   Not so for men.

This article is testimony both to the exceptions and the rule.   Increasingly, men are taking time off to take care of kids.  Or at least men want to.  Or at least some men want to.   Enough so that this is an issue.   But there aren’t enough men who are actually doing it, or the phenomena is too new, to be well understood and accepted.  Thus, while women can apparently take time off are return to work (a skeptically raised eyebrow here?  Is this so clearly true?), men cannot.   Perhaps it’s more reasonable to say that it is easier (which is not to say easy) for women to do this than for men, because women who do this are conforming to some expectation while men who do this are defying one.