Suffering Loss

On one level I cannot believe that I am going to start yet again with something about Nebraska.   But this is to raise a much broader point.

There’s been a bit of coverage of the hearings to change Nebraska’s safe haven law.   What struck me about the story I linked to is the discussion of the harm done to children who are abandoned by their parents.    It seems to me there are two parts to this harm.  One is the knowledge that the parent has abandoned the child–has chosen to separate from the child.   The other is the actual disruption of the parent/child relationship.   As the article notes, many of the parents are not acting lightly.   They are not acting because they do not love their children.  To the contrary, they are leaving the children because they do love them and cannot think what else to do.

It’s not hard for me to see that the disruption/destruction of the parent/child relationship is a terrible thing for the child (and the parent, but let’s focus here on the child.)   Sometimes–as when a parent dies–it is simply unpreventable.   Though even then there can be a sense of abandonment.   But it seems especially tragic (and perhaps especially consequential) when it doesn’t have to be that way.

Now I think the harm occurs because of the nature and depth of the relationship disrupted.   That’s why it is different to abandon a 30-day-old and a ten-year old.   If we were to discover that one of the parents in the article wasn’t actually genetically related to the child in question, I don’t think we’d therefore say that there really wasn’t any harm done.   Indeed, I don’t think we know anything at all about the genetic relationship between the parents who testified in Nebraska and the children they left.   We know their social relationships.  In their eyes and in the eyes of the children, these people were parents.   And therein lies the pain and the tragedy. 

Now you can probably see where I want to go with this.   Genetics is not what makes a person a real parent.   Being a parent is what makes you a real parent.   If  the point of legal rules is to protect children (and perhaps adults, too) from suffering unnecessary harm through deprivation of these critical relationships, then the law should comport with reality.  It should recognize the de facto parent and the functional parent.

I’ve written quite a bit about this on the blog–if you look under the tags “de facto parent” or “functional parent” you’ll see for yourself.   In far too many instances, courts miss this point.   Children and their parents live in the real world, and they have real relationships.  The goal of law should be to recognize and protect these relationships–the real relationships that exist out there.   You can see that reflected in the story about Nebraska.   It’s the real pain that is caused, the real scars inflicted, that cry for our attention.  Formalistic rules of parentage–rules based on DNA or legal relationship to another adult–will all too often fail to reach these cases.