I know there are many comments waiting for me at the last posting, but I want to press on here first. In some of my earlier replies I wrote about a topic that has interested me for years. this is a good moment to elevate its status. It deserves a post of its own. You will all have to forgive me for lapsing into serious law professor mode.
It is generally agreed that if you are a parent then you have parental rights and the state cannot terminate or infringe on those rights without 1) proper process (typically notice and a hearing of some sort), and 2) a really good justification for the state’s action. It’s also generally (but not universally) agreed that parental rights are entitled to protection under the United States Constitution.
This means a tremendous amount turns on that first question: Are you a parent? In the context of con law the question could be more fully stated as “Are you a parent for purposes of the United States Constitution?” The United States Constitution doesn’t include any particular definition of “parent” in its text so figuring out what the constitutional meaning of the word “parent” is can be rather a project.
Before I get to that, though, it’s important here to understand the interplay between state law and the constitution. I think everyone agrees that the initial task of defining who is a parent (legally) falls to the states. And as you will know if you have read this blog for a while, the states vary in how they do that. People who are identically situated will be recognized as parents in some states and not be recognized as parents in other states. This is striking and interesting, but not in and of itself a constitutional problem.
While the states get to decide who is a parent they do not have unlimited freedom in crafting their definitions. The Constitution provides some constraints. To see this, consider a well-known case–Stanley vs. Illinois. (I know this is redundant for those of you who read all the comments yesterday. Sorry.)
Peter and Joan Stanley lived together intermittently for 18 years. They had three children. When Joan died Illinois said the children became wards of the state because the way Illinois defined ”parent” didn’t include Peter Stanley. There are several possible problems here–for instance, if Peter had died Joan would have been recognized as a parent and you might see that as sex discrimination. The actual rationale for the result isn’t as clear as one might wish, but the result is clear: The Supreme Court held that Illinois couldn’t just decide that Peter wasn’t a parent–that violated the Constitution. I think it is fair to say that the case tells us that Constitution requires that Peter Stanley be recognized as a parent.
At the other end of the spectrum is Lehr vs. Robertson. Lorraine Robertson was unmarried when she gave birth to a child. Jonathan Lehr asserted that he was the biological father of the child. When the child was two, Lorraine and her husband adopted the child. Lehr asserted that he should have had a chance to object to the adoption.
Now because no hearing was held, we don’t have a record of testimony but we know what Lehr said he could prove. Lehr and Robertson had been together for a couple of years before the birth of the child. She told everyone he was the father and he visited her every day in the hospital. When she left the hospital she did her best to hide from him. Every time he figured out where she was he tried to visit. Eventually he was unable to find her and hired a detective. When the detective found her Lehr offered to provide support and establish a trust fund for the child. He hired a lawyer to begin an action to seek visitation. It was perhaps in response to this that Robertson and her husband began the adoption proceeding. (All of these facts are recited in the dissenting opinion as the majority did not think them significant.)
For all that he did do, there is one thing that Lehr did not do: Send a postcard to an office in NY that keeps track of men claiming to be fathers. If he had sent that postcard he would have gotten notice, but since he didn’t, he was not.
The US Supreme Court affirmed, holding no constitutional defect. I think the case says, in essence, that Lehr is not necessarily a father as a matter of con law. He’s in a category where a state could recognize him as a father if it wanted to but it was also okay to not recognize him. Thus, he is not like Peter Stanley who must be recognized as a father. New York’s choice not to recognize him is permissible.
I will stop here for now–long enough for one day. More con law tomorrow.