For quite a while now I’ve been mulling over a more thorough discussion of the role of nature in arguments about parenthood.   I’ve touched on this topic before–here, for example.   (I’m going to make a tag for “nature” and I’ll try to go back and tag some of the older entries, but that is for the future.)  “Nature” is frequently in discussions about who is or is not, or who should be and who should not be a parent. 

You can start with the phrase “natural parent.”   I think to most people the woman who gives birth to a child she is genetically related to is a natural parent of the child, while the natural father would be the man who provided the sperm.  (Unless of course he was a sperm donor, in which case you are in the realm of ART, where the “A” used to stand for “artificial” as distinguished from “natural.”)   I think the idea here is really to distinguish a natural parent from an adoptive parent, who is a parent by action of law rather than by action of nature.    The parental status of the former is simply in the nature of things–it owes nothing to culture or civilization or law.   (Law does, however, generally confirm the parental status of natural parents.)     

Next come the arguments that particular family forms are superior because they are natural.    It is said to be natural (and hence good) for a child to have a mother and a father.   From this it follows that if instead you have only one parent (mother or father) or you have two parents of the same-sex, it is unnatural, which must also be bad.  

Then yesterday I happened to be on a whale watch where the naturalist discussed the roles of the male and the female humpback whale in raising a humpback calf.   The female is an attentive parent, keeping the calf with her for many months.  (She was referred to as “the mother.”)  The male, however,  is entirely uninvolved.   (And perhaps correspondingly, he was not referred to as a father, but simply as “the male.”)   Some naturalists theorize that the male whales have time to develop more sophisticated feeding techniques than female whales, because they have no child-care obligations.   All of this is, of course, quite natural.   

I’m not going to suggest that whale society should be model for human society.   But this certainly seems like a model from which one could argue that having two involved parents is unnatural.  At least, unnatural for a whale calf, though not necessarily bad.  

Really though what I want to develop is a different argument about the problem of invoking nature in this context.   It’s not at all clear to me that being a good parent is something that comes naturally.   Certainly it does not come naturally to all of us.   There are countless stories in the media of parents who clearly damage their children, often through ignorance or out of fear/frustration/despair.    You might well be the natural mother of a child when you are fifteen, but there’s no reason you would naturally know what to do to care for the child.  

I don’t mean to suggest that this is an evil wrought by modern civilization which has destroyed our natural instincts towards parenthood.    Caring for an infant isn’t easy.  It wasn’t easy a hundred years ago or a thousand years ago.   It is, I think, a mistake to believe that it will just come “naturally” rather than as a result of time and effort, of teaching and learning.   Invoking nature as somehow defining parenthood obscures the extent to which parenting a human child is a tremendously demanding and challenging task.              

Of course,

Over the long weekend, while I wasn’t posting, I was thinking about the Indiana case I’ve been writing about.  (There are two earlier posts–here and here, which you might want to look at to get up to speed.)   (I’ve also been irresistably drawn to consider Michael Jackson’s children, which I’ll get to very shortly.)  

There’s a factor that complicates my response to the Indiana case, one that I’d like to try and separate out.  The dynamic that lead to the grandparent/parent breakdown, which in turn lead the grandparents to sue for visitation, was driven by the grandparents response to their daughter’s lesbianism.   It’s explicit in the opinion that the grandparents intolerant condemnation of BLH’s relationship with KW and their refusal to accept KW as a member of their family lead to the litigation. 

The grandparents’ conduct strikes me as fundamentally unacceptable.  This cannot help but color my initial response to the case.  Since the basis on which the grandparents seek to claim rights to the child is unacceptable, it is hardly surprising that I am satisfied with the court’s resolution of the claim–a resolution that rejects the grandparents request.    

Here is what troubles me, though.   The reaction I describe above is not grounded in the particular analysis of who might or might not be a parent to the child.   I find myself wondering how my own response might change if the facts were different. 

So I consider this hypothetical.   The initial facts match those of the actual case:  unmarried woman become pregnant, the man with whom she had sex has no involvment, her pregnancy is difficult, her parents support her and then the child through the first five years of the child’s life.    At this point, the mother of the child embarks on a new relationship, and my hypothetical diverges from the real case.  Suppose the mother’s new relationship is with a man who is a member of a small racist society.   He persuades the mother of the correctness of his view and after a time she decides that she’d like him to play a parent-like role in the child’s life, inculcating the child with his racist views.   The grandparents, who are far more supportive of diversity, object and seek visitation with their grandchild. 

The facts here are different.   But is the case legally distinguishable?   Could a court reach a different conclusion consistent with the Indiana case?   Do I want them to?   Can I argue that in both cases the more tolerant influence should prevail, because it is better for the child and/or better for the world?   I think to be consistent with my general theme in this blog, I need instead to focus on what the relationship between the various parties and the child actually is.  

What this highlights is that I have not (at least not yet) posed any challenge to the notion of parental rights.   The invocation of those rights allows a person to raise a child as she/he chooses.   If the grandparents in the original case are allowed to claim parental rights, then they are entitled to teach the child to be intolerant of lesbian relationships.    If they mother in my hypothetcial is allowed to claim parental rights, then she is entitled to teach the child to be intolerant of those of different races.     

There are two possible ways out of the dilemma, I think.  One is to restrict parental rights so that they are more clearly limited–there would be some things (intolerance?) you could not teach your child.   The other is to determine who does and who does not get parental rights based on what they would do with them.   The latter seems to me to be unprincipled.  It would warp the doctrine of who gets recognized as a parent in order to obtain the correct results.   And that’s what I fear might be going on in my initial thinking about the Indiana case.

And so I return to the facts of the original case.  It seems to me there is a fairly decent argument that for a time, the grandparents should have been entitled to recognition as de facto parents.    Had they been recognized as such, this would have stood them on an equal footing with their daughter.  It would have shifted the final inquiry that the court made to the “which home is better” sort of inquiry.   There’s no telling how that might have been resolved.  I’m not at all happy about this, but I think this approach is more consistent with my developing views.  And of course, in the real case the grandparents did not claim parental status at the right time, nor would they likely be recognized as de facto parents in Indiana.

In my last post, I discussed a recent Indiana case at some length, outlining both basic facts and law.  You’ll probably be better off reading that post first.    Here I want to talk about what interests me about the opinion. 

This is one of those cases that illustrates exactly how important it is to be recognized in law as a parent to the child.   The mother prevails not because the court investigates which household would be the best place for the child to live and decides it is her household, but rather because she is a parent and so her decision about what is best is entitled to respect.     

The inquiry about which household is better—which generally lies at the core of a “best interests of the child” analysis—leaves the presiding judge an enormous amount of discretion to determine what she/he thinks is better.   This can be particularly treacherous a parent who does not conform to traditional model–a single mother, a lesbian mother, or a single lesbian mother, as BLH (the mother here) once was.   It’s not hard to imagine a conservative judge concluding that it’s better for a child to have a married mother and father.   (This is just what the trial court in a recent West Virginia case concluded.)   But a parent is shielded from that inquiry by invoking parental rights.   

Only another legally recognized parent can challenge the mother here on an equal footing.   There is one such person, I gather.  That is TY, identified by the court as the father of the child.   Yet TY has had absolutely no relationship with the child as far as we can tell.   All of the other players on the stage (the grandparents and the new partner) have more substantial relationships with the child.   Yet he gains a superior legal status they cannot have, purely by virtue of having provided the DNA to create the child, not as a donor but as a man who had intercourse with BLH.  

While the privileged status accorded TY here has no impact on the outcome of the case, it nevertheless strikes me as somewhat absurd.   It seems to me that in any rational family law system, the claims of those individuals who have demonstrated some commitment to the child would be entitled to somewhat greater respect than those of a person with the lack of interest demonstrated by TY> 

The next questions that comes to my mind is whether the grandparents could have asserted rights as parents.   While it might seem impossible to be both parent and grandparent, it’s really not.  Grandparents may take full or substantial responsibility for raising their grandchildren and when they do, they may meet the qualifications as a de facto parent.    

Here is where the question of timing might come in.   There was a period of time in this case where the child lived with the grandparents while the grandparents were primary caretakers.   Suppose the grandparents had sought recognition as de facto parents during the time that?   There are jurisdictions in which they might have presented a plausible case.  Indeed, I think had this case arisen in a different context, I might have argued they should be recognized as parents.  

Had they done this, it would have dramatically altered the contours of the court’s inquiry.  Instead of deferring to BLH’s wishes, a court would have compared the grandparents and BLH.   And it would have operated with a presumption that each party was entitled to maintain a relationship with the child.  

And finally, once can consider the status of KW.   By the time the case came to trial, KW might have been in a position to invoke the de facto parent doctrine.  (Again, I say this not with regard particularly to the law of Indiana, about which I do not have special expertise, but as an academic thinking about family law generally.) Were KW and BLH to separate, I might well argue that each is a parent to CLH and hence entitled to equal status in determining the custody of the child. 

Was there a time when the grandparents, KW and BLH were all parents to the child?  Did the grandparents move out of that role as KW move into that role?   How quickly can these roles shift, anyway?   These are the timing questions that perplex me and that inevitably must be answered if you apply a de facto parent test.

A new case from Indiana  raises a host of issues about de facto parentage, parental rights, and the passage of time.   Some of these connect up to issues in the de facto case from MissouriI blogged about.   Others are reminiscent of questions I raised in the post about  David Goldman and passage of time. 

It takes a little while even to recite the facts, which means this discussion may need to span several days.   But as is always the case in family law, the facts are critical.  I’ve linked to the full opinion above and you can also read the excellent summary from Professor Art Leonard’s blog.   

BLH was a single mother.   She gave birth to CLH in 2001.  CLH was apparently conceived through intercourse and so has a father, TY.   TY has not provided child support and has never been substantially involved with the child.   Nonetheless, since his rights have not been terminated, he remains a parent of the child, albeit one always in the far distance. 

BLH’s pregnancy was complicated.  She lived with her parents, GLH and BJH, throughout it and for the five years after CLH was born.   BLH’s parents–CLH’s grandparents—were primary caregivers of CLH from September 2002 to 2007.  (From 2002 to 2004 BLH’s work schedule required her to be out-of-town three or four nights a week.)   BLH moved out of her parents house in 2006 leaving CLH with her parents.   CLH moved into BLH’s house in 2007.

In early 2007 BLH met and began dating KW.  KW is a woman.   BLH’s parents did not approve of this relationship and would not include KW in family gatherings, though they continued to include BLH and CLH.   Unsurprisingly, their disapproval of BLH’s lesbianism created significant tensions.  

In mid-2007, KW quit her job to stay home and care for CLH.  As time passed, CLH became rooted in a family consisting of BLH and KW and the relationship between both BLH and CLH and the parents/grandparents became more difficult, particularly as the grandparents were unwilling to acknowledge KW’s relationship with the child. Eventually, the grandparents sued seeking visitation with CLH.  This is what lead to the opinion just issued.  

Before describing the opinion, I need to discuss a bit of law.   Indiana, like many states, has a statute specifically designed to allow grandparents to seek visitation with their grandchildren.   These statutes recognize the important (sometimes unique) role grandparents may play in a child’s life.  States with grandparent visitation statutes place grandparents in a special category—not as privileged as a parent, but more privileged than other non-parents, including other relatives. 

As an alternative, some states have third-party visitation statutes that apply equally to all third-parties, depending on the actual relationship between the third-party and the child.   Third-party visitation statutes can be used by grandparents, but may also be employed by wider range of people who have played a role in a child’s life. 

Grandparent visitation statutes are necessarily employed in situations rife with generational discord.  By definition, grandparent visitation cases arise in situations where the relationship between the generations have substantially failed.  Litigation rarely improves matters.   (Sometimes, as is the case here, the parent at odds with the grandparents is the child of the grandparents.  In other instances, the parent is the former partner of the grandparents’ child.  It’s hard to assess which of these would be the less propitious circumstance.)  

In the end in the Indiana case, the CLH wins.   She does so because she is recognized as a parent, and as a parent she generally gets to decide what is best for her child.    That’s exactly why being a parent matters.   But there’s more to say about this particular saga so I shall return to it in my next post.