I’ve been teaching the cases that I’ve recently posted here–the string of cases from CA, UT and MI in which a woman gives birth and both her husband and her ex-lover want to be legal parents to the child. In each of them the ex-lover is the genetic father of the child. In two of the cases the husband wins decisively. The one from CA is less clear–it is remanded for further proceedings. But it seems very unlikely to me that the genetic father can prevail under the described test.
As I reread the cases I was struck by the ways in which the different courts justified their conclusions. I thought it was worth summing them up here.
Before I do that, though, I want to note that none of these are really constitutional cases. Continue reading
Here’s a fairly recent UT opinion that lies right at the intersection of two lines of conversation here. You could think of this as one more UT unmarried father case. (There have been a whole series of those discussed here over the years. One was the topic of yesterday’s post.) But it is also a case about the marital presumption–something we’ve all been discussing fairly recently.
It is somewhat surprising to me that I have come across several marital presumption cases in the last months. I don’t know if this is chance (that I ran into them), chance (that the topic came up in different states) or some sort of meaningful pattern. Whatever it is, I can assure you that I’ve put up posts on all I have come across–I am not selecting to make a particular point.
That said, there’s nothing terribly surprising about the UT decision. UT has a strong preference for having children raised by married couples. (Perhaps it is worth noting that until recently that necessarily meant different-sex couples, but UT is one of those states where the restriction on access to marriage has been successfully challenged in federal court. Continue reading
I think we are rightly sensitive to issues of gender equity in parenting, but it seems to me it is also necessary to think critically about them. This was brought home to me by this story in the newspaper today. Does equality give a genetic father the right to be present at the birth of his child, just as the genetic mother will be? Or does the different between being the one giving birth and not being the one giving birth justify different treatment?
For anyone who thinks hard about parentage gender equity is a difficult topic. There are so many levels of sameness and difference that figuring out what amounts to equal treatment can be tricky.
On the one hand, men and women each contribute genetic materials to a child. On that basis one could determine that they are similarly situated and so principles of equality would suggest equal treatment is appropriate. But on the other hand, women are pregnant and men are not. If in this regard they are not similarly situated, then equal treatment is not warranted. How does one fit together the sameness and the difference? Continue reading
In honor of the Academy Awards I thought I would put up a brief post about parenthood in the movies. I’ve written on the general topic (and more broadly, parenthood in popular culture) in the past. Since I believe the legal definition of parent is socially constructed, it’s depiction in popular culture can be important.
Anyway, on the eve of the Oscars I got to see American Hustle. (For the record, it was nominated for ten Oscars, won absolutely nothing, but I thought it was quite good.) It’s about a con artist–Irving Rosenfeld (played by Christian Bale–who is pretty much a small-time, low-life sort of guy. He’s ensnared by the FBI and ends up being used to ensnare increasingly valuable (and generally corrupt) defendants. Based on a true story, as they say.
Rosenfeld is a complicated character. He’s a crook. He preys (at the outset) on other crooks. He has both a mistress and a wife. It’s hard to say he is admirable. Continue reading
A little while back I wrote about a Michigan case involving the marital presumption. (Briefly stated, the marital presumption means that when a married woman gives birth to a child her spouse (and these days that can mean her wife) is presumed to be the legal parent of the child. That’s enough for now (you can read up on it in the earlier post). I’ll just also note that 1) all states have some form of the marital presumption and 2) it’s a presumption about LEGAL parentage–who is the legal parent of the child.)
As I’ve said, different states have different versions of the presumption. It can be easier or harder to rebut, depending on where you are, for example. MI, we now know, has a version that allows a husband to invoke it even if his (ex-)wife doesn’t want him to. This means he can claim legal parentage of a child that is genetically related to his wife and another man. Continue reading
I wrote a recent post about studies–social science studies about parenting, etc. I sort of feel like I’m in a “can’t live with them, can’t live without them” sort of spot–they frustrate me in many ways, but I’m not prepared to say we don’t need them or shouldn’t consider them.
Perhaps the point I’d make (though you can just go read that post) is that we need to view them critically–all of them, even the ones with conclusions we like. There are, after all, better and worse studies. Continue reading
This is going to just be a short post to tie a couple of threads together. Yesterday I blogged about the marital presumption, using a recent MI case as my example. A few weeks ago I blogged about the problem of finding two legal parents for a newborn child. (That’s a particular problem for me, as the post I linked to and an earlier one explain.).
Anyway, it occurred to me that it was worth noting that the marital presumption is the way we generally solve the problem of finding a second legal parent for a newborn. One parent is the woman who gives birth and the second is her spouse–until recently her husband, but now in some states potentially her wife. Continue reading
Welcome, everyone, to 2014. I’ve been on vacation, doing a bit of travelling and afflicted by some sort of nagging virus that seems to wax and wane inexplicably. But now I am back and lo, it is a new year. I hope the season has treated everyone well.
Mostly what I’ve been doing is reading and, for once, reading fiction. I tend to read mysteries (ones that are not too tense) and also current literature (think The Goldfinch, which I highly recommend.) And I’ve had a lot of time to do that recently.
What struck me–more forcefully than it has before–is how common it is for plots to turn around the paternity or parentage of a character. This seems to be particularly true in mysteries. How many times have I read a story where the key lies long in the past, where a child is born and the parents aren’t quite who they should be or are believed to be or whatever. (I just finished one of these last night.) There are infinite variations: the child is born to the wife but is not the husband’s and the husband doesn’t know; the child is born to the wife and is not the child of the husband and the husband does know; the child is actually adopted but no one has told the child and so on. Continue reading
Some time back I wrote about a documentary I wanted to see called “Stories We Tell.” It was made by a young woman named Sarah Polley and it is autobiographical. I’ve now had a chance to see it and it made me think.
Polly is the youngest of five siblings. (I use this term loosely as you will see.). Her mother, apparently a quite dynamic figure, died some years ago, For many years there was a family joke that her mother’s husband–the man who Sarah Polley referred to as her father–was not in fact genetically related to her. For whatever reasons, Polly decided to investigate. The film is not so much the story of her investigation as it is the story of what all the players involved make of it all.
Actually, it isn’t really what all the players make of it. Continue reading
You may recall that just before Thanksgiving I blogged about a custody dispute between Bode Miller (famous US skier) and Sara McKenna. They had a brief relationship during which she became pregnant. Since there really wasn’t much of a relationship between the two, it’s probably not surprising that a custody fight followed. But the particular course of the custody fight was somewhat remarkable. (I’ll just link to the first of a string of earlier posts so that you can catch up if you want.)
The key thing was that one judge in NY seemed to think that McKenna had behaved badly because after she and Miller broke up and after she realized she was pregnant, she moved to NYC to take advantage of an educational program at Columbia University. The decision, originally made in the spring, lead that judge to kick the custody case back to CA, where a judge awarded custody to Miller–I’m not sure on what basis. Eventually a NY appeals court reversed the trial court in a scathing opinion–essentially recognizing that McKenna did have a right to travel even if she was pregnant. Continue reading