The two core legal relationships in family law are marriage (legal relationship between adults) and parenthood (legal relationship between adult and child). Over the years there’s been a lot here on the blog about the connections between those two relationships. But there seem to be an infinite number of ways to come at this and recently I’ve been pondering a couple of slightly different ways to think about this.
First off, I wanted to briefly comment on a tension that arises about the connection between marriage and parenthood in litigation around access to marriage for same-sex couples. There’s been a lot on the blog about the marriage cases and the role parenthood plays in them. The very recent MI opinion is a fine place to see this.
On the one hand, both side in marriage litigation agree that it is best to raise children within a marriage. Now I find this a rather problematic argument to rely on (and I’ll come back to that shortly) but like it or not it is a view that advocates and opponents of access to marriage share. And given that, it’s unsurprising that it’s a view that is affirmed in virtually every court opinion. Continue reading
I’ve only a moment but I wanted to post a quick update here. A couple of weeks ago I was following the hearing in Michigan where the state bar on marriage for same-sex couples was being reviewed. You’ll find a series of posts about the case, really for two reasons.
First, like many if not all of the marriage cases, the MI challenges was (in part) about marriage and children. The plaintiffs were two women raising children. Because they could not marry they could not adopt each other’s children–thus each child had only one legal parent. The women initially challenged Michigan’s refusal to let them adopt each other’s children and did not seek to marry. The judge suggested adding the question of whether the root problem was their inability to marry. 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
You all know I’ve been following that trial in Michigan where a lesbian family brought a challenge to MI’s restriction on who can adopt. The trial itself ended yesterday and now the matter rests with the judge. An opinion is expected in a couple of weeks.
To recap briefly, MI only permits married couples to adopt jointly–which gives the adopted child two legal parents. The plaintiffs in Michigan are two women (April DeBoer and Jayne Rowse) who are a longtime lesbian couple. One woman has adopted two special needs children from foster care, the other has adopted one special needs child from foster care. Each of the three children has one legal mother (and one non-legal mother–by which I mean a social/psychological mother who has no legal status.)
DeBoer and Rowse originally challenged the adoption restriction but the judge suggested broadening the challenge to include MI’s restriction on who can marry. Continue reading
As you will know from earlier posts, there is a very interesting trial proceeding in Michigan. It’s a challenge to laws that prohibit a same-sex couple from marrying and therefore from jointly adopting. The plaintiffs are a lesbian couple each of whom has adopted children out of foster care. Though they have been together for quite some time, the two women cannot adopt each other’s children. This puts the children at risk in various ways–the non-adoptive mother is not a legal parent of the child.
What’s really interesting is that the trial judge is hearing live testimony from a series of expert witnesses of various sorts. You can follow along via twitter coverage or blog coverage or the local (Detroit) paper. I’m sure there will be other coverage, too, but how much can one take in.
So what to think? Continue reading
I’m stepping out of discussions about the marital presumption for a moment to raise what is really a much broader issue. Generally the choices people make when advocating for any particular rule in family law (and in law generally, I would guess) are driven by some goal that they are trying to achieve.
For instance, in family law many people advocate for particular legal arrangments because they care about the well-being of children. Indeed, it is probably fair to say that the well-being of children is the single most broadly agreed upon goal of family law. There are other goals you an advance of course—interests of and/or fairness to adults, say. But the consideration of children—for a whole range of reasons–is often centrally placed in the debate.
Now the fact that many people agree on the centrality of the well-being of children does not mean that people agree on what family law should be. Continue reading
I have some hesitation about returning to the general topic of birth certificates as I know many people get quite wrought about it. But there’s a bunch of different stories out there on the topic so I’ll have a go on it. However, I want to try to set the stage first.
Birth certificates—at least in the US–are rather peculiar documents. Some of what is on them at least looks like a historical record. So for example, birth certificates routinely list the time of birth. That would seem to be in the nature of a historical record–a formal noting of a particular thing happening at a specific time and place. (Place is also in that category.)
But then there are some other things on birth certificates that, though they look like the stuff of historical records, aren’t. One–and the one that has been discussed the most extensively here–is “parents”–or as it sometimes appears “mother” and “father.” US birth certificates do not necessarily list the name of the woman who gave birth–which it seems to me would be the most obvious historical fact they might reflect. Continue reading
In the category of “this just in”–the Supreme Court of Idaho published an opinion today in which it concludes that Idaho law permits a lesbian to complete a second-parent adoption. This warrants at least a short post. I’ve written about second-parent adoptions in the past, (and very recently about NY decision denying a second-parent adoption) but let me do a quick recap:
Second-parent adoptions are of particular importance to lesbian families. If a lesbian couple decides to raise kids, one way to do that is for one woman to give birth to the child. By virtue of giving birth, she will be deemed a legal parent of the child. Continue reading
I’m in the midst of trying to develop a theory of parenthood that solves my “only one parent at birth” problem. (Check out yesterday’s post if this makes no sense to you.) But I need to interrupt myself to talk about this story from today’s NYT. It’s not totally off-point because it concerns the marital presumption of legal parenthood, which has been a topic of conversation in the comments recently.
So here are the basic facts of the NY case. A lesbian couple (Amalia C and Melissa M) decided they wanted to have a child. Melissa gave birth to a child. Amalia sought to complete a second-parent adoption–a process that would make her the child’s second parent without disturbing Melissa’s rights. This is a well-recognized process in NY.
But, according to the judge considering the adoption, there was a problem: The two women had gotten married in 2011 and NY recognized this marriage. Continue reading
There’s a recent story from an Australian newspaper that raises (for me anyway) some interesting questions. There’s a slightly expanded version of the story here, too. But still, I feel like the facts are pretty threadbare. Some of these are simply questions about Australian law–which maybe someone from Australia could answer. But there are also larger issues here.
A lesbian couple wanted to have a child. An identified man provided sperm so that they could do that. I cannot quite tell whether he was someone they knew in passing or someone they knew well or someone they didn’t know at all. Continue reading