Tag Archives: marriage

Yet Another Look At The Marital Presumption–Kansas Weighs In

As you’ll know if you’ve been reading here regularly, I’ve run across a whole string of cases involving the marital presumption recently.  (This is the presumption that a child born to a married woman is the (legal) child of the woman’s husband.)   These cases all arise when a man who is not the woman’s husband can invoke DNA testing to demonstrate that he is the genetic father of the child.   And then the question is “what next?”

In most of these recent cases the husband and wife standing together can fend off the genetic father.   There’s a sort of “he should have known better” response.   (If the husband doesn’t want to claim legal parentage, he typically doesn’t have to.)   In one (from CA), the case is remanded for further proceedings, though my sense was the husband was likely to win there.

Here’s yet another of the cases, this one from Kansas, decided by the court of appeals there last week.   I think it follows the path laid out in CA though the ultimate outcome seems less clear to me.    Continue reading

Another Look At Why You Ought Not To Try Surrogacy Without Lawyers

There’s a new opinion from Texas that serves as a bit of a cautionary tale.   Marvin McMurray and his partner wanted to have children.   A friend of Cindy Close agreed that she would become pregnant via IVF using embryos that were created from McMurray’s sperm and an egg from an unknown provider.   Close gave birth to twins–twins she was not genetically related to.

I think what I’ve said so far is what everyone agrees about.   But if that looks like an odd telling of the story, it’s because at the core of the story is a fundamental disagreement and so I haven’t recited it.   Instead I’ll give you two versions–keeping in mind that I have NO IDEA what’s true here.

McMurray version:  Close was a friend helping out McMurray and his partner by serving as a surrogate.  She wasn’t going to be a parent to the children.  (It says she would play “no role” but I assume this might mean “no special role” since if she’s a good friend she’d like be around some.).

Close version:  McMurray was aware of Close’s desire to have children and they agreed to coparent.   (This of course makes me wonder about why the third party egg, but there could be reasons for that.) Continue reading

Why The Husbands Win

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

The Problem With Hierarchies of Parental Rights

I’m returning to a theme I’ve written about before here.  I’m doing this for two reasons.  First of all, before is about four years ago and many readers may not have been readers then (or if they were, they may have forgotten about this).   In addition, I am a different person today than I was then (then being 2010) and so perhaps I have something different to say.

In fact, I think the same thing has moved me to write today as moved me to write in 2010:  Michael H vs. Gerald D.   I won’t discuss it in any detail here.  You can read the opinions (though it’s not an easy slog) or you can read the earlier posts about it.   But for today’s purpose a quick outline will suffice.

Carole was married to Gerald.  She had an affair with Michael.   She got pregnant and Victoria was born.   Victoria is (let us assume, as it was a 98% likely proposition) genetically related to Michael.   Carole and Victoria live for a time with Michael and for a time with Gerald, but eventually it seems that Carole and Gerald reconcile and settle down.   Continue reading

Musing on Marriage and Parenthood

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

Michigan Court Strikes Marriage Restriction

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

More on UT and Unmarried Fathers–This Time With The Marital Presumption, Too

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