Tag Archives: marriage

Another Instance of the Marital Presumption–this from CA

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

The Thing About Studies

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

The Marital Presumption and Finding a Second Parent For A Newborn

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

One Recent Example of the Marital Presumption In Action

There has been a lot of discussion of the marital presumption here, even though I actually haven’t posted on it recently.  (It’s part of the discussion in the comments on the last post–one about surrogacy–for example.)   Since this very recent case from Michigan crossed my desk, I thought I’d use it as an opportunity to offer a few thoughts.   (You can find much more discussion under these posts if you like.)

A few explanatory words, first.   (Some of this is quite repetitious if you  have been reading the comments closely, for which I apologize.  But for others this might be useful.)

The marital presumption is an ancient one–quite literally hundreds of years old.  The idea (originally) was that if a married woman gave birth, the husband was presumed to be the father of the child.  Continue reading

A Round Up of Birth Certificate News

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

Idaho Allows Second-Parent Adoption

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

A Brief (and not totally irrelevant) Digression For a NY Story: Can A Mother Adopt Her Own Child?

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

Is De Facto Parentage Anti-Male?

This post grows out of an exchange in the comments on an earlier post.   Ki Sarita (not sure about how I should capitalize that) and I have been having an exchange about whether I (or perhaps more narrowly, my opinions?) are anti-male.   In fairness, I think Ki Sarita’s views here are based on far more than that one posting as she is a long-time reader/commenter here.  But I’m going to focus on that post (which is about a case involving a doctrine called “de facto parentage”) in order to make a few points.    I realize they may not address the full scope of Ki Sarita’s argument but I want to make what is perhaps a subsidiary point.   I’m also going to have to cover some background before getting to my point, so some of you may wish to skim ahead.

The idea in de facto parentage is that the law should recognize and protect existing psychological/social parent/child relationships.   De facto parentage is probably most important where a legal parent co-parents with someone who, for whatever reasons, doesn’t gain status as a legal parent in any other way.    Continue reading

Back In the Saddle! Flexible Family Forms and How the Law Should Treat Them

Okay–I’m past most of those milestones, back into the semester, and here I am.   Ready (?) to go for a new academic year.   So I pick up in a random place, dictated by this mornings paper.

Our local paper (The Seattle Times) has its own slender magazine.  This morning it features this story about “the good divorce.”   (If you can get to the pictures on-line there are some nice ones.)I know that there are all sorts of questions about whether any divorce can be good, but that’s not the direction I want to go here.

Instead, I want to look at the family that is at the heart of the story and use that think about how law interacts with social reality.     (I am choosing to say “family” rather than “families” and that, no doubt, could be another point of discussion.)  Continue reading

A (Slightly Muddled) Discussion of the Use of DNA Testing in India

Sorry to be gone so long.  This is a stretch of my life that includes a variety of momentous events (bat mitzvah of daughter, son going off to college, daughter starting high school–and all in three weeks) as well as those that are ordinary in the academic life (starting fall classes) and it is just wildly busy.

Anyway, there’s an article in today’s NYT about the use of DNA testing in India.   Though it’s not perfect, it’s certainly worth a read and it provides some food for thought/discussion.

For the most part, the article looks at how the rise of cheap, easy and accurate DNA testing is playing out in situations where the paternity of married men is questioned.   In this context, perhaps the central observation is that if the DNA of the child does not match that of the husband, then the husband knows that his wife has been unfaithful.  This knowledge brings with it various ramifications.   Notably, it might be grounds for divorce and/or it might be grounds for resisting an order of child support.   Continue reading