Tag Archives: marriage

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

Michigan Trial Ends–Decision to Follow

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

A Different Presumption–this one from Mississippi

I’ve got a couple of recent posts up about the marital presumption.  I thought I’d add another case–this one from Mississippi.  It’s not a marital presumption case, as you can see.   (If anyone can help me understand why it isn’t, I’d be grateful. Is it possible that MS no longer uses the presumption?   Do tell if you know.)  But the facts are similar to the recent CA case I wrote about and there is a presumption at work.

So here’s the story.   Anne and Jake had an intimate relationship before the married.   But during that time, apparently unbeknownst to Jake, Anne had a one-night stand with Tommie.  Anne got pregnant.  Tommie suspected the child might be his, but he knew about Jake, too.  Jake didn’t know about Tommie and so assumed that he was the father of the child.

Anne and Jake got married in June 2004 when Anne was 17 weeks pregnant. Continue reading

Michigan Trial Watch

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

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