As promised, I’m picking up on yesterday’s post. You should probably have a look at that first.
First let me explain why that Michigan case reminded me of the West Virigina lesbian foster mothers case I had just written about before that. I think Lisa in yesterday’s case is really a parent of the child. Similarly I think Kutil and Hess are really the parents of BGC. In saying that these three women are really parents I mean that if you look at how the children’s worlds operate, these women are in parental roles. They are doing the actual work of parenting.
But at the same time, in the eyes of the law, these three women are not legal parents. And if you are not a legal parent to a child, you are nothing much at all, at least as far as the law is concerned. And, as I’ve explained before, we have a very strong preference in favor of legal parents over anyone else at all.
This disconnect between the law and reality lies at the heart of both cases–it is what makes both cases difficult legal cases–and so I see them as similar.
I also see a similar solution in both cases: contruct the law so that it necessarily reflects reality. I’ve discussed this frequently under the terms “de facto parent” and “functional parent.” Sometimes, in some states, the law does this. But too often it does not.
That’s partly because many courts have a firm commitment to the idea that there can be two and only two parents. There are already a number of ways in which can get to be a parent–by being married to a woman who gives birth, by having a genetic relationship to a child, by holding out the child as your own (all of these are elsewhere in the blog). If you add de facto parents to that list, you’ll clearly be facing the possiblity of three or more parents with increasing frequency. (Three parent cases come up already from time to time.)
Which leads me back to the Michigan case I wrote about yesterday. What should we do about Amy? Amy was clearly the mother of the child for a while. And legally, as far as I’ve told the story, she still is. It’s possible that she be in such trouble that there are grounds to terminate her parental rights, and if she is and if that is done, than it is fairly easy, really. But suppose she is not. Suppose she is not quite unfit (a legal term as I use it here)?
I’m prepared to believe it might be better for the child, over all, to recognize Lisa as a parent, allow the child to live with her, but also to continue to recognize Amy as a parent so that there is a legally recognized relationship there, too. Of course that means two mothers. And not the lesbian couple kind of two mothers.
Can we make that work? Do we need to consider creating tiers of motherhood or parenthood and give Lisa superior status even though both Lisa and Amy are parents? That last really disrupts a lot of existing family law, but surely we should consider all possibilities.