You recall the Michigan case I’ve been writing about? (If not, you can get up to speed starting here.) I’ve been thinking about the problems exemplified by that case. (I really just used the Michigan case as a starting point, changing the facts to suit my needs.) While I mostly have had my say, two last things come to mind.
First, I’ve been thinking about Amy. She’s originally a (note that I say a and not the) mother of the child. How long does she remain the mother and under what circumstances does she stop being the mother? Under current law parental rights are essentially eternal unless formally terminated by a court, and the grounds for termination are limited. This is consistent with having a strong commitment to parental rights.
I’m not prepared to say that is a bad thing. Given the importance of a parent/child relationship, we should view those relationships as highly durable. By definition, disrupting or negating such a relationship will bring a high price.
One reason we might need to demote Amy from the “parent” class is to make room for Lisa. I’ve already talked about the possibility that we can have cake and eat it as well–have both Amy and Lisa for parents. Are there independent reasons to decide Amy’s continuing status as a parent? Do we want to punish behavior by suspending or terminating parenthood? These are other questions to keep in mind.
A second point, one that is always there beneath the surface–comes to my mind as I emphasize, over and over again, that I changed the facts in this case. In truth, I had to simplify them to make my point. That highlights something that I often glide over. Family law is messy. We typically do not know exactly what the facts are–people do not agree on them. And no one is perfect, either perfectly good or perfectly bad. Thus, there’s always more complexity and a greater grey area to deal with. I conveniently obscure that by simplifying or cleaning up the facts. But from time to time, it’s important to note. It means that no matter how good the law is, family law will always be messy and imprecise. That’s not a reason not to work for better law. But it is worth noting.