Over the long weekend, while I wasn’t posting, I was thinking about the Indiana case I’ve been writing about. (There are two earlier posts–here and here, which you might want to look at to get up to speed.) (I’ve also been irresistably drawn to consider Michael Jackson’s children, which I’ll get to very shortly.)
There’s a factor that complicates my response to the Indiana case, one that I’d like to try and separate out. The dynamic that lead to the grandparent/parent breakdown, which in turn lead the grandparents to sue for visitation, was driven by the grandparents response to their daughter’s lesbianism. It’s explicit in the opinion that the grandparents intolerant condemnation of BLH’s relationship with KW and their refusal to accept KW as a member of their family lead to the litigation.
The grandparents’ conduct strikes me as fundamentally unacceptable. This cannot help but color my initial response to the case. Since the basis on which the grandparents seek to claim rights to the child is unacceptable, it is hardly surprising that I am satisfied with the court’s resolution of the claim–a resolution that rejects the grandparents request.
Here is what troubles me, though. The reaction I describe above is not grounded in the particular analysis of who might or might not be a parent to the child. I find myself wondering how my own response might change if the facts were different.
So I consider this hypothetical. The initial facts match those of the actual case: unmarried woman become pregnant, the man with whom she had sex has no involvment, her pregnancy is difficult, her parents support her and then the child through the first five years of the child’s life. At this point, the mother of the child embarks on a new relationship, and my hypothetical diverges from the real case. Suppose the mother’s new relationship is with a man who is a member of a small racist society. He persuades the mother of the correctness of his view and after a time she decides that she’d like him to play a parent-like role in the child’s life, inculcating the child with his racist views. The grandparents, who are far more supportive of diversity, object and seek visitation with their grandchild.
The facts here are different. But is the case legally distinguishable? Could a court reach a different conclusion consistent with the Indiana case? Do I want them to? Can I argue that in both cases the more tolerant influence should prevail, because it is better for the child and/or better for the world? I think to be consistent with my general theme in this blog, I need instead to focus on what the relationship between the various parties and the child actually is.
What this highlights is that I have not (at least not yet) posed any challenge to the notion of parental rights. The invocation of those rights allows a person to raise a child as she/he chooses. If the grandparents in the original case are allowed to claim parental rights, then they are entitled to teach the child to be intolerant of lesbian relationships. If they mother in my hypothetcial is allowed to claim parental rights, then she is entitled to teach the child to be intolerant of those of different races.
There are two possible ways out of the dilemma, I think. One is to restrict parental rights so that they are more clearly limited–there would be some things (intolerance?) you could not teach your child. The other is to determine who does and who does not get parental rights based on what they would do with them. The latter seems to me to be unprincipled. It would warp the doctrine of who gets recognized as a parent in order to obtain the correct results. And that’s what I fear might be going on in my initial thinking about the Indiana case.
And so I return to the facts of the original case. It seems to me there is a fairly decent argument that for a time, the grandparents should have been entitled to recognition as de facto parents. Had they been recognized as such, this would have stood them on an equal footing with their daughter. It would have shifted the final inquiry that the court made to the “which home is better” sort of inquiry. There’s no telling how that might have been resolved. I’m not at all happy about this, but I think this approach is more consistent with my developing views. And of course, in the real case the grandparents did not claim parental status at the right time, nor would they likely be recognized as de facto parents in Indiana.