Yesterday I began to consider whether there needs to be some consistent hierarchy among the various tests for who gets to be a legal parent. It will be a good deal easier for you to follow this discussion of you read yesterday’s post first. While some of what I have to say here today is repetitive, it’s a bit more organized and also expanded.
Yesterday I laid out six possible tests for legal parentage, each of which is used at least some of the time in some places. I’ve been thinking about the thought-process that has to accompany trying to develop an answer to the “do we need a hierarchy” question.
Perhaps the first thing to do is to examine each test and consider the arguments for an against it. I think for the most part I’ve done this in various posts over the last nearly-two years, so for the moment I’ll skip it. (If you are interested, do feel free to poke around in the archives. You can try using the relevant tags, which should be helpful.)
Let’s assume that, at least for now, I’m not prepared to discard any of the tests. After all, I can always discard them later after I’ve gone through a bit more analysis.
At this point it seems to me there are two possible paths: I can either decide that I’ll go case by case, using whatever test seems best suited to the individual circumstances, or I can try to devise adopt some principles by which to order the tests.
I reject the first option. What that would mean is that there would be no general rules, only individual outcomes. In each case a judge would ask “who should be the parents of this child?” and would presumably answer that test by reference to the best interest of the child. There’s obvious appeal to that, but there’s an enormous downside, too. If the only question is “what is best for the child”, then you end up with no protection for parents. Any judge, any time, could take any child from any family simply by asserting that it would be better for the child to be with someone else. And of course, the best interests of the child is a notoriously flexible concept.
Perhaps some would dissent but I endorse some notion of parental rights. Making parental rights real means that you need to identify parents first and then accord them some leeway in the choices they make about how they raise their children– not unlimited leeway, but some. Only where parents crossed the line could a child be removed from their care.
This is, of course, how our legal system currently functions. And for what it is worth, this formulation is constitutionally required. See, for those of you who care, Troxel v. Granville.)
Having rejected the first path, I must choose the second. Which means ordering the tests (and perhaps discarding some in the process.) And in order to order them, I need some principles by which to measure their relative merits.
One principle should be to assess how each test would serve the well-being of children generally. I realize this might seem to be the very principle that I rejected moments ago, but I think there is a critical distinction. I reject using the well-being of the child in a case-by-case wayto figure out who are the parents of each child. But choosing a general test to use across many cases is a different matter. It seems to me that one ought to choose a test that will generally benefit (rather than harm) children.
To take an absurd example, flipping a coin to choose among various possible parents would be quick, easy and unbiased. But it would take no account of the interests at stake. Any decent test ought to take account of the interests at stake and one such interest is obviously the child’s. After all, I’ve just said I’m going to entrust the child to the people I deem to be parents and then give those parents some leeway.
So–I have now managed to identify one interest by which I will measure my tests. I do not think this needs to be the only interest, however. It seems to me the adults, too, may have some interests that ought to be considered in a general, rather than in a case-specific way. Perhaps I’ll think about those tonight and have something to say about it tomorrow.