Maybe I should note first that hierarchy cases usually arise in a specific circumstance–when more people are claiming status as legal parents than can be allowed. So here, for example, two men claim to be the father but only one can be recognized as a father.
When this happens the court must choose among the contestants. That might mean making an individualized decision about the best interest of a child, but for reasons I discussed earlier it more typically means reference to some hierarchy. Just as in poker, a full house beats two pair, so in parenthood, some grounds for claiming parenthood will beat others.
I’d distinguish this from two other situations. Sometimes we’re looking for someone to take on the status (and obligations) of parent and we are short of volunteers. When this happens, the court just needs to find someone it can assign the role and there is generally no comparison among possible candidates–after all, the premise of this is that we are short of volunteers.
The third distinct situation is where someone already filling the role of legal parent is trying to fend of another person from claiming co-equal rights. You see this when a lesbian legally recognized as a mother is trying to defeat the claim of her former partner that she, too, is a mother. This is not a problem unique to lesbians, though. Anyway, in cases like this the assertion isn’t so much about hierarchy as it is a flat out argument that the person asserting a claim simply is not a parent.
That said, back to hierarchy. In this instance one man, Kevin Q, asserted a claim to be the father of Matthew by virtue of having taken Matthew into his home, acted the role of father, and so on. (The facts or the case are constested.) Another man, Brent, asserts a claim to legal fatherhood based on two things taken together–a biological link and the execuation of a voluntary declaration of paternity, sometimes also called a Voluntary Affidavit of Paternity (VAP).
Rather than considering the well-being of the child, either specifically or generally, the court referred to the relevant statutes and concluded that Brent’s claim defeated Kevin’s. At least in the view of these judges, genetics plus VAP ranks higher in the hierarchy of parental status than does functional parenthood or holding out. Though holding out or functional parenthood will provide a basis for parental status in California, it is beaten out by the VAP plus biology wins.
I think this is quite problematic. I won’t labor over the facts of the case at hand, but imagine this. Woman has one night stand with Man 1. As a result she is pregnant. She begins a relationship with Man 2. Man 2 knows he is not genetically related to the child, but he steps up anyway. He acts the role of a father for two years. Then the woman and Man 2 have a falling out. If the woman can find Man 1, they can use a VAP to completely cut out Man 2.
Whatever you think of the biological argument (and I am not a particular fan) it’s very hard to see why biology plus some signatures on a piece of paper a couple of years in should win if biology alone would not. What if the woman is actually using Man 1 to ward off Man 2, with no real interest in him playing any parental role with the child.
VAPs are meant to be a simple way of establishing legal status as a parent, particularly in the absence of marriage, likely in an effort to ensure that all children have a legal father. They were really not designed with the hierarchy in mind. But that’s so often the way family law goes–what is meant for one thing gets used for another. Sigh.