CA Case About Hierarchy–Too Many Dads?

A few days back I wrote a couple of broad posts about the hierarchy of parenthood.  They were pretty abstract, not rooted in any case.  But here is a recent case  from California that shows what I mean. 

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.

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11 responses to “CA Case About Hierarchy–Too Many Dads?

  1. I’ve read the case. The genetic father who was married to another woman made the effort to determine whether he was the father via a DNA test in pregnancy, paid support both during pregnancy and after birth, visited the child occasionally and received brief updates on the child frequently. To me it seems that he is a pretty good father of a non-marital child and certainly had not abandoned his son. I can’t see that there was any vacant position for another guy to call himself dad. In my view a genetic father should always be the father unless he has died or given the kid up for adoption together with the mother or totally abandoned his child. Even a hands off genetic father is better than a hands on non-genetic father.

    • I think the facts in the case are probably disputed by the parties, which is why I focussed less on them than on the principle. But I find your last statement quite striking and I couldn’t disagree more.

      Maybe I am reading what you say too broadly? A hands-off genetic father might be a person who has completed his contribution to the child with the provision of sperm. Could that really be a more important relationship than one a man who has played a parental role for the child, day in and day out, for three, five, or even ten years?

      I’ll agree that the genetically related man has some unique status. And perhaps we should fight the law’s insistence that we choose one of these two men (the hands-off bio guy or the hands-on non-bio guy). But it seems to me that at some point the man with the genetic connection is too hands-off for too long and the other man is hands-on enough for long enough so that, for the sake of the child, the balance should tip in the latter’s favor.

      The problem, of cousre, is that this creates and incredibly messy rule of law, one that won’t be easy to apply and won’t give you a lot of predictablity. That’s a real drawback, but I would accept that and try to amelieorate it rather than always favor the bio guy.

  2. Sandy May,

    I agree when you say: Even a hands off genetic father is better than a hands on non-genetic father

    It is well known that relationships involving a non-genetic father breaks down at a significantly higher rate than relationships involving a genetic father. More importantly however, it is rare that the relationship between a non-genetic father and the child continue after a divorce. Sociological studies can attest to this fact, and they reveal a lot about how parenthood is understood in our culture.

    “Intentional parenthood” sounds like a nice altruistic concept, but its duration can be questioned. Our children need a fixed point in a changing world. It used to be family. Now, I suppose, it is that they have to pay off our debts.

    • As with Sandy May’s comment above, I really have to wonder–is the hands-off genetically related man always preferable to the hands-on not-genetically related man? If the hands-off guy is very hands-off for a long time and someone steps up to do the job, should we really favor the hands-off guy just because he has changed his mind and come back into the picture? It would surely discourage any man willing to take on the responsibility of raising a child that was not genetically related to him to know that if at any point the genetically related man changed his mind, he’d have priority.

      Here’s an extreme and totally hypothetical problem: One morning, A goes to the door and finds a baby on the doorstep. It has been abandoned there. No one can identify where the baby came from. A, or perhaps A and B together, decide to raise this child. They do so for ten years. They know full well they are not biologically related to the child.

      Then, when the child turns ten, C and D appear. They are genetically related to the child. They left the child on the door step then years ago. But now that they are older, they’d like to be parents. A and B object to this.

      Surely we ought to prefer A and B, no?

  3. I believe you two are referring to something called “kin altruism”. There is no denying that this plays a role in our social family dynamics. This reminds me of an article I read by Don Browing which you might find interesting:

    http://www.mercatornet.com/articles/view/defending_the_family_with_the_universal_declaration_of_human_rights/

    Quote from article:
    “Central to this flexible natural law theory is the importance of kin attachments and kin altruism to the strength of families. Kin altruism refers to the attachments and investments that biologically related family members have to each other by virtue of their shared biological inheritance. Rightly understood, however, kin altruism is a finite, in contrast to an ultimate, good. By this distinction, I am suggesting that kin altruism is not the measure of all goods for families but rather a highly central good to be enhanced by law, culture, and religion, and to be balanced with other goods.”

    • I’m always a tad wary of the invocation of natural law, as I am wary of the invocation of nature. (You can check the tag “nature” to see instances of the latter.) I realize it is a huge topic, but how exactly do we know what natural law is? Where does it come from? Sometimes natural law is linked to socio-biology. But while there is a lot of fascinating work in socio-biology out there, it points in many different directions. Similarly, history shows us many different configurations of family, as does anthropology.

      I have no doubt that we ought to encourage support networks for families and that often kin play key roles in support networks. But kin are not always genetically defined. Should we encourage those within support networks to diminish their support because because they are not genetically related? That would seem counter-productive to me.

  4. “Should we encourage those within support networks to diminish their support because because they are not genetically related? That would seem counter-productive to me.”

    Absolutely not. I would never support or suggest that. Ever. Family is absolutely not JUST about genetics but I do firmly believe that law and society should encourage men/women/adults to take responsibility for their own sperm/egg when combined to create a new out of the womb life.

    I am concerned that the focus on sexuality/alternative family building and the rights of adults to reproduce (heterosexual/infertile couples, homosexual/socially infertile couples or single/infertile/socially infertile) takes away from the human rights and deeply personal (identity/genetic connection/extended genetic family/kin) needs of the children (who quickly grow to be adults with families of their own), within whatever family formation they belong to.

    I strongly feel that a child’s/person’s basic human right to know, be known, love and be loved by all the people they come from and belong to (social and genetic) is being overshadowed/lost in the debate. The problem that I and many others have with donor/vendor assisted reproduction is that it involves socially condoned, institutionalized, commodified and intentional separation of children (who quickly grow to be adults with families of their own) from one or both sides of their ancestral connections (extended family) and identity that roots them within the context of our larger human family tree.

    This is not so much a matter of law, which really cannot regulate these things – rather greater consciousness/awareness building which can help in these areas – but the law can/should and desperately needs to regulate the sperm/egg/surrogacy industry and anonymity must stop. This industry is creating a form of genetic reductionism and which has deeply personal consequences for the offspring and society at large.

    • Perhaps we are largely in agreement?

      I’m not as concerned, I suppose about the tension you identify between the rights of adults to reproduce and the needs (or rights) of children. This might be because I do not accept that a child has a right to have the person who provides genetic material recognized as a legal parent. Thus, you could meet the needs (or recognize the rights) of the child by providing identifying information as to donors/gamete providers/surrogates(would they be in there?) while at the same time granting legal recognition to other people.

      I think perhaps this is your stance as well?
      I know that this is not acceptable to some and so then the tension is much difficult to resolve or perhaps it cannot be resolved at all.

      • Maybe we are (I hope so!) but I firmly believe that anonymity must be banned and the word “father” and “mother” need to be incorporated into these genetic parenthood relinquishments in order to prevent further genetic reductionism.

        I do not endorse the simple legal term “sperm/egg donor” (vendor) or “surrogate” as legal definitions. Instead I would recommend using a legal term such as “relinquishing genetic father/mother through pre-conception adoption” or “relinquishing gestational mother through surrogacy adoption”.

        I also highly endorse bio-ethicist, Margaret Somerville’s recommendation:

        “Children have a right to be conceived from untampered-with biological origins, a right to be conceived from a natural sperm from one identified, living, adult man and a natural ovum from one identified, living, adult woman. Society should not be complicit in – that is, should not approve or fund – any procedure for the creation of a child, unless the procedure is consistent with the child’s right to a natural biological heritage.”

        see: http://donorsiblingregistry.com/burger.pdf

        …and yes, unfortunately I do think that some of these tensions will perhaps be unresolvable…

  5. I agree that deliberate obfuscation is the culprit in equating genetic and non-genetic parents. Maybe we should revert back to using parents only for genetic parents and guardian for everyone else. To pretend that a genetic and non-genetic parent is the same or could be the same is just pure fantasy based on an attempt to fulfill the desires of adults and take away from those that should feel guilty the fact that they have commodified a child’s life.

    • I agree that we need to distinguish between those who provide genetic material for the creation of the child and those who perform the social function of parents. Purely as a matter of language, I’d rather call the people who are actually performing the role of parents “parents” and use a different label for the genetic forebears.

      But I’m most concerned about who has the legal rights that we currently allocate to parents. I’d have them go to the socially performing people. You cannot effectively perform the role without being able to do things like consent to medical care or make decisions about schooling.

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