Father if Married, Married if Male?

I thought I’d discuss a case recently highlighted in Professor Art Leonard’s blog.   To my mind, this case illustrates the peculiarity of having status as a parent turn on the existence of a formal legal relationship between two adults.   I cannot gain access to the full opinion (you need a subscription service) so I’ll go with the facts as Professor Leonard recites them.

KB was born female but began living as a male as a teenager.  He began living with JR, who is female, in 1998, which is the same year that he legally changed his name.   JR was aware that KB had been born female.

After KB changed his name, he and JR obtained a marriage license and were married.   I assume this was in New York and New York does not currently permit (nor did it then permit) two women to marry.  Because KB was still legally a woman (even though he had changed his name), KB and JR’s marriage was likely not permissible.   However, it appears no one paid any attention to this little detail at the time.   (The issues surrounding marital status of transgender people are numerous and really beyond the scope of this blog.)

Four years later, KB and JR decided to have a child together.    JR became pregnant via assisted insemination.  KB signed a consent form, as is required of a spouse of a married woman using donor insemination.   A child, KB Jr., was born in 2002.  KB was named as the father on the birth certificate.

For the first six months of KB Jr’s life, JR stayed home and KB supported the family.  After that, JR returned to work and KB became the primary caregiver.

In the middle of 2006 KB and JR broke up.  JR left, leaving KB Jr with KB.  It seems that KB Jr has primarily lived with KB since then.

In 2007 both parties filed for custody of KB Jr.      In the course of contentious proceedings, JR challenged KB’s status as a paren:  KB’s claim to parentage arose because of KB’s marriage to JR, and if the marriage was invalid (because it was between two people both legally female) then KB could not be a parent.

I encourage you to go and read the account of the facts at Professor Leonard’s blog.  It seems fairly clear to me that the child is far better off with KB than with JR.  The trial court manages to find some extraordinary circumstances that allow it to circumvent standard NY law.   That’s critical because it is likely that under routine application of NY law, KB is not a parent of KB Jr because KB was not properly married to KB Jr’s mother (JR) when KB Jr was born.

I think it is ridiculous that KB’s status as a parent to KB Jr. turns on the validity of the marriage to JR.   And perhaps this exposes the oddity of the general presumption that when a married woman gives birth to a child, her spouse is a parent.   Perhaps once this reflected an optimistic assumption about the genetic lineage of the child.   In more recent times it may reflect the idea that a married couple that has a child is generally doing so as some sort of joint enterprise, which makes giving both of the parties legal status seem reasonable.

Indeed, you could consider this case somewhat analogous to the Oregon case I blogged about several months ago–one where a lesbian mother’s partner was deemed to be a parent because she had consented to the initial insemination and it would be unfair to treat her differently than you would treat a spouse.   Or you could consider under the DC statute that took effect shortly after the Oregon case, which is more explicitly focused on the joint enterprise theory.   Or you could consider it under my personal favorite, the de facto/functional parent approach.  Any of these seem to me to be better than a formalistic approach that simply checks the validity of the marriage to assess parenthood.

It would be easy to say that we should discard the association of parenthood with marriage.   The thing is, I suspect a majority of the fathers in the US owe their status to this legal rule.   Genetic testing is not ordinarily done at birth.   No one inquires into the joint enterprise in the case of ordinary conception.   It’s worth thinking about, but it might be easier said than done.


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