There’s a stunning essay on the NYT blog Motherlode today. Oh, the messiness of families and family law.
Sara Brown is married. She and her husband have two children, a 2-year-old and a nine-month old. But her husband also has a ten-year old son, a son born to a woman with whom he had what sounds like a fairly insubstantial relationship. That relationship ended before the pregnancy did. (While it may not have been a one-night-stand, I’m not clear how much more than that it was.)
The ten-year old lives on the other coast with his mother and step-father (who he calls “Dad”) and Sara Brown’s husband’s role in his life is limited. He writes child-support checks and sees the child from time to time. But the circumstances do not suggest these visits are occasions of unalloyed joy for any of the participants. The boy’s status as son to her husband is a family secret. He is not generally introduced as the father’s son. And, for now at least, he is not a brother to his father’s younger children.
Sara Brown’s husband’s status as a father depends primarily (as far as I can tell) on the fact that the pregnancy resulted from intercourse with him. He’s genetically related to the boy and he isn’t a sperm donor in any sense the law recognizes. So he must be the father.
But he’s hardly a social father to the child. He’s never played that role in the child’s life. And his status as legal father may only be making the boy’s life more difficult.
I don’t mean to excuse the husband from some responsiblity for the child. But I wonder if he’d be better able to meet those responsibilities if he were not burdened with the status of legal father.
Of course, it’s within the power of those involved to change all this. He could agree to let the step-father adopt the child and then the step-father would be both social and legal father. He’d still be a person with an interest in the child. He’d still have to figure out how to explain the child to his new family and friends. But the child’s reality and the law would be in harmony. Sad to say, I’d guess that this hasn’t happened because of those child-support checks. If he were no longer the legal father, he wouldn’t have to pay child support.
It’s useful to me to try to separate out the different questions. Should he be the legal father of this child? I think at this point, he probably should not be.
Should he have to pay support for the child? That requires thinking about what the basis for the support obligation is. If there is a support obligation it might arise from his complicity in the creation of this particular child. That’s a past fact unrelated to his continuing status as legal parent. (And I’m not saying how I’d come out on that, only that it could be seen as a separate question.) So maybe he owes support and maybe he doesn’t, but couldn’t that be an independent question?
Should he have some set of defined legal obligations/rights with regard to the child? Perhaps he should. Maybe not parental rights, but some lesser rights to some sort of contact with the child, without the control that goes with parental status. Or an obligation to make himself available to the child if/when the child wants contact with him?
Sara Brown says she doesn’t feel like a step-mother to the child, and it’s easy to see why. A step-mother is parent via her spouse, the child’s father. Since her spouse hardly seems like a real father, how could she feel like a step-mother. And this carries through to the younger children. They have a common experience of their father, while this boy has no such experience. Again, I’m not saying that he wouldn’t be an important person for them to know and to know about, but he’s not their brother in a social sense and insisting that they view him as such may only make the relationship more fraught.
I don’t pretend to have any brilliant solutions here. But I’m convinced that we ought to try to find ways that the law can be part of the solution rather than part of the problem.