I’ve been pondering a recent CA decision (not really that recent, but never mind) in some recent posts. Here’s one way of thinking about the case.
There’s some well-established law you will find in many (but not all) states. When we are looking to find a father for a child who will otherwise be fatherless, we don’t set the bar for what qualifies a man as a legal parent terribly high. It doesn’t take that much to hold a child out as one’s one–you must receive the child into your home and present her/him as your own child. It has nothing to do with biology or genetic relationship.
Charisma, as well as other women and on occasion the state of California, have argued that there is no justification for treating women differently from men in this setting. That’s a simple and strong argument. I certainly cannot think of a basis on which you can provide this legal avenue only for men.
So if a man in that position is presumed to be a parent, so a woman must be presumed to be a parent. And just as you can justify the result for a man as a way to provide two parents for a child, so you can justify the result for a woman.
To me the real question to examine isn’t should we treat men and women similarly. It’s whether we have set the bar too low for men and women. Should more be required before one is entitled to claim parental rights?
One thing to note in considering this question—this test is generally relevant in instances where (in the view of society generally, I suppose) there are too few people claiming parental rights to begin with. It’s a last resort to enable us to avoid creating fatherless or, more generally, single parent, families. And the reason the bar is set so low is to make it easy to find a second parent in those cases where the alternative is a single parent.
So perhaps, we need to think about the alternative to a very low bar. If we make it harder to claim (or be assigned) parental rights under this approach, fewer children will have gain a second parent this way. Surely what we need to think about is whether this would be a good thing or a bad thing.
Of course, one reason for the state’s eagerness to find that second parent (and in the classic situation, a father) is to find someone who can be required to support the child. Indeed, that is why the state sometimes pursues these cases even where the individuals involved are not interested in doing so.
And though the bar is set low, the standard is not unrelated to the well-being of the child. The person who gains parentage through this test will always be someone who has a relationship with the child, who has in some real and tangible way, embraced the child.
That said, I see two potential sources of concern. First, there will be cases where the first parent does not want a second parent involved. (Charisma is one.) Whatever test we use, it must be one that allows the first parent to maintain her or his autonomy as a single parent if she or he consistently seeks to do that. So as a general matter I’d be a bit wary about imposing a second parent on an unwilling first parent. (That said, I think Charisma got it right. It appears from the record that there was a shared intent to co-parent rather than a consistent intent to single-parent.)
Second, I might want to entertain some additional considerations if you had a case with too many, as opposed to too few, potential parents. (This ought to be reassuring to those of you who would prefer a biologically related person to a holding-out person, though that isn’t the criteria I myself would use.) I suppose what this means is that in a grand hierarchy of parenthood, I’m not quite sure where I’d place holding out.