There’s a recent case from North Dakota that illustrates some important points about the power of recognition as a legal parent. At the same time, it also represents a less-common approach to the rights of third-parties. Please note that it does not directly raise the issues about defining natural parents that I’ve been talking about, so I hope I don’t confuse things by discussing it now.
Some time in 2001 or 2002 Robin McAllister conceived a child with Michael Tharaldson. While she was pregnant she moved out of Tharaldson’s home. She met Mark McAllister and moved in with him. The child, EM, was born in 2002. Robin and Mark raised him together. They married in 2004 and had two children together before Robin left Mark in 2008. When she left she took EM with her but left the two younger children behind. Robin and EM moved in with another man, Jason Prosje.
Robin and Mark McAllister got divorced. They agreed on most things. Mark got primary custody of the two younger children. The one outstanding issue was the custody/visitation regarding EM. Mark wanted decision-making authority and primary residential responsiblity for EM. Robin wanted him to have no court-ordained role in the child’s life.
It’s clear that Robin McAllister is a parent of EM–she is a natural parent. Tharaldson’s paternity had been established in 2o03 and he was also recognized as a parent, and for what it is worth, a natural parent I’d guess. He’d paid court-ordered support. He had been awarded some time with EM, which he exercised until EM was 2 and then again after the McAllister’s separated. I do not know how much.
With two legally recognized parents already, the court is not willing to find a third parent. At the same time, the lower court determined that Mark was a psychological parent to EM. As is often the case, the assessment of a custody evaluator seems to have carried significant weight. In the end, the trial court concluded:
“A person who provides a child’s daily care and who, thereby, develops a close bond and personal relationship with the child becomes the psychological parent of what [sic] child to whom the child turns to for love, guidance, and security. Here, Mark, on a day to day basis from the time of [E.M.]’s birth through March 6, 2008, and again through regular visitation, has been that person to [E.M.]. Mark has fulfilled [E.M.]’s psychological needs for a parent as well as [E.M.]’s physical needs. . . .
As a psychological parent, Mark should be granted liberal visitation rights. This visitation will not only further the bond between Mark and [E.M.], but also foster the bond between the three young brothers, the youngest two whom reside with Mark.”
Mark ends up in a strange role here–he is not a legal parent, but he is a psychological parent. This seems to put him into an unusual middle category: He is entitled to the visitation rights we would often expect post-divorce–every other weekend, one night during the week and two weeks in summer. He does not have decision-making authority, but he does have a right to be informed about the child’s progress in life and be included in events like school conferences.
Most states wouldn’t recognize this sort of middle ground. I’ve written before–long ago, I think and perhaps in a slightly muddled way–that legal parental status is generally an all or nothing thing. If you are a parent, you get all rights and responsibilities, including the right to decide who the child spends time with. If you are not a parent you get no rights and responsibilities and see the child only at the whim of the parent(s). That is what makes recognition as a legal parent so very critical.
With that in mind, it is useful to have an illustration of a middle-ground sort of approach. That’s what I think this North Dakota case offers. It’s always good to have a concrete example in mind as one thinks about whether a particular approach is good or bad, though of course one example isn’t enough to go on really.
There’s one other point about the North Dakota case worthy of note–one that illustrates some of the potential problems of an approach like that adopted in the case. At the end of the day, three different adult households are entitled to time with EM–Robin McAllister’s, Mark McAllister’s and Michael Tharaldson. It doesn’t seem to me to be impossible that they could arrive at an arrangement that is good for EM, but it surely will require the willing cooperation of all the adults involved. Of course it would be easier to eliminate one household–but in all likelihood that would be Mark McAllister’s, and as the court makes clear, it doesn’t see this option as being good for the child. Be interesting to know how it goes from here.