Must Parental Rights Accompany An Obligation To Pay Child Support?

The last couple of posts have (tangentially) raised this question:  If a person isn’t a parent (legally) of a child, can that person still be obligated to pay to support that child?   Put the other way around, do the obligation of support and the privilege of parental rights go hand in hand, so that if you impose one you must give the other? 

I think for many people the initial answer here is “yes.”   It seems unfair to many people to impose the obligations without offering the corresponding rights.   But I’d like to push everyone to think a bit harder about this. 

Actually, first I’d like to digress to a utopian fantasy.    I think a lot of current family policy, to the extent we can be said to have coherent family policy in the US (and this is a whole other question) is driven by the need to find a source of financial support for children.   Certainly much of the federal welfare policy that promoted easy recognition of fathers (through the execution of a voluntary affidavit of paternity, also called a VAP) was premised on the idea that single mothers and their children were left dependant on state aid and that instead fathers should be identified and then obliged to support their dependants.  

The utopian vision part is that maybe sometime, somewhere, society will take a larger role in supporting people who are doing the serious work of rearing children.  Many places are way ahead of the US in this regard–they allow substantial parental leave–paid parental leave–to take care of a newborn, say.   The idea here is that everyone will benefit from the productive worker when they grow up so we all have an interest in ensuring they do so in a way that will allow them to become productive, etc.  

But I concede this is utopian and wildly impractical, particularly now in an age of economic hardship.    For the time being children in the US will be primarily rely on private support.  

So for me, the next basis should probably be on what basis should the obligation to support a child be imposed?   And is that the same basis on which parental rights should be awarded?  If the answer to the second question is yes, then parental rights and the obligation of support go hand in hand.  One implies the other.  

I’m going to assume for the moment that there has been ample discussion here of the basis on which parental rights should be awarded.  I don’t mean that I think that is over and done with–just that I won’t repeat it here.  Anyone who is interested can poke around on the blog–it’s really the central recurring topic, I’m just going to generalize here. 

In a nutshell, I’m inclined to award parental rights based on performance.   There are lots of complicated questions that I haven’t really resolved, but you’ll get a better idea by looking at the tags labelled “de facto parent” or “functional parent.”    This means that, among other things, I reject genetic linkage as the defining criteria for parenthood–a point many disagree with.  

So from time to time, the question of support arises.  Where a man engages in intercourse as a result of which a woman becomes pregnant, should he bear some support obligation if she decides to give birth to and then raise the child? 

I think the answer to this can be yes, even where I would say he is not a parent.    Monetary liability is frequently imposed on people who engage in blameworthy conduct.    If I drive carelessly and as a result tear up my neighbor’s lawn, I might have to pay to restore the lawn.   I don’t acquire any particular rights to that patch of lawn, though, even if I did pay for it to be reseeded. 

In the same way it seems to me perfectly plausible to say that a man may have an obligation to pay child support because of his conduct, even though he acquires no rights of parentage.   The critical question would be what sort of behavior on his part would trigger the obligation.   I have some thoughts about that, but not well enough developed to put right here.   Suffice it to say that the mere fact that a woman becomes pregnant and has a child might not be enough.  

The main point I want to make here is that I really don’t see why the support obligation has to be tied to parenthood.   The basis for financial responsiblity can be quite independent of the basis for parental responsibility.   I figured I’d just say this clearly and see what follows.


25 responses to “Must Parental Rights Accompany An Obligation To Pay Child Support?

  1. As a parent and grandparent, it is my opinion that child support obligations and parental rights should never go hand in hand, especially in cases of unmarried fathers.Unfortunately the Mother is the parent who has the sole responsibility of raising a child born out of marriage in 90% of cases, in some the maternal grandparents. I feel that the fathers needs to establish a right to claim the rights of parent in that he should file an acknolwedgment of paternity and form a substantial relationship with the child. Many fathers paying support have never seen their children, or want no part of parenting the child. If this is the case then by no means should an obligation to pay support be tied equally to the status of parents rights.

    • As you know, I agree. I think the question is what circumstances justify an imposition of a child support obligation and what is the extent of the support owed. I think I need to articulate some theoretical justification for the support obligation and that would then help define its scope.

    • Vivian Rodriguez

      Good job
      Part of our interest is in bringing up children who also know about responsibilities. The obligation to pay child support should stand independently of parental rights. And yes, pairing it with parental rights is the wrong pairing, the “wrong” right…the obligation to pay support is the flip side of the right to have children…

  2. Interesting thoughts, as always Julie! If you award parental rights based on performance, I am afraid many, many bio-parents would never acquire them. I am not sure what performance standards you are going to require people meet in order to be granted parental rights, but it is an interesting concept and one I entertained decades ago when I thought we should issue parental licenses. We require someone to have it to drive a car, cut my hair, run a bingo parlor but nothing for parental rights except the ability to reproduce.

    You are walking on sacred ground as that is what parental rights are viewed as and of course as you point out, with the rights comes obligations for the parent and benefits for the child (inheritance rights for one). It would be a tough sell to detach parental rights from the obligation of child support I think. A one night stand can cost a man 18 years of child support without any benefit of a relationship to the child. Parental rights and support imply a major investment into the development of another human being and while I don’t think any parent or supporter expects gratitude back, the satisfaction of being a part of the person’s life can be very important – to the child as well as the man (father).

    A woman becomes pregnant. She is automatically the mother with parental rights. Equality, it seems to me, demands the same for the man who impregnated her.

    • Let me just take the last paragraph. I generally agree that people who are similarly situated are entitled to similar treatment or you have a probability of unfairness. But where a man and a woman conceive a child via intercourse, they are not similarly situated. From the point of view of genetics they are, but I think this sells women short. The woman is embarking on pregnancy which is physically and emotionally demanding, can endanger her life and her health, and (these days) may result in her making substantial alterations to her life-style in order to facilitate birth of a healthy child. The man may be involved as a supportive partner in the enterprise, but in all fairness, can we say that his position is the same?

      And if the man and pregnant woman are not in similar situations, then we do not have need to treat them as though they were. Indeed, to treat them as though they were would be unfair, because it would overlook the difference. So, for example, the woman and not the man should have an absolute right to decide whether to continue the pregnancy.

      • “The man may be a supportive partner in the enterprise but can we say his position is the same.”

        And yet, Julie, I’ve heard you apply that criteria, to support lesbian partner’s bid for motherhood.

        • Marilynn Huff

          Yes yes you have exactly heard her say that a lesbian partner should be on equal footing as a parent but men can’t. What is that about – where is equality? Equality is equal

          • If I have said that, then I was wrong to say it. I would ay that a lesbian partner should be on an equal footing to a man in the same position. I would say that as a child ages, two lesbian partners should be on an equal footing, despite the fact that one gave birth and/or is genetically related. I would say that a male partner should be on an equal footing despite the fact that the woman gave birth and/or is genetically related.

            I don’t think I’ve been quite as inconsistent as you think and I don’t mean to be inconsistent at all. I will fix it if I have been in the past–tell me where?

            • I think that those criteria- supporting the partner and so forth- might be used as evidence of intent, in cases where courts consider intent to be the critical factor; not to mean they are necessariliy equal.

        • I know there’s some tension here, and I think that’s what the topic of the following post is. I find the supportive partner problem a difficult one, but I do recognize that whatever response I come up with has to be the same for the lesbian partner and the male partner.

          One thing that may have made this confusing is that in some places I’ve been discussing existing law (which tends to be more favorable to the heterosexual couples) and sometimes I’ve discussed my ideal version of the law. But I don’t mean to be inconsistent and will try to avoid that. Call me on it when you see it, though, just in case.

  3. At the risk of repeating myself- Child support isn’t a penalty, like a car accident. I really don’t think it should be constructed as a liability issue.

    Child support is because…. just because this is your kid. Your kid is your responsibility. Not all responsibilities exist only if freely chosen. Some are intrinsic.

  4. To answer the question you posed in this post: With parental rights comes the responsibility of supporting that child. In the vast majority of cases, the child is genetically related and therefore, parental rights are conferred automatically.

    Regarding the equality question, I do believe that the male who has parental rights has equal responsibilities and privileges for raising the child as does the mother…

    I also find it interesting that you are willing to give parental rights to someone not genetically related to the child who has invested, say six months of their time into a child’s life, and yet say the male is still unequal in terms of rights to the child who is clearly the bio-father. We will have to disagree on the point of “selling a woman short” just because a man and woman become pregnant. I fail to see your logic since the man has a responsibility to both the woman and child long after the “deed” is done. Yes, we agree that the woman carries the child to term and gives birth which is more at the onset but does that somehow negate the man’s responsibility or rights to the child? How is that fair?

    • If a man has parental rights then he should indeed have equal rights/responsibilities with any other person (let’s say a woman) who also has parental rights. If a man who is not genetically related to a child assumes the role of parent for a substantial period of time and in that manner forges a parental relationship with the child, then he should get the same rights that a lesbian partner would get. (I’m not sure if that is responsive to your point about the male being unequal in terms of rights.)

      For me the questions of how one acquires rights is critical. Frankly, it makes no sense to me that you get rights to raise a child simply because your DNA matches the child’s. Why would that be? What is the justification for that? A man can spend less than fifteen minutes with a woman he does not know, never see her, never meet the child when it is born. Why would we want to say he has parental rights, just because it is his DNA?

      • Marilynn Huff

        ok forget DNA the child would not exist were it not for the man there would be no pregnancy for the woman to hang her hat on. He jointly created the child with the woman –

        • It’s true that the child would not exist were it not for the man’s DNA. That, to my mind, isn’t enough to answer the question of whether a person is a father. You could say in ART cases that the child would not exist but for the actions of a variety of lab personnel and doctors. Are they parents? Surely not.

          Perhaps you can say that where a person causes something they are responsible for it–that’s the general idea of torts and might support imposition of some sort of financial obligation, as I suggested here. But I don’t see that it obviously follows that because you are crucial in creating a new life, you have authority over it. What is the justification behind that view?

      • marilynn huff

        Because without his 15 minutes of time there would be no pregnancy for the woman to have endured. She did not fall pregnant on her own, nor did he. I’ll exclude genetics for the moment but the male and female created offspring together – now if you say 40 weeks of pregnancy is the best basis for assigning parental rights upon birth ok, but the male who made the offspring with the woman should have at very least first right of refusal to become the other parent of that child, it is after all his offspring and the mother should not be able to block his attempts and replace him with another person that would pass your performance test, establishing themself as the parent when he never was given the chance. I know you want to sho no sympathy for that situation, because you don’t feel it will happen often enough to be a reason not to take the males rights away. Really you must aknowledge that setting a new law up that would take away fathers rights is not as good as setting up a new law that would gain equality for lesbian couples. Most lesbians would not want to form their families at the expense of anyonoe else I’m sure most would want to know that the male gave up his rights willingly – nobody wants to lock anyone out right?

    • I am in disagreenment with you Lee, the obligation to pay child support is a duty on part of the father.In many cases the biological father denys the child, refuses to be a part of the child’s life, wants no part of the child period. All of a sudden he is brought into court and DNA testing establishes him to be the bio-father and therefore he is ordered to support the child. Say the child is 5 years old, never meant the father and has no idea she/he even has a father, or finds out that she/he has two fathers. The bio-father stepping in and demanding visitation or custody is unfair to the child and disrupts the child’s otherwise stable life.
      No indeed ! A biological father needs to establish a substantial relationship with the child and sign an acknowledgment of paternity to make his relationship legal. The Mother is the parent automatically, while going through the pregnancy, birth, and rearing of the child by nature. Men can just walk away without another thought, can deny the child knowing full well he fathered it. No No No on this issue. Support obligations and Parental Rights are not tied egually hand and hand.

      • marilynn huff

        Laurie nobody else should have established themselves as the child’s father. It should be abundantly clear to the child that the other person is not her father but is her step father or her mother’s partner of some sort. If at some point the father is wrangled in to pay support by DNA evidence or if he suddenly finds out that the child exists because the truth was deliberately kept from him, he should absolutely have the right to establish a relationship with the child and so should his parents and his siblings neices and nephews. It is NEVER too late for a parent to establish a relationship with his or her children. Its horribly damaging for a child to think their own blood relative never even tried to get to know them. Its ALWAYS good for a parent to try to get involved with his or her child even if the child rejects them initially. Keep sending birthday cards keep trying to be involved. The defacto parent can mess that up if they are using the title of father and the child was not actually given up for adoption. Its better to make the situation clear to the child that their father is absent and this other person is doing what their dad should be doing.

  5. Who on this blog is suggesting that a man who has never met the child nor displayed any interest should get parental rights?

    That is the sort of guy whom I’ve described as a derelict dad.

    Since we do not reward dereliction, we should still require him to own up to his parental obligations, instead of absolving him of them. Of course, if there is someone else willing and available to take them on, we might simply allow them to do so.

    The derelict parent is the only situation in which parental rights do not go hand in hand with parental support.

    • Your reasoning suggests to me that the general rule is that parental rights go with support but that there is an exception for the derilict dad? (If I’ve misstated your point, let me know?) I guess my question is why the default rule? Would it be possible to assign some sort of financial obligation first and then consider whether also granting some authority (which is what parental rights are) would actually be in the interests of the child?

      It’s interesting that some time back on the blog we had a discussion about the role of the interests of the child. I will try and find that and link back to it at some point, but it does seem to me that if you think from the child-centered perspective than the support question and the authority/rights question might really warrant separate analysis.

      • I agree, but adults have rights too.

        Perhaps there is a neglected homeless child somewhere. Certainly it is in the best interest of that child, that I, Kisarita, an entirely unrelated adult, support it. Perhaps I even cut that child’s cord in the hosital, so am partially responsible for its existence.

        Nevertheless, I don’t foresee the government imposing that responsibility on me any time soon.
        Why? Because I am not seen as having any connection to that child, and obligation can only result from an inherent connection.

        If we view the act of sex differently that the act of cord cutting, it is because we must acknowledge that genetics does matter, that it does create some sort of innate connection.

  6. … however I do not agree with retroactively demanding support.

  7. Laurie…I have no disagreement with you on child support or the duty for it. The man must first have parental rights in order to derelict in the majority of cases. How can you be derelict if you first don’t have the responsibility? In other words, the man has to be aware that he is the father. Once aware in my mind, he becomes obligated – perhaps not legally until adjudicated the father. If the man after becoming aware does nothing, then he is derelict for not assuming his parental obligations/responsibilities. Then he could lose his parental rights.

    Once parental rights are conferred, they are not easily relinquished. Even voluntary termination of parental rights are not as easy as they may sound.

  8. Marilynn Huff

    I’ve been giving what you want some serious thought. The law, what ever it is, needs to be applied equally to all people; it can’t be one thing for one guy and then different for another.

    You would have to change the law to say that a woman who is pregnant and gives birth is the one and only parent of the child she gave birth to. There could be no other parent at the time of birth other than her, not her husband, not her boyfriend, not the genetically related one night stand and NOT HER LESBIAN PARTNER.

    At some point during the next 18 years of the child’s life, the woman who gave birth could apply to have another person share her parental responsibilities and the person she names would have to sign accepting those responsibilities. That person could be her husband her lesbian partner or whomever she wants so long as they are willing to accept the responsibility.

    Your performance test has a problem in that its impossible to tell how long is long enough. If what you really want to do is leave it up to the woman that gave birth, then leave it up to her. If the law was enacted that the woman who gave birth was the only parent, I’d feel strongly that someone else should not be able to become a “de-facto” second parent against her wishes as much as I’d feel strongly that the woman who gave birth could not make someone a “de-facto” second parent against their wishes. Freedom to choose would be essential.

    Of course I am entirely against this senario that I just presented because it would eliminate the right of all men and women to be recognized as the parents of their own offspring. Women who use gestational surrogates would have their parental rights stripped, Men of course would have their rights entirely taken away unless the woman that gave birth applied to have them added as a second parent. I further disagree because it would mean that every child born has only one parent and one source of support unless the mother names a second person and that second person agrees to be a second parent to the child. No longer would men be responsible for supporting their offspring unless the woman that gave birth wanted them to be a second parent and they also wanted to be a second parent.

    What you have had trouble with is waivering back and forth. If you say genetics is totally irrellevant then second parents must sign up for the task. You would not be able to force men to support their offspirng if genetics did not qualify them as parents, if genetics is irrellevant then those children are complete strangers to their genetic relatives and strangers owe them nothing.
    When you talked about paying for blameworthy behavior, I think what you are aiming for is some kind of damages for the mother for the pain and suffering of pregnancy rather than for the support of the child?

    I find the whole idea reprehensible as you know, but if you are going to go balls out and try to make a change, I commend that in principal and think that at the very least you need a nice clean consistent platform to stand on. You don’t want it to appear you have one rule for a men and another for women.

    • I’m in a bit of a rush with a bad connection, so I will keep this short. You are right (and this is one thing that is hard for me) about it seeming there should be only one parent at birth. Can a second person claim some performance based right because of her/his support for/involvment with the pregnancy? I’m not sure I think they can. And if this is the rule I advocate, then yes, it must be the same for all, including lesbian couples.

      You’re also right about the difficultly of knowing how long is long enough. I think it’s fair to think that standards would probably develop over time, were this a critical matter. If you have a simple procedure for a second parent adoption (which many places do) that it could be fairly easy for an amicable couple to ensure legal parenthood for both in short-order after birth. But you’d need to have some set of rules for those who didn’t proceed via second-parent adoption, because there will always be people in that category.

      I’m not sure I like this, but it does seem to me to be the logical extension of what I’ve said. And I do mean to be consistent.

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