This story in the paper caught my eye this AM. It’s generated by an analysis of 2008 census data. The key finding is that 28% of the unmarried women who give birth are living with a partner.
This suggests that at least some–and perhaps many–of those women are not single parents, even though they are unmarried women who gave birth. I realize that not every partner is a co-parent. But surely some partners are co-parents. What I mean by that is that at least in some instances the partners function as a second parent to the child. Which leads me to conclude that all those unmarried mothers are what we think of as single mothers. Indeed, the article notes that over time those two categories– “unmarried mother” and “single mother”–have often been conflated. That blurring doesn’t really enhance our understanding of what’s going on in the real world.
There are several different things to think about here. Some of the unmarried mother couples are lesbian couples. Unless they lived in a small number of states where marriage between two people of the same sex is permitted, those couples couldn’t be married now matter how much they might wish to be. Additionally, unmarried couples, lesbian or otherwise, may have formally secured the rights of the partner coparent through a second-parent adoption and, as far as I can tell, they would still show up as an “unmarried mother” family.
What concerns me is that it seems to me inevitable that there will be a significant number of instances where there there are, as a matter of fact, two parents but no formal legal steps have been taken to secure the rights of the partner/coparent.
The trouble is that one of our primary tools for assigning legal parenthood is to tie it to marriage: The spouse of a woman who gives birth is presumed to be a legal parent. That device won’t do anything in the case of unmarried couples.
There are, however, a number of other doctrines that might assign parenthood in cases of unmarried coparents. Perhaps most promising is what is called the holding out doctrine. This doctrine provides (with state-to-state variations) that a person (historically a man, but in some instances now gender neutral) takes a child into his/her home and presents the child to the world as a his/her child, the person is can be recognized as the legal parent of the child. It is akin to the de facto doctrine I’ve discussed before, but less complicated.
Holding out tests usually specify a period of time that the child has to be held out, and the most common period is, I think, two years. That raises the spectre of cases where there might have been holding out for one year and eleven months before the status issue becomes critical, but you will see that happen any time you have a bright-line rule.
I worry about instances where there is a person who functions in fact as a co-parent but who has no legal rights. It’s like an accident waiting to happen–there is no legal protection for the parent/child relationship between the unmarried co-parent and the child.
I know, too, that there is an obvious answer for those who would tie biology to parenthood there is an obvious answer–find the man whose sperm created the child and you have your second parent. But I don’t actually think solves the problem. If that man is the partner/coparent, then any solution that recognizes the partner/coparent will recognize him.
Consider, however, the cases where he is not the partner/coparent and instead someone else is. I want the law to protect that person’s existing parental relationship with the child. I’m not looking to break up the partner/coparent relationship and reassign rights. I don’t think that serves the well-being of the kids involved. I’m looking for a way to protect the real families in which these kids are growing up. The census figures suggest that there could be a lot of them out there.