Unmarried Mothers and Single Parents

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.

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12 responses to “Unmarried Mothers and Single Parents

  1. Maybe boyfriends, girlfriends, housemates, spouses should have the right to petition for guardianship of children that they’ve helped raise in the event that their partner dies or is somehow incapacitated but they should never be granted parental rights equal to that of the parent while the parent is still alive. Can you imagine breaking up with someone that you and your child lived with for five or six years and having that person claim that they became a functional parent and have a right to visitation or a right to make decisions about where the kid goes to school or about their medical care? Julie you have mentioned before that parents who are not together have a certain amount of control over the other parent, where they can live etc. Can you imagine inadvertently falling into a situation where someone thinks they have that control just because they lived with you and your kid for a period of time? A sensitive parent would consider the child’s feelings of course and if the child wanted to see the x from time to time they could allow it, but the law should really not force that on a parent.

    • There are many different situations to imagine. You’ve laid out one. Suppose instead a woman has a one night stand with a man. She becomes pregnant. While she is pregnant she meets and falls in love with another man. The man is fully aware that she is pregnant before they get together. But they decide to raise the child together and they do so for some time.

      There are a number of reasons why we might care about the legal status of the male partner. One of the members of the couple might die and we’d care about continuing custody of the child and perhaps survivor benefits from social security or something like that. Or they could split up.

      I think that when a legal parent (and the woman is clearly a legal parent) invites someone in like this and allows that person to play a parental role in her child’s life she has implicitly (if not explicitly) agreed to give up some of her exclusive control. She is under no obligation to do this, of course, but once it is done it is done. (I think this because her actions create a new reality for the child and I think the child has to be able to rely on that.) Thus, I’d suggest that parents think long and hard before agreeing to coparent.

      • I would suggest that their must be a formal, legal process in order for the parental status to take place.
        If the parties can prove by other means that parental status was clearly intended, and they can prove that they were unaware of the law or otherwise unable to carry it out, there might be room to consider it AS IF a legal process had taken place.

        Of course, in the case of the marital presumption, it would work the opposite way. If the parties can prove that they were unaware of the law that designated the new husband as the father, then perhaps there would be room to annul the presumption.

        • I can see the appeal for formal legal process of some sort. But any time you require formal legal procedures (for anything–not just parenthood) you’ll run into problems. There will always be instances where people behave just as you would want them to if they’d done those formal legal process, except that they haven’t done it. Thus, you’ll have kids that are being raised in what appear to be stable two-parent families–but because they haven’t done whatever it is they were supposed to, both people aren’t parents–only one of them is. That means the kids in these households are quite vulnerable, because the law will be blind to the reality of their lives, looking only to whether proper procedures were followed.

          This really is a pervasive problem in law. For instance, when people get married they end up with a whole slew of mutual rigthts/obligations. What if two people live together and behave just as if they were married, but the neglect to get married. Should one die, the other wont’ take by intestacy or won’t be entitled to a pension or whatever. Some states develop some sort of functional response–sometimes common law marriage or Washington has a doctrine of committed intimate relationships. Other places will just say it is hard luck–you should have gotten married.

          You’ll see the same thing with parenthood, the only difference being there’s a third party–the child–in the picture.

  2. Social Services and the court would recognise them as Kinship relative, they do not have to have a biological relationship only a relationship. The non-parent would have to either apply for guardianship or adoption but the courts would give them priority over any foster-to-adopt family because they have the relationship. You see it happening in foster-care when a parents righs are terminated

    • First, I’m afraid that the answer is that they might and they might not. I’m not sure they are legally obliged to do so. Beyond that, there are scenarios in which the second person ought to be a full parent with the rights that go with that status, not merely a guardian.

  3. That statistic actually surprises me in that it’s so low. I would have estimated that a much higher percentage of single mothers, at the time that they give birth are actually in cohabiting relationships with their child’s father (legal AND biological).

    How long that lasts is a different story.

  4. question – what is the common understanding of the term single parent? If a child’s parent’s were married and then divorced, then the term single parent’s might fit. Same as if both of the parents never married. I was thinking of myself as a single mother recently because I don’t live with my spouse anymore – but I guess, I guess I’m not a single mom although that’s how I’ll file my taxes this year. I would think an unmarried woman raising her child in the same house as her boyfriend or girlfriend would still be considered a single mom, but I guess if she was remarried I would not, so that might not be fair to gays/lesbians who may want to marry but can’t – although I’d still say that only elevates the partner to step parent and thats where they need to stay – what little rights they have should end when the relationship ends (unless the parent dies then they should be considered a good choice for legal guardian)

  5. I’m dismissed as a single parent even though I’ve felt I am one since my divorce from my son’ father. I am remarried, my husband is considered my son’s step father, but he doesn’t parent my son. My son still lives with me.

    • There does seem to be a great deal of fuzziness about what a single parent is. It’s possible for a child to have two legal parents but one may have little or not contact with the child. In such a case, the one functional legal parent might be seen to be a single parent as they are actually acting that way even though in some technical way they are not.

      You can also think of a range of situations where a person who is legally a single parent (sole person with parental rights) lives with another person. That second person could be anything from a roommate to a partner, but that only describes the relationship between the adults. I’d say the relationship with the adults does not/should not define the relationship with the child. So you’d have a range of possibilities, from where the second adult in the household could have no responsibility to/for the child to where the second person really functions as a co-parent. I don’t think there’s much chance the census would pick up on these distinctions.

      Perhaps it is important to consider why, in any given situation, it matters whether we call a person a single parent. So for example, if you were thinking about a second-parent adoption, you might focus on the legal status of other adults vis-a-vis the child. If instead you were thinking about organizing a social support network for single parents, you might not be so law-focused.

      All of which is to say this raises important questions.

  6. Oh I thought you could have 50/50 custody and be a single parent because your each single while remaining a parent. Not like woe is me I’m all alone in this. Of course the kid has two parent’s that won’t change even if the parents are single and not married.

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