Just before Memorial Day I threw up a quick post about a really interesting recent decision from Kentucky. In a close decision the Kentucky Supreme Court ruled that a man genetically related to a child could assert parentage of that child over the objections of the child’s mother and her husband.
I’ve gone back to read the opinion more carefully and it’s quite interesting, so I wanted to give it a little further consideration. (You can go back to the earlier post for some of the context of the opinion.) The majority opinion is by Justice Venters and he makes an interesting point along the way to his conclusion.
He starts by asserting that the stigma around being illegitimate has diminished over the past hundred years or so. This is undoubtedly true and I cannot see this as anything other than a good thing. Afflicting children with the label “bastard” (for more, see Dorothy Allison’s wrenching book, Bastard Out of Carolina) is completely unfair when the children have nothing to do with the circumstances of their conception.
In any event, whether it’s for good or for ill, some would say that this shift towards equal treatment of children regardless of the circumstances of their conception is one of the most important legal developments in US family law in the last half of the twentieth century. (I was a participant in a conference on this topic this past spring and it did make me think quite a lot about this.)
Justice Venter considers what the shift in status of illegitimate children means for the marital presumption. One way to understand what the marital presumption does is to think about illegitimacy. Because of the marital presumption (the presumption that a child born to a married woman is the child of the husband) there are fewer illegitimate children. With the presumption in place, all children born to married women are presumed to be legitimate.
That’s in important justification of the presumption, particularly when illegitimacy is stigmatized. The presumption counters the stigma by removing kids from the stigmatized class. But as the stigma diminishes, the strength of this justification diminishes. Justice Venter concludes that
The stigma of being an ‘illegitimate’ child or the parent of an ‘illegitimate child is, within the greater part of society, gone.
Without the stigma, he finds justification for the marital presumption lacking. (A major portion of the opinion is devoted to statutory interpretation of specific language in the Kentucky Code. I’m going to breeze over that in favor of the broad policy discussions.)
I’m not sure I agree with Justice Venter that the stigma associated with illegitimacy is gone, but it is certainly diminished, and while I hadn’t thought about it quite this way before, that does diminish at least one argument in favor of the marital presumption.
The other thing I find most interesting here is the nature of the opposition to Justice Venter’s view. That’s most readily seen in the local press coverage of the case. The opposition arises from those most committed to the centrality of marriage. Allowing the genetically related man to defeat the united claim of husband and wife diminishes the importance of marriage. What’s important from this point of view is that the husband and wife, whatever their difficulty in the past, now stand united and wish to raise this child within their marital family. Were it enforce, the marital presumption would allow them to do just that. The majority’s opinion, which allows the genetically related man to claim parentage, overrides their wishes.
To reduce this to some rather simplistic political terms, the conservative, traditional marriage view is in opposition to the DNA matters view. I think that’s rather striking and was to me less than obvious before this case got me thinking.
It’s also notable that there’s very little–perhaps no–attention to the perspective of the child or to the realities of the situation that the court is creating. What happens to the people involved in the future? Does the child reside with wife, and hence end up being raised primarily by the husband and wife, with visitation by the legal father, who is hardly likely to be welcomed into the household? Does the marriage fracture as a result of the constant reminder posted by the legal father? \
I don’t say this to suggest that these are the considerations that should have dictated the outcome of the case. But I do wonder and I wonder, too, about whether this sort of wondering should have any bearing on the outcome of the legal inquiry at issue here. Keep in mind that this is the Kentucky Supreme Court, so this rule applies to all cases brought in Kentucky in the future. That means that what is at stake is not just one family but many. This further complicates the prospects of thinking about the specifics of the people involved.
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Being a parent is an interesting dilemma; they’re yours, but only to raise and teach, not to control. That’s very, very hard for some of us. It takes real effort to teach your child to make decisions on their own behalf, decisions that you’d be proud of, decisions based upon all possible information, not just the information that we’d prefer them to have.
I don’t understand how this decision undermines the institution of marriage. A husband who is willing to forgive the wife’s infidelity and is willing to help her raise another man’s child should not have to necessarily sign up to bear the full financial burden of another man’s child just because he wishes to remain married to his wife. The child deserves to be supported by his mother and his father. If his mother and father are not married to each other, but are married to other people the child benefits financially from whatever the spouses bring to those marriages respectively. The child can have a wonderful bonded relationship with his stepfather without having to sacrifice a relationship and support from his father. It seems to me that the only ones that benefit from excluding the father from the child’s life is the mother and her husband who wish to live a lie and orchestrate reality for the child. Their decision to exclude the child’s father is unnecessary when they could simply all agree to get along for the benefit of the child.
There is no need to exclude a child’s parent and by that I mean biological, from the child’s life. Require that person to support the life they brought into the world and if they fail to rise to the occasion, so be it. The child will interpret that abandonment of its own merit and not blame one parent for blocking the other parent’s participation. The surest way for the mother to alienate her child’s affection is for the child to think that his father wanted to be there for him but she would not allow it. They will not seem like loving parents to him then. Better that she leave the door open always and encourage contact and responsibility on the part of the man who she made the child with, if he fails he fails on his own without her meddling hand. Allow the child to grow to love her husband on his own without being told he is his father when he’s not when his own father is clamoring for a chance to be near his son.
Marriages are not strong because of love for children they have to be strong because of love for each other. That is how I see it anyway. Its not easy and I’m certainly no good at it myself. My daughter asks all the time if I get remarried she’ll have another father and I say absolutely not people get one mother and one father and that’s it. Her father is her father and nobody will ever replace him. I don’t think I would remarry just so that she never confuses that. So that I don’t confuse her with that. Heck I don’t even think I’ll get divorced because of it. I’m staying together for the kids as it were despite being apart. I wish I had a play book, but I probably would not follow the directions anyway.
I applaud this court for coming to this decision there is no such thing as an illegitimate child. A decision like this says that men must take care of the children they create and father’s like him – well she should be grateful to God her child has a father like that. Embrace his loyalty to their child, she’ll be a good mother when she does that until then she’s just a good wife that’s overlooking her child.
Here’s what I was thinking about how it diminishes the importance of marriage. In the stronger version of the marital presumption, the united husband and wife can, if they wish, claim the child as their own and exclude all others. (There’s that California case I blogged about a while ago where they did just this.) Remember that this is where the husband/wife want to assume all the support obligations. They want to establish a conventional marital family, and with the strong version of the presumption they can do that. The married man has choices that the unmarried man does not.
The Kentucky court says that they cannot do that. The man who is genetically linked to the child is enitled to claim parentage over the objections of the husband and wife. Chances are that the husband will not be recognized as a legal father. The power of the married couple is diminished as the power of the other man is increased.
Note that this is one of those cases where too many men want to be parents. It will look different in the instance where the husband doesn’t wish to claim the child. Under many versions of the presumption he can invoke DNA to deny parentage if he wanted to, but claim it if he wanted to. That made marriage advantageous.
Most of the families I help reunite are people who were stepped on like this kid – not people who were adopted. This kind of thing where the mother decides to rewrite history – even to the point of falsifying birth certificates. Which is the very reason I started doing research on this topic and reading your blog – because I could not understand how the law could not only allow these women to get away with it but frequently supported the practice. I’ve done some searching and contacting for people that refer to themselves as “donor conceived” and I tell them they are not “donor conceived”. Lots of women have babies with guys they don’t know and then decide not to name them on the birth certificate, or decide to name their husbands on the certificate instead, its no different. The kids are raised by their stepfathers and their relationship with their father’s gets stepped on by their step family. Its always hard though, they have real loyalty to their step fathers, they love them. That’s ok, that’s very real. They don’t love their fathers that’s very real too. I know you disagree with that terminology – but I am using those as the technical terms the biological terminology of the players in human reproduction, mother father child. Their stepfathers of course are their legal and social fathers, absence of paternity has no effect on that.