Just a short and somewhat random thought today. May recent items (some discussed here, here and here) suggest that (at least in my view) there are two distinct types of relationships between adults and children that might be worthy of recognition/protection.
One is the genetic relationship that exists between two adults and each of us. It is grounded in DNA and is eternal and unchanging. The second is a psychological/social/emotional relationship that may exist between the child and one, two or more adults. These relationships are necessarily eternal or unchanging. Sometimes the same two people can claim both relationships, but this is not always the case–not by a long shot, I suspect.
Now it might well be that each category of relationship is worthy of some form of recognition and protection. But though the to sorts of relationships can, as I noted, co-occur, they are really quite different in nature. Thus the legal structures by which we might recognize and protect them probably also should be quite different.
Of course, this isn’t the way law works today. There is but a single category–that of legal parent. And the legal parent gets all the rights and obligations. In order to protect parental rights (which are lodged with legal parents) everyone who is not a legal parent gets pretty much nothing. This means that in instances where there are different people occupying the two categories discussed above, they end up pitted against each other. Is this really necessary?
I’m increasingly drawn to a dual track system–one that recognizes the two different categories of relationships noted above and treats them differently. It’s not going to be hard to establish who the DNA folks are (which is not to say that it is going to be easy to locate them–just that once you locate a candidate you can tell easily and certainly whether they are in or out.) It’s hard to see that elaborate legal proceedings would be necessary, or if they were, it would be very infrequently.
By contrast, it may be much more complicated to determine the psychological/social/emotional people. This probably suggests and entirely different set of procedures from those used for the DNA folks.
More controversially (I’m guessing) I’d want different consequences to flow from recognition as someone who is one or the other category. Because disruption of the psychological/social/emotional relationship would harm the child, these relationships, once recognized, need to be protected. There isn’t necessarily any social relationship between the child and the DNA people, so I don’t think I’d take the same approach. You might instead recognize the child’s entitlement to information and perhaps some form of access, but this could take many shapes.
I think there are many places that I’ve suggested something akin to this in the past, but it’s all seeming a bit clearer to me just now–what I think is, I mean. So for whatever it is worth, there you are.