Defining Who Is A Parent Under the Constitution

I know there are many comments waiting for me at the last posting, but I want to press on here first.   In some of my earlier replies I wrote about a topic that has interested me for years.  this is a good moment to elevate its status.  It deserves a post of its own.  You will all have to forgive me for lapsing into serious law professor mode.

It is generally agreed that if you are a parent then you have parental rights and the state cannot terminate or infringe on those rights without 1) proper process (typically notice and a hearing of some sort), and 2) a really good justification for the state’s action.    It’s also generally (but not universally) agreed that parental rights are entitled to protection under the United States Constitution.

This means a tremendous amount turns on that first question:  Are you a parent?   In the context of con law the question could be more fully stated as “Are you a parent for purposes of the United States Constitution?”   The United States Constitution doesn’t include any particular definition of “parent” in its text so figuring out what the constitutional meaning of the word “parent” is can be rather a project.

Before I get to that, though, it’s important here to understand the interplay between state law and the constitution.   I think everyone agrees that the initial task of defining who is a parent (legally) falls to the states.   And as you will know if you have read this blog for a while, the states vary in how they do that.   People who are identically situated will be recognized as parents in some states and not be recognized as parents in other states.  This is striking and interesting, but not in and of itself a constitutional problem.

While the states get to decide who is a parent they do not have unlimited freedom in crafting their definitions.   The Constitution provides some constraints.   To see this, consider a well-known case–Stanley vs. Illinois.   (I know this is redundant for those of you who read all the comments yesterday.  Sorry.)

Peter and Joan Stanley lived together intermittently for 18 years.   They had three children.   When Joan died Illinois said the children became wards of the state because the way Illinois defined “parent” didn’t include Peter Stanley.    There are several possible problems here–for instance, if Peter had died Joan would have been recognized as a parent and you might see that as sex discrimination.   The actual rationale for the result isn’t as clear as one might wish, but the result is clear:  The Supreme Court held that Illinois couldn’t just decide that Peter wasn’t a parent–that violated the Constitution.   I think it is fair to say that the case tells us that Constitution requires that Peter Stanley be recognized as a parent.

At the other end of the spectrum is Lehr vs. Robertson.   Lorraine Robertson was unmarried when she gave birth to a child.   Jonathan Lehr asserted that he was the biological father of the child.   When the child was two, Lorraine and her husband adopted the child.   Lehr asserted that he should have had a chance to object to the adoption.

Now because no hearing was held, we don’t have a record of testimony but we know what Lehr said he could prove.   Lehr and Robertson had been together for a couple of years before the birth of the child.   She told everyone he was the father and he visited her every day in the hospital.   When she left the hospital she did her best to hide from him.  Every time he figured out where she was he tried to visit.   Eventually he was unable to find her and hired a detective.  When the detective found her Lehr offered to provide support and establish a trust fund for the child.   He hired a lawyer to begin an action to seek visitation.   It was perhaps in response to this that Robertson and her husband began the adoption proceeding.  (All of these facts are recited in the dissenting opinion as the majority did not think them significant.)

For all that he did do, there is one thing that Lehr did not do:  Send a postcard to an office in NY that keeps track of men claiming to be fathers.  If he had sent that postcard he would have gotten notice, but since he didn’t, he was not.

The US Supreme Court affirmed, holding no constitutional defect.  I think the case says, in essence, that Lehr is not necessarily a father as a matter of con law.  He’s in a category where a state could recognize him as a father if it wanted to but it was also okay to not recognize him.   Thus, he is not like Peter Stanley who must be recognized as a father.    New York’s choice not to recognize him is permissible.

I will stop here for now–long enough for one day.  More con law tomorrow.



55 responses to “Defining Who Is A Parent Under the Constitution

  1. “I think everyone agrees that the initial task of defining who is a parent (legally) falls to the states.”

    That may be true some of the time but not all of the time. If the child is born in one of the States your right, but if the child is born abroad then your wrong – then the federal government ascertains has to confirm if the people claiming to be parents are the parents. And Federal law is nice and clear and logical on this subject. You are only a parent if the child is your blood descendant. The federal government does recognize the authority of an adoptive parent, but they are not the same thing as a child’s parent that made them. Citizenship of a child born abroad requires the child be a blood descender

    7 FAM 1130
    (CT:CON-367; 04-08-2011)
    (Office of Origin: CA/OCS/PRI)
    7 FAM 1131.1 Authority
    7 FAM 1131.1-1 Federal Statutes
    (CT:CON-349; 12-13-2010)
    a. Acquisition of U.S. citizenship by birth abroad to a U.S. citizen parent is
    governed by Federal statutes. Only insofar as Congress has provided in
    such statutes, does the United States follow the traditionally Roman law
    principle of ―jus sanguinis‖ under which citizenship is acquired by descent
    (see 7 FAM 1111 a(2)).

    7 FAM 1131.3 Adoption Does Not Confer U.S.
    (CT:CON-349; 12-13-2010)

    7 FAM 1131.4 Blood Relationship Essential
    7 FAM 1131.4-1 Establishing Blood Relationship
    (CT:CON-349; 12-13-2010)
    a. The laws on acquisition of U.S. citizenship through a parent have always
    contemplated the existence of a blood relationship between the child and
    the parent(s) through whom citizenship is claimed. It is not enough that
    the child is presumed to be the issue of the parents’ marriage by the laws U.S. Department of State Foreign Affairs Manual Volume 7 – Consular Affairs
    7 FAM 1130 Page 3 of 81
    of the jurisdiction where the child was born. Absent a blood relationship
    between the child and the parent on whose citizenship the child’s own
    claim is based, U.S. citizenship is not acquired. The burden of proving a
    claim to U.S. citizenship, including blood relationship and legal
    relationship, where applicable, is on the person making such claim.

    !!!!!!!!!!!!!!!MATERNITY FRAUD!!!!!!!!!!!!!!!
    7 FAM 1131.5 Suspected False or Fraudulent
    Citizenship Claim of Minor Child
    7 FAM 1131.5-1 Types of False or Fraudulent Claims
    (TL:CON-68; 04-01-1998)
    False or fraudulent citizenship claims involving children not related by blood
    to the U.S. citizens claiming to be their parents can involve false claims of
    paternity or false claims of maternity. When a married couple falsely claims
    that a child is theirs for purposes of citizenship documentation, it is
    sometimes referred to as adoption fraud. These fraudulent claims are often
    detected when the alleged parents apply on behalf of a child for a Consular
    Report of Birth Abroad or other documentation as a U.S. citizen.

    • You are quite right–sorry. I over generalized. I should amend what I said to reflect your point. There are special rules for conferring US citizenship and it does run by blood. But I’m not actually sure this will get you parental rights in any state. I could and should know more about it, but I think the idea here is that conferring US citizenship extraterritorially is exclusively within the federal domain and the area you allude to is all about citizenship. It is not about parental rights, actually, which is where I want to focus. And you couldn’t take this law and go to a state and insist that the state must recognize you as parent because of this federal standard.

      • Oh you know that what you just said sent me into a tail spin. I can see the logic of what you said based upon the stupid way things are set up – this is why i want to change the law so badly. I settled on asking my senator for something simple – that a person cannot be disqualified as an eligible family member if they were issued a biologically inaccurate birth record. That any private entity or public agencies that have special benefits or rules for people and their qualifying family members must accept dna test results from an approved laboratory as an alternate to a copy of their original birth certificate proving the relationship.

        Did you know that right now people in reunion don’t qualify for the family leave act or bereavement leave if their sister or parent or whatever dies? They don’t have the legal right to take the afternoon off to attend the funeral. They can’t claim their disabled brother as a dependent relative on their tax return if they take over his care when his adoptive parents pass away and he’s all alone. (that is a real scenario comming up on someone’s plate here in the next 10 or 15 years).

        Not saying it should trump custody orders on a minor child or that it should trump rights on one of your intended parent types but it would help a lot of adults legitimize their biological relationships when they are penalized due to the actions of an estranged and irresponsible parent. Should the parent dictate who everyone in his or her family knows and speaks to and interacts with as family? Those other relatives don’t have any special authority to be granted or taken away. They do have rights to certain benefits though which they are currently prevented from enjoying due to lack of recognition of biology as at least one of the ways people create a family. You know? Can it please be 1 of the recognized family forms? Because it seems like its the only type of family that is not protected by all these cookie laws so can bio family at least get in on somma what everyone else is enjoying?

        • I think I understand why this drives you crazy but I think it reflects the point i was trying to make about how law works here. The person who is genetically related to you may or may not be a legal relative. in some instances it is pretty clearly up to the states to choose. Thus, they can say a sperm provider is a legal parent or they can say a sperm provider is not a legal parent. Either is constitutionally permissible as far as I can tell. (No cases really right on point, but you infer from what you have. If it is okay that Lehr is not a legal father, then it is surely okay that a sperm provider is not a legal father. At the same time, if a state chose to make a sperm provider a legal father I don’t see how anyone could raise a constitutional objection.)

          This is why I said that the state determines who will be legal parents. The whole idea of a legal parent is a construct that it dependent on law and law is made by someone or other.

  2. Hey wait a minute! State’s don’t DEFINE parenthood, they CONFIRM it, certify as to the claim’s accuracy based upon those people having established maternity or paternity. They are not handing out parenthood – they hand out adoptive parenthood but that is not the same thing

    • I do not agree, and this is really important. States do define parenthood and who gets to claim it. They are handing out parentage. They define which people are recognized as parents–whether you can claim it by holding out, whether you can claim it purely on biology, whether you can claim it by virtue of marriage.

      I won’t say they confirm it because that suggests that the legal parent/child relationship is already existing before the state acts and the point I want to make here is that this is not so. The legal relationship exists only by virtue of state law. So, for example, under Illinois law Stanley was not a legal parent. (this turns out to be unconstitutional.) Under NY law, Lehr is not a parent. But there were probably states where Stanley and Lehr would have been legal parents.

      • But parenthood does exist without legal recognition. States are required by the federal government to attempt to locate the fathers of children whose mother’s are unmarried. The UPA states that the reason for that is that knowledge of and contact with both parents can be very important for the child to have an accurate family medical history and a sense of genetic heritage. The UPA specifically explains how states are suppose to go about locating the biological fathers of children, test them and then record them as fathers of their offspring and women. The federal government requires that state’s obtain the consent of both parents to an adoption, not just the mother and they require states to make an effort to locate fathers whose identities are not yet known and not yet confirmed. Its very clear that the law does recognize that all children have fathers and its very clear that the law intends to get them identified and recorded. They won’t record the identity of a man they test if he does not have a positive paternity test.

        Positive paternity means a man is the father. They confirm it to be true with paternity tests and presume it to be true by virtue of marriage or a vap. What gets confusing is where men without positive paternity get named as fathers by mistake state’s just let the error stand.

        • Biological parenthood exists without state action. States may decide that biological parenthood has some legal meaning–as with what you decide. But they can also decide that biological parenthood has no legal meaning (as some states do with sperm providers.)

          I do understand that there really are facts and these might include biological relationships as well as social relationships. What the state gets to decide is which of these facts have legal meaning and what meaning they have. They get to decide who is and who is not a legal parent. That status may depend on or take into account various facts, but the states figure out which ones.

          This is the place where it’s crucial to remember that I’m focussing only on LEGAL parentage–who is recognized in law. And I’d say that legal parenthood cannot be recognized without legal recognition–indeed, that looks sort of stupid when I write it that way. The statutes you are talking about grant legal recognition based on certain facts–facts about biological connection.

          I hope I’m being clearer?

  3. Nice research Marilynn
    Julie being that a federal definition of parenthood does exist, how does that state have the authority to get around that?

    • I don’t think people see the immigration provisions as being a federal definition of who is a parent. That is understood to be about when a child is a US citizen. A person could be a parent (via adoption) but the child might not be a citizen. Thus, I don’t think people see this as a federal effort to define who is and who is not a parent, but rather as a federal effort to define immigration status. Everyone agrees the fed can do the later. And that leaves the state definitions of who is a parent untouched.

      I’ll go a little further and say that many people would assert that the federal government, being a government limited to the powers conferred in Articles I, II and III of the Constitution, has no power to define who is and who is not a parent. That this is a matter left exclusively to state law. That’s why federal laws (like social security, say) don’t contain independent definitions of who is a parent and instead reference state law. (So they say things like you are a parent for SS if you are a parent under the laws of the relevant state.) There’s actually the same argument about marriage, too.

      • I see what your saying and it just bugs me that I don’t have an argument for it. Its driving me nuts. I’m cornered.

        • I don’t mean to make you feel cornered. I just want to be clear about what the law does. I think you don’t like it. (And for what it is worth, I do not like it either.) Possibly it is good to understand the things one doesn’t like so that one can figure out how to make them better?

          It might be that what you want is to set something up where the law always grants some sort of recognition based on some facts. For instance, you could have a law that said proof of genetic connection always entitles you to some status or other. Would that be better?

  4. And i am all with Marilyn on the defining v. confirming parenthood. New York is way to full of itself if it thinks its beureuacratic requirements are what creates parenthood. A freaking postcard????
    On another note, seems like many of these guys have gotten poor legal services. I don’t know if it makes a difference in the long run, but This guys lawyer should known about the postcard thingy. Lilkewise, the lawyer from Colorado should have known whether the guy needed to sue in Utah or Colorado.

    • Back to front–I’ve always thought that Lehr got poor legal service. He did so much and what he really should have done is send that postcard!

      But on the first point–which is more important–I really stand by what I said. It’s wrong to say what the state is doing is “confirming” legal parentage. That suggests that legal parentage already exists and that the state is just validating it somehow. I don’t think that is an accurate description of what is happening. The state is creating rules for legal parentage. A state can say, for example, that a husband is automatically the legal parent of a child born to his wife and then he is. Or a state could say that a person who signs the right documents before assisted insemination is automatically a legal parent and then she/he is. Or it can say that a woman who gives birth is automatically a legal parent. The states are making these people into parents by creating the law that says they are.

      • OK OK I am not nuts here it is in black and white from my own state of california. They do recognize that there is a father of every child who does have parental rights to his offspring even if they do not know who he is – they just don’t try real hard to find him and if they don’t find him and don’t get his consent I think it should be viewed as they could not obtain his consent and therefore the child cannot be adopted out. What if he is off at war? I have helped some Dads that came home from Vietnam to find that their children had been adopted out from under them without their knowledge. How could such a thing happen to a father who is off protecting his country our country? What a friggen slap in his face – he’s off protecting our freedom and liberty and we’re all undermining his? So wrong on so many levels – here goes that code and note that it says quite clearly that “if after blah blah blah”…”THE COURT SHALL ENTER AN ORDER TERMINATING THE UNKNOWN NATURAL FATHER’S PARENTAL RIGHTS WITH REFERENCE TO THE CHILD.” See people are parents of their offspring automatically and have parental rights automatically and they have to terminate those parental rights even though that man was never identified never recorded. Now like I said here goes that code:

        7663. (a) In an effort to identify the natural father, the court
        shall cause inquiry to be made of the mother and any other
        appropriate person by one of the following:
        (1) The State Department of Social Services.
        (2) A licensed county adoption agency.
        (3) The licensed adoption agency to which the child is to be
        (4) In the case of a stepparent adoption, at the option of the
        board of supervisors, a licensed county adoption agency, the county
        department designated by the board of supervisors to administer the
        public social services program, or the county probation department.
        (b) The inquiry shall include all of the following:
        (1) Whether the mother was married at the time of conception of
        the child or at any time thereafter.
        (2) Whether the mother was cohabiting with a man at the time of
        conception or birth of the child.
        (3) Whether the mother has received support payments or promises
        of support with respect to the child or in connection with her
        (4) Whether any man has formally or informally acknowledged or
        declared his possible paternity of the child.
        (5) The names and whereabouts, if known, of every man presumed or
        alleged to be the father of the child, and the efforts made to give
        notice of the proposed adoption to each man identified.
        (c) The agency that completes the inquiry shall file a written
        report of the findings with the court.

        7664. (a) If, after the inquiry, the natural father is identified
        to the satisfaction of the court, or if more than one man is
        identified as a possible father, notice of the proceeding shall be
        given in accordance with Section 7666. If any alleged natural father
        fails to appear or, if appearing, fails to claim parental rights, his
        parental rights with reference to the child shall be terminated.
        (b) If the natural father or a man representing himself to be the
        natural father claims parental rights, the court shall determine if
        he is the father. The court shall then determine if it is in the best
        interest of the child that the father retain his parental rights, or
        that an adoption of the child be allowed to proceed. The court, in
        making that determination, may consider all relevant evidence,
        including the efforts made by the father to obtain custody, the age
        and prior placement of the child, and the effects of a change of
        placement on the child.
        (c) If the court finds that it is in the best interest of the
        child that the father should be allowed to retain his parental
        rights, the court shall order that his consent is necessary for an
        adoption. If the court finds that the man claiming parental rights is
        not the father, or that if he is the father it is in the child’s
        best interest that an adoption be allowed to proceed, the court shall
        order that the consent of that man is not required for an adoption.
        This finding terminates all parental rights and responsibilities with
        respect to the child.

        7665. If, after the inquiry, the court is unable to identify the
        natural father or any possible natural father and no person has
        appeared claiming to be the natural father and claiming custodial
        rights, the court shall enter an order terminating the unknown
        natural father’s parental rights with reference to the child.

        7666. (a) Except as provided in subdivision (b), notice of the
        proceeding shall be given to every person identified as the natural
        father or a possible natural father in accordance with the Code of
        Civil Procedure for the service of process in a civil action in this
        state at least 10 days before the date of the proceeding, except that
        publication or posting of the notice of the proceeding is not
        required. Proof of giving the notice shall be filed with the court
        before the petition is heard.
        (b) Notice to a man identified as or alleged to be the natural
        father shall not be required, and the court shall issue an order
        dispensing with notice to him, under any of the following
        (1) The man’s relationship to the child has been previously
        terminated or determined not to exist by a court.
        (2) The alleged or presumed natural father has executed a written
        form to waive notice, deny his paternity, relinquish the child for
        adoption, or consent to the adoption of the child.
        (3) The whereabouts or identity of the alleged natural father are
        unknown or cannot be ascertained.
        (4) The alleged father has been served with written notice of his
        alleged paternity and the proposed adoption, and he has failed to
        bring an action pursuant to subdivision (c) of Section 7630 within 30
        days of service of the notice or the birth of the child, whichever
        is later.

        7667. (a) Notwithstanding any other provision of law, an action to
        terminate the parental rights of a father of a child as specified in
        this part shall be set for hearing not more than 45 days after filing
        of the petition, except as provided in subdivision (c).
        (b) The matter so set shall have precedence over all other civil
        matters on the date set for trial, except an action to terminate
        parental rights pursuant to Part 4 (commencing with Section 7800).
        (c) The court may dispense with a hearing and issue an ex parte
        order terminating parental rights if any of the following apply:
        (1) The identity or whereabouts of the father are unknown.
        (2) The alleged father has validly executed a waiver of the right
        to notice or a denial of paternity.
        (3) The alleged father has been served with written notice of his
        alleged paternity and the proposed adoption, and he has failed to
        bring an action pursuant to subdivision (c) of Section 7630 within 30
        days of service of the notice or the birth of the child, whichever
        is later.

        • I feel compelled to begin by saying that I am not expert in CA law. That said, I think what you’ve got here is a statement by California that tells us about the rights of unmarried men who are genetically related to children born there. Or at least it tells us about their rights in some circumstances. This tells us that those men do have some rights. More than the same men do in Utah, I think.

          In other circumstances (ART) the same men may have no rights at all in CA. (If a doctor is involved, they are not fathers and that’s the end of it. No right.)

          I don’t mean to suggest that the picture is simple. Indeed, state laws around who is and who is not a parent are incredibly complicated and often appear to conflict which leads to litigation.

          Maybe this is the simplest case to think about. You can have a man who can prove he has a genetic connection to a child. Let’s call him a biological father. Is he a legal father? Maybe and maybe not. In Washington if he was a sperm donor he is not a legal father and he has no rights at all. In CA if he was a sperm donor and a doctor was involved he is not a legal father, but otherwise he is potentially a legal father and has some rights. (The state will tell us what sorts of rights.) In NY if he was a sperm donor he is a legal father with all sorts of rights.

          You get all these different results because the state decides who is a legal parent and who is not a legal parent. Thus, they decide which people are legal parents. Put another way, the state determines the legal meaning of the biological relationship was started with. As far as I know each of the possiblities I just outlined is consistent with the constitution.

          You can say that the WA law is wrong. You can say that they are failing to recognize someone who should be recognized. But it undeniable that the man is not a legal parent in WA because that is what WA law says.

      • I get taht the law may veiw itself this way but i’m just saying they are far overreaching themselves. Parenthood existed long before the state.

        • Do you mean that LEGAL parenthood exists before the state? If that is what you mean, where do you think that legal status comes from?

          This is where I think the modifiers matter. I get that you can say that social or bio or other sorts of parenthood exist out there. And then you can discuss whether the law does or does not recognize that form of parenthood that exists anyway. You can say that the law should recognize this or that sort of person as a legal parent. But for me “legal parent” means a person recognized by the law as a parent and so I don’t see how you can be a legal parent until the law recognizes you as such.

          Perhaps the problem here is that you have a different definition of what it means to be a legal parent. If this is the case, can you say what it is?

          • Perhaps we are disagreeing on what the role of law should be.

            • Maybe. I think since the whole idea of a “legal parent” is constructed by law, that law must define who is and who is not a legal parent. In my view you can argue about how the law should do that, but there is nowhere else to look for a definition of “legal parent” except the law. Do you think there is some other source for the definition of “legal parent” and if so, what is it?

              This is really slippery but I think maybe we could say that what we disagree about is what the definition of “legal parent” should be and how it should match up with various facts–like genetic relationship. Another way of putting this is that we disagree about what the law should be here. That’s been my operating assupmtion, I guess. But maybe I am wrong.

  5. Julie with a system of either confirming genetic parenthood and then granting adoptive parenthood or foster parenthood step parenthood baring out right error and fraud, you have a system that intends to protect adults from being contracted in or out without their consent and you have a system that tries to ensure that children are not trafficked or sold away from their biological parents and everyone’s identities are recorded and could if we are lucky start being disclosed to adopted people.

    This other system of granting parenthood allows biological parents not to have their identities recorded in association with their offspring and any number of dangerous health problems arise as a result for the individual and for the community at large.

    There should definitely be more responsibilities that stem from genetic parenthood, certainly there should be a requirement to always be listed by name in association with each offspring for the health of the offspring and the health of all their immediate relatives and to protect the spread of disease in the general population and to promote medical research that is grounded in accurate birth statistics. Those obligations should never be able to be dropped or transferred just because there is a non-genetic legal parent responsible for raising the child to adulthood.

    • I understand your perspective but it isn’t the perspective that the law generally reflects. The Supreme Court in particular has been explicit (in Lehr) that biology alone does not create any constitutional entitlement to be recognized as a legal parent. This is why it is constitutional to say that Lehr is not a legal parent. You can say that the case is wrong (many people do not like it and say that), but it is a statement of what the law is. Since it is, in the end, the Supreme Court that gets to make the law on questions like this, it is sort of the last word. At least until the Supreme Court says something else.

    • I think we’re on the same page to some extent now. It seems to me that what you are saying is that the law should be more protective of/concerned with the legal status of genetic parents. And you offered some reasons to support this. All that is perfectly reasonable (even though I may disagree with some of it).

      Not to beat a dead horse here, but now can I go back to my statement (which is meant to be purely descriptive–just about how things are, not how the ought to be) that the US Constitution sets some broad ground rules for legal parentage but the states have freedom do craft specific rules. Some of these rules don’t provide nearly the kind of protection that you’d like to see for genetic parents but are nonetheless constitutional.

  6. Julie – I sit on the side that the state confirms or denies the parentage for the father. If they granted parentage then all the adoption laws do need to be re-written removing the need for consent of the father back to what they were in my era (BSE) where the fathers were not party to any consent or termination of their rights as a parent. Once the states brought in the seek the consent of the father / terminate his parental rights – his parental rights are either confirmed by the states – or stripped by the states.

    • I think I understand what you mean here. And I think there is an important point to examine. Forgive me if I mischaracterize your views.

      First I want to repeat that for the moment I want to take about legal parentage–by which I mean the legal status as a parent. If you say that the state CONFIRMS legal parentage then this suggests to me that the legal status exists before the state says anything at all. Something other than the state brings the legal status into existence and then the state either confirms it (or perhaps recognizes it) or not. The question for me then is where does that legal status–the legal status that exists before the state says anything at all–where does that come from?

      I also wonder about what it means to say that you have that pre-existing legal status but then the state DENIES legal parentage. Does that mean that the state takes it away? Or does that mean that the state got it wrong in not recognizing the existing status?

      I know I’m repeating myself but I want to say that there are all sorts of pre-existing facts (biological relationships, relationships of the parties, intent and agreement of the parties) and the state decides which are important and which are not. So you can get rules like the husband is the legal father of a child who is born to his wife. That rules tells us that the state has picked some pre-existing facts (married to woman who gave birth) over others (biological relationship). The legal father in that system is the husband because state law says so.

      The states make the rules here, for better of worse, but they don’t make the facts. Legal parenthood isn’t a fact like biological parenthood. It’s the end product you get when you apply a bunch of legal rules.

  7. I just went back to my notes re WA law. My era the rights of the father were nil and no notice was required. Fathers of illegitmate babies were acknowledged as fathers but without any statutory rights.

    1943 – adoption statutes rewritten
    SEC. 8.
    The Court shall direct notice of any hearing in cases of hearing hereunder to be given to any non-consenting parent or guardian, if any, or any person or association having the care, custody or control of said child. Such notice shall be given in the following manner: The Court shall direct the clerk to issue a notice directed to the parent or such person or association as may have the actual care, custody, or control of such child, returnable in not less than ten (10) days from the date of its issuance, which notice shall be served in the following manner: By personal service as provided for the service of summons: Provided, however, That if it appears from the affidavit of the petitioner that personal service may not be had, then by publication in the manner provided by law for publication of summons, for a period of two (2) weeks, said notice by publication to be returnable fifteen days after the first publication thereof: And provided further, That if the Court is satisfied of the illegitimacy of the child to be adopted, and so finds, then no notice to the father of such child shall be required. Proof of service of notice shall be filed in said cause as required by law for making proof of the service of summons.

    1955 – from the session laws – no link available will find if you want it
    Sec 8 again
    (5) If the court is satisfied of the illegitimacy of the child to be adopted, and so finds, no notice to the father of such child shall be made.

  8. These arguments are difficult partly because the law tends to use “parent” or “father” without modifying it to tell you whether they mean “legal parent” or biological father” or whatever. It’s why I try to be careful with language, though obviously I mess it up, too.

    I think as “father” used in that last section it means “biological father.” And I’d say what that last section means is that the biological father isn’t a legal father. And that pretty much was the law then. The biological father had no rights at all, which means he had no parental rights, which means (I’d say) that he wasn’t a legal parent. I’m not saying this is good or anything, just describing it.

  9. Julie – do you agree or disagree that by rewriting the law the prevously did not give a father of an illegitimate child any right to consent or not – now requiring the father to be given a say they are confirming he has a parental right to parent? Regardless the number of hoops he must jump through. Really hard question to ask but the change from no rights to rights that must be terminated evoked the state sanctioned parental right regardless of the birth status of the child.

    • I think I agree although I am not 100% sure of the exact question. I do agree that by rewriting the law WA has given the father of a non-marital child some legal rights. I think the US Constitution gives WA some room to do this, too.

  10. I like to bring up citizenship law when explaining why creation of children is a federal issue, not a state issue. State courts generally decide who should be the legal guardians of children in their jurisdiction, and states can set the rules around the edges of marriage law according to their predominant cultural attitudes (where there is some disagreement such as first cousins, age of consent, waiting period to divorce, etc) but they don’t have final say, they have to allow interracial couples to marry, because our rights as Americans override a state’s decision. And states should not be able to allow or approve same-sex couples attempting to create offspring, or people to create offspring through cloning, genetic engineering, etc, because our rights as Americans to be created equal are supreme.

    • Oh I forgot to explain what I mean about it being a federal power, not a state power – the Constitution gave states until a certain date, I think 20 years into the future, for states to continue having control over immigration and importation of persons into America, after which Congress took charge and could make the rules about immigration and citizenship. “Importation of persons” refers to the slave trade, and creating babies isn’t quite like owning slaves but the point is, making babies is a form of “importation of persons” into the US, becoming American citizens.

      • So this is a way of arguing that certain things fall within the federal (as opposed to state) power. That’s a way you could try to justify having the US Congress make one law for the whole nation as opposed to leaving it to individual states. In theory this is a plausible argument. But I’m really doubtful that you’re going to convince enough people that ART is enough like slavery that the prohibition of one necessarily leads to the prohibition of the other. (You’re thinking of the 13th Amendment here?)

        • “But I’m really doubtful that you’re going to convince enough people that ART is enough like slavery that the prohibition of one necessarily leads to the prohibition of the other.”

          The federal government lays down some pretty heavy edicts from time to time requiring every State to toe the line and it usually relates to eliminating instances of inequality. Sure slavery is an excellent example of inequality and so is civil rights, the right for women to vote, equal pay for equal work, the federal minimum wage, the american’s with disabilities act, aid to families with dependent children…and really, the list is endless because this is the greatest country on earth. In the past couple hundred years the federal government has chipped away at laws that treat people unfairly; its slow going folks but you saw it here first; we set the tone for the planet on human rights issues.

          People who are in contact with their biological relatives have an enormous advantage over those who don’t. The advantage they have is not that they are more loved or better cared for, not that they are better adjusted or smarter or happier or less abused, they are simply better informed and have the information they need to make decisions for themselves and on behalf of their children some day. Why are we blinding people this way? Why does need to happen? Who is served by not letting people know who their relatives are? Why is it that they are being allowed to interfere in other peoples lives? If they don’t like biological relatives they are free to not talk to their own relatives they should not be making that decision on behalf of others. It is a human rights violation that has massive terrifying public health implications if things continue to progress unchecked as they have been.

          What I object to is the blinding of people in the service of others. What if the world woke up tomorrow and the words in all the books were gone? What if the text of every history book, every law book and every great work of literature was just…gone, but you knew who had it, and when you said “please” they said “no”. Is it your right to learn from the past? Maybe not. Will you be scarred from that lack of information? Who’s to say? What if a million years of evolution were erased? Would humanity have to start all over from scratch? Would we repeat the Holocaust? Would we loose millions in natural disasters because we had no idea how to build buildings to withstand hurricanes and earthquakes? Would we level all our forests again? Would children work in sweatshops? When you cut a person off from knowing his or her immediate genetic relatives they cannot learn from that collective past and present most relevant to their own personal development. That not only effects them but on a large scale when millions of people are blinded like that it has the potential to be a public health nightmare of monstrous proportion. 150 unknown siblings is child’s play its not even the tip of the iceberg.

          • tow. tow the line.

          • “What if the text of every history book, every law book and every great work of literature was just…gone, but you knew who had it, and when you said “please” they said “no”. Is it your right to learn from the past? Maybe not. Will you be scarred from that lack of information? Who’s to say?”

            Wow, cool analogy. I’d say that people have a right to learn the past and have access to books, and it would be wrong to say “no” and deny people factual knowledge.

          • You have to look quite carefully at the array of federal edicts you refer to because the picture is really complicated. There are recurrent struggles around what can be governed by federal law and what can be governed by state law. It’s generally agreed that you start with the Constitution which explicitly commits certain powers to the federal government–like the power to make war. (New York State could not declare war on Canada, only the United States can declare war.) The Tenth Amendment generally provides that those powers not assigned to the federal government remain with the states or the people.

            It has been generally understood that most of family law is subject to state regulation. But of course, the US Constitution remains a trump card, as it were. Thus, the some sorts of laws are off the table–the state cannot choose them–because of Constitutional regulation. So family law could run afoul of concerns about equal protection if it incorporates stereotypes about men and women–because we have some commitment to gender equality. But don’t get all carried away with that–the Supreme Court has been clear that you can properly treat men and women differently when there are “real” differences and family law is an area where there are some real differences–women get pregnant. Thus, there’s a lot of debate about what sorts of laws are permitted.

            It’s also possible for the fed to influence state laws in various not-so-subtle ways. So for example, states may only recieve certain federal funds (I forget which) if they enact a schedule of child support–a chart, basically, that says how much child support and how it is calculated. The state has broad leeway in making up the chart, but there has to be a chart. The federal government could not (it is thought) decree what is on that chart, but they can make the existence of the chart a condition of federal funding.

            All of this is to say that it is hard to make broad generalizations about what the federal government can and cannot do. I The one generalization I am most comfortable with is to say that most people think most of family law is not a proper subject for federal legislation but is generally governed by the states. This is why there is such a patchwork of different laws and why, realistically, it is highly likely to remain that way.

        • Your view of parenthood is like slavery, in that you say that the state’s legal rulings and police power are what makes children the property of adults, not any innate human dignity or condition. The only difference is that children become emancipated at 18, but they still feel an obligation to the people who raised the.

          I wonder if there are stats about children who emancipate and leave their parents at 18, like disavow them and never see them again; do you think that happens more with real parents or with legal parents?

          • I should say that the innate human condition of being a couple’s child does not make them “property” in the way that a legal pronouncement does, though the parents have the same power and control of another person either way. And not all legal rulings about legal parenting reduce a child to “property”, it’s quite possible to preserve their dignity, merely by not suggesting that parenthood is purely a function of the state laws, in all cases. That’s what turns parenthood into slavery.

            • John I see it very simplistically – if you created a life your responsible for sustaining that life until that person can adequately care for himself or herself. Children cannot fend for themselves and leaving them to their own devices will generally lead to the death of the child unless someone steps in and saves the child from wandering in to the street or starving or whatever. The child is not the property of the genetic parent the child is the responsibility of the genetic parent to keep alive. That is why we have laws about parental neglect – you don’t have to be named on a birth certificate to get in trouble for leaving your genetic child in a dumpster if the dna matches you better believe you will be held responsible for being a parent who endangered the life of their child.

          • I had a friend in high school who got emancipated from her real parents. She was a real piece of work though.

          • The analogy between being a parent and being a slaveholder is really interesting. You can find many references to slaves as being like children–unable to be fully competent adults. Thus, I think there is something here. Legal parents have extraordinary power over their kids.

            But unlike slavery I think most people do accept the idea that parents have power over the kids. We really cannot let two year olds make their own decisions. Someone has to be in charge, and those people who are in charge are the parents.

            Would you say that all parents are akin to slaveholders and all children akin to slaves? You could take that stance, but I don’t think it is what you think. Is it fair to say that you think that those who are biologically related to their kids are somehow excluded from the characterization as slaveholders? If that is the case, why? Is it because this is just the natural order of things?

            • When you assert that parenthood comes entirely from law and not biology, you treat children as slaves, property. It must be understood that legal parenthood follows from natural parenthood and should confirm it. Then we can still use the law to assign guardianship of children that lost their natural parents to other adults without parenthood becoming ownership and children becoming slaves.

              • This is where I think language makes things very difficult. To be clear what I assert is that legal parenthood comes entirely from law. What I mean is that the law declares who is and who is not a legal parent.

                I would describe your view as a plausible natural law view–some people must be recognized as legal parents (those who are genetically related) because there is some transcendent and not humanly constructed law that says they are parents. Thus to not recognize them as legal parent is wrong.

                I assume it is clear that I do not agree with this view. I do not accept the trascendent principle–that a person who is genetically related is necessarily a parent. I do not know where such a principle would come from, either. Nor do I understand the method by which one identifies and articulates principles like this or how you figure out if there are other similarly trascendant principles.

                • You keep making a strawman that I am saying that bio parents must be legal parents. No one says that. They can be unfit, or unknown, and other guardians can be assigned to take their place.

                  I think law comes from natural parenthood, and from other cultural artifacts from pre-civilization. I’ve seen nature shows where animals nurture their own litter and kick other mother’s babies out (and some where they nurture each other’s babies), and where adults nip at each other to enforce some primal law. I’m sure in early human history, those primal cultural behaviors became enforced more formally, reinforcing what was already expected.

                  • I’m sorry if I make you a straw man–that’s not intentional. I thought it was what you said. That said, what you are saying here doesn’t quite make sense to me. To say that a bio parent may be unfit or unknown, while true, doesn’t quite answer the question about legal parent. An unfit legal parent may have parental rights terminated, but they must be deemed to be a legal parent before you do that. And an unknown legal parent may have rights terminated, but again, first you make them a legal parent.

                    The second paragraph you have here–that law comes from natural parenthood–is the view that I mean to attribute to you, I think, though I’m not positive what you mean there, either. Maybe we can get at this if I ask a couple of questions.

                    Are states free to adopt laws about who is and who is not a parent and define parenthood in a way that it does not follow biology? I am not asking if you think this is a good idea–but whether it is permissible to sometimes define legal parenthood in ways that exclude those who are genetically related–so that a man who provides sperm for insemination of a woman not his wife is not a legal parent?

                    Is the question of who is a legal parent purely a question of human-made law–what the statutes and the judges have said–or does it have some other meaning? If it does, where does that come from?

        • Oh we don’t have to decide that legal-based parenthood is slavery that violates the 13th Amendment to say that Congress is empowered to overrule state laws about ART or custody or marriage. It’s enough that it creates interstate commerce and causes FF&C conflicts, and is an international issue too, the subject of treaties. And the creation of Americans is a federal issue, a birth is an importation of persons, they are imported from non-existence rather than from some other country, but they show up in America just the same. It’s not where they came from that matters, it’s that they end up in America.

    • If these are statements of opinion, that’s fine, but I don’t think they are generally accurate descriptions of the law. For over a hundred years states had all sorts of law about who could and could not marry. That’s the ordinary course. Finally, in 1967 (Loving vs. Virginia) the Supreme Court said this is not OK–that particular restriction was determined to be out of bounds. But it still left the general regulation of marriage to the states. And it is still true that marriage is defined by the states–what age you have to be, say, or whether you can marry a first cousin. This is what I mean about the S CT and the Constitution setting out broad boundries.

      The same thing is true with respect to parenting. Some states say sperm providers are legal parents, some say they are not legal parents, and some say it depends on the details of the arrangment. Each of these is constitutionally permitted as far as we know. It’s up to each state to decide what system suits it.

      This is really the core idea of federalism–that we in the US are simultaneously in a state (say WA or NJ) and a country (US). There are overlapping sets of rules. Some things–things sometimes described as “local” and this typically includes all of family law–are left to the states, some–foreign policy and declaring war, say– are exclusively federal, and some get double sets of rules. But underneath all that the US Constitution does set limits.

      • Surely you agree that legal parenthood – who has responsibility for and control of a child – shouldn’t change when a family crosses state lines. People are supposed to be able to freely travel throughout the united states, and if they lose custody or become criminals in some states, that’s not possible.

        The only reason family law is left to the states is because the members of Congress haven’t yet agreed that it should be done federally, uniformly. They recognize that it would be a headache to negotiate and would burden federal courts. But it would make a more perfect union, and so they should get off their lazy bums and improve the general welfare and regulate the commerce of interstate family law shenanigans.

        • As to your first paragraph–I do think it is problematic when you are a parent in state A but then go on vacation to state B and suddenly you are not a parent. If your parenthood is conferred by a court order (like an adoption) this cannot happen. But if your parenthood is conferred in some other ways it can and I think it’s a dreadful problem. This is particularly a problem for lesbian and gay parents who have recognition in some states and not in others. I have written about this as the problem of portability and you can search that on the blog and find discussions. See, for example,

          I disagree with your second paragraph. Many people would say Congress cannot act in this field even if they want to because the federal government has no authority to act. For the feds to enact legislation you have to find a specific grant of authority in the US Constitution. If you look at the Constitution there’s nothing about family law stuff in there. This doesn’t mean the federal government has no role, but the role is limited (see my long comment in response to Marilynn). Simple invocation of “the general welfare” won’t do it.

          • Another parallel – slave owners were state’s rights advocates too. It’s funny to see liberal feminists join with radical right wingers on the 10th Amendment. In all cases, anyone that cites the 10th Amendment knows they are doing something wrong and are just looking for a way to keep getting away with it.

            “Reserved for the states” did not mean forever prohibited to the federal government, the only things forever prohibited to it were in Section 9. When you reserve a table at a restaurant, you can’t expect them to hold it for you for 200 years, it is understood that it expires. If the drafters had wanted to say that the powers not granted to the federal government by the Constitution were prohibited to it, it would have been easy to say just that. Instead, what they were saying was that all the other stuff was still the state’s or the people’s responsibility, they were still in charge of everything else, for now. Absolutely the General Welfare and Commerce and Treaties and FF&C clauses direct Congress to make laws to make a more perfect union. The states are arbitrary jurisdictions, vestiges of a short time as sovereign nations before the Constitution created a new nation called the USA.

  11. Julie said: “I think I agree although I am not 100% sure of the exact question. I do agree that by rewriting the law WA has given the father of a non-marital child some legal rights. I think the US Constitution gives WA some room to do this, too.”

    Exactly what I was trying to ask – by excluding them and the including them as a parent who must consent they are conveying that his is a legal parent who’s rights must be protected. Adding all the hoops in the law to protect that right is how they legally exclude him from having a say.

    I would expect you will find the same turn around in rights in any states laws around the same time period.

    The hoops when reasonable make sense to allow a timely termination of those fathers who could care less. But trying to say it has to be done before the mother signs consent just after birth is insane.

    Sorry to be stuck on this topic but the state actually has deemed an unwed father to be a legal father as long as he stands up and is counted. Some states are just blatantly unfair in the hoops.

    • To put this in a broader historic context, once it was commonplace for men who were biological fathers of children born to unmarried women to have no legal status. Another way to say that is that illegitimate children typically had no (legal) fathers. There was a sea change in US law in the latter third of the last century. Rights of illegitimate children were recognized and protected. Along with this, the unmarried fathers got some protection.

      Stanley (the Ill. case) involves one of the older laws. Remember that the law there defined things so that Stanley was not a father and the Supreme Court said that was unacceptable.

      But you are right that the position of unmarried fathers remains somewhat precarious. As Lehr says, being biologically related gives then an opportunity to become a father, but they have to claim the opportunity and states define how they do that. This is where the hoop-jumping comes in. Lehr did not jump through the proper hoops and so he is not a legal father. And the Utah laws suggest that you can make the hoops pretty small and hard to reach. But if you do get through them properly, then you are a legal father and have rights.

  12. So my understanding after having read and followed this blog is a bit unclear. I understand that an unmarried mother willing to give child up for adoption can, leaving father with no rights. Now what if a father doesn’t want anything to do with the child?

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