Now About the General vs. The Specific

I just want to loop back here to the earlier post about Utah law and the general/specific problem.   I think the excursion into con law and its relationship to family law has been important, and with that in mind I want to go back to my thread.   To do this I’m going to summarize–but it will make most sense if you’ve read the earlier posts and are not just relying on this summary.

In enacting its law about adoption and the rights of unmarried fathers, Utah has made a policy choice, or maybe a series of choices.     Here’s one way to describe them:   Utah says it’s best for kids to be raised in married heterosexual families.  (Lot’s of people would agree with this starting point.)  Thus, the state wants to minimize the instances where children will be raised in nonmarital families.  

If an unmarried woman is pregnant, Utah would like to see one of two outcomes–either she gets married or she gives the child up for adoption by a married heterosexual family.    Consistent with this, Utah law prefers adoption by married heterosexual couples and makes it easy for her to give the child up if this is what she wants.

By contrast, Utah isn’t terribly sympathetic to the position of the unmarried man involved.   It has made a choice to place a lesser value on his interest in raising the child.   You might say that they think the well-being of the child is more important than his interest, and they think the well-being of the child is best served by putting that child with married parents.

Specifically, Utah has decided that it is more important that the child be raised by married heterosexual people than that the child be raised by the man to whom it is genetically related.   They have also decided that the interests of the man (as opposed to the child) aren’t as important.

Now I know you may hate this and think they’ve got it all wrong.  But the first question I’d ask isn’t whether this is what you would do were you in charge–it is whether this is a constitutionally permissible choice.   In general I think it is permissible, though I won’t speak to the details of how Utah has effectuated its choice.

All of this is on the general and abstract level.   The case that I wrote about last week is a specific instance of how the general policy plays out.   Here the action isn’t in the legislature anymore, it is in the courts.  And the courts don’t deal so much in abstractions–they deal in specifics.  One specific man, one specific story.  And if you go back and read about that case, you’ll see that this one man–Robert Manzanares–has a really compelling story to tell.

It’s very difficult–I find it nearly impossible–not to get caught up in the specific story.   In this case, it is very difficult not to feel like Manzanares was treated terribly–so terribly that I want to see it fixed, nevermind the broad policy stuff.   It isn’t surprising to me that the majority–focussed on the facts–rules in his favor.

Notice that the dissent complains that the majority is avoiding the result demanded by application of the policies the legislature has chosen because of its sympathy for the individual.  That’s pretty typical and there’s some force to that point.

This tension, between the legislature’s general commands and an individual case’s specific appeal, is quite common.   The basic design of our system is that the legislature thinks in broad and abstract policy terms and enacts laws while the courts apply those law to specific sets of facts.   There will always be individual cases where the general law doesn’t seem to play out well.  Courts have to figure out whether to accept unpleasant results or whether to respond to the individual case.

I think this is especially true in family law.   When an individual judge looks at particular people and perhaps especially particular children it is very hard not to want to do right by that one person or that one child.   The legislature can make its choices without looking a that one case, but the courts cannot.    I say nothing about whether this is good or bad, but I think it is something that really profoundly shapes our law.

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8 responses to “Now About the General vs. The Specific

  1. I remember making a point to you once or twice that courts decide parenting cases according to the best interests of the child, and your goal of making laws so that all cases “must” come out according to your preferred outcome (which would be, whatever is good for lesbians) is misguided and your arguments are against straw men, as if there was no role of courts in family law in resolving parenting rights.

    • You may well have made this point, but it is not accurate as a description of what the law is–nevermind what I think the law should be. (Maybe this depends on what you are calling “parenting cases.”)

      When a court decides a custody case between two parents (think of a divorce) almost all court’s use a test known as “the best interests of the child.” They compare the options and choose what is better. This is not the topic I mean to be discussing here.

      When a court decides which people get to be recognized as legal parents, it does not use a best interests of the child test. This approach would gut parental rights. Anyway could challenge me asserting that they are a parent and the court would decide whether it was better for the child to be with me or that other person. To protect parental rights (and to protect the relationships between parents and children) we’ve separated the two inquiries. First the court asks “is this person who is challenging you a legal parent?” If the answer is “no” that person will almost always lose because I, as a parent, have a right to decide who my child spends time with. (There are exceptional circumstances.) If the answer is “yes” then it is on to the best interests.

      This is why tests for legal parentage do not incorporate the phrase “best interests of the child” but rather look to things like genetics or function or intent or holding out or whatever.

      This does not, however, mean that the law about who is and who is not a parent has nothing to do with what we think about what is good for kids. It’s just that it operates on a different level. You can argue, for instance, that it is best (generally) for children to be raised by those genetically related to them and therefore the test for legal parentage should be “are you genetically related?” The concern about the well-being of children is still there, but it operates at a broader and abstract level. It’s not about what is best for an individual child, but what is best for children generally.

      And finally, I don’t think I’m as simplistic as saying that the answer is always “whatever is best for lesbians.”

  2. Julie – right off the bat I had a bias against the dissenting opinions that was made much stronger by this statement:

    “¶99 The statement of legislative intent leaves no doubt that the Utah State Legislature enacted the Utah Adoption Act to encourage adoption, to favor adoptive parents, and to ensure finality and permanence in adoptive placements. The statement begins with the proposition that ―the state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner‖ and – in preventing the disruption of adoptive placements.‖ UTAH CODE § 78B-6-102(5)(a). And it recognizes that ―adoptive parents have a constitutionally protected liberty and privacy interest in retaining custody of an adopted child.‖ Id. § 78B-6-102(5)(d).”
    page 41 and for some reason I can’t post the link to the decision.

    No where is the BIC included in that message that I can see when it is in direct contradiction to any other child protection statements, the Hague etc. The legislature favors adoptive placements. They favor the adoptive parents rights. They favor adoption over biological homes – how can blatant bias against one be part of the law? Isn’t justice in the courts supposed to be blind? And if yes, they them must over-rule legislative bias.

  3. I think the idea behind the Utah law is that the expressed preference (for placement in a married parent household) is what is best for children. If you accept that assumption (that this is good for children) then I think you could defend the Utah law as being designed to ensure the well-being of children.

    Other people, including you, I think, start with a different premise–that a preference for those with a biological link (even if they aren’t married couples) will be best for children. If you start from there, then this law is a bad one.

    As a general matter, I think the Utah legislature can choose its premise. I don’t see that either premise is constitutionally compelled or prohibited. I’ll assume that both can be supported by evidence of various sorts as well as other forms of argument. Thus, this is the kind of choice that generally you’d expect a legislature to make and then the courts are supposed to go along with it. (Unless/until someone shows that the choice made by the legislature violates the constitution, remember.)

    You can describe this as bias–and it is bias in favor of one type of household over another–but I think this is the sort of thing legislatures do get to do. If one is unhappy with the result, the cure lies in changing the legislature via the electoral process.

  4. Going very far off topic…

    Julie – I get the consitution aspect but what about when the US has signed a UN Convention. Should they not also mandate that the laws in the states also follow that as well. I am specifically speaking to the Hague Convention as the US has not signed the convention on the rights of the children (only the US and Somalia hasn’t).

    If the Hague convention on adoption determines the biological family whenever possible – should not courts follow that as well? I know the states have rights but to what degree – should there not be an effort to conform? Case in point if you are in Ireland and want to apply for a permit to adopt from the US you must specify a state not the country because they deem some states as not being in-line with the convention. Ireland recently investitigated Florida adoptions and believe they are not allowing them from Florida at this time.

    Note the US is both a receiving and sending country under the Hague so I think that is also important to note. Should that not mandate compliance country wide?

  5. I can offer some thoughts on this, but it is really beyond my expertise. I’ll start with things I am most confident of and work towards those I’m more or less guessing at.

    When the US signs and ratifies a treaty it becomes the law of the land. Under the Supremacy Clause (I think that is in Article VI of the US Constitution) it will take precedence over state laws that conflict with it. This is general law I’m confident of.

    That said there are several Hague Conventions about children, aren’t there? As I think you suggest the US hasn’t signed some (?) of them and of course what isn’t signed has no force.

    But the US has signed (right?) the Hague Convention on Intercountry Adoption, which is (I think) what you’re referring to?
    http://www.hcch.net/index_en.php?act=conventions.text&cid=69

    The thing about this one is that it applies to intercountry adoptions–adoptions between one country and another. The adoptions we’re talking about are intracountra adoptions–within one country–in this case, the US. So by it’s terms I think it doesn’t apply.

    What I know I do not know is what would be required if it did apply in the US.

  6. Thanks Julie – yes it is inter-country adoption – interesting that supremacy and law of the land regarding treaties – learn something new each time I come here. I think though as both a sending and receving country the “sending” portion of it what could make it apply more generally.

    Vietnam as a current case – recent Hague country for adoption – the US has decided not to process any immigration paperwork for adoptions from Vietnam because not ALL provinces are in compliance with the Hague adoption requirements. On one hand, I am glad because Vietnam was closed due to corruption specifically moving babies from one province to another, but I also see hypocrisy at the same time, because the US has a huge issue with corruption past and present in adoption and the majority of US states do not comply with Hague adoption requirements.

    • As I’ve said, I’m not an expert on international adoption, but you are surely right to point to concerns about corruption–and specifically the kind of corruption that leads to selling/stealing children–being a driver for the Hague Convention. And I gather the Convention has really changed the face of international adoptions. There was a story not long ago (I think I didn’t blog about it) that detailed how many fewer international adoptions there have been since it went into force. And as you point out, whole countries have been closed out until concerns are addressed.

      There’s a more general point lurking here, too, that I’m not sure I can really flesh out. We agreed to the Hague Convention and it sets various standards that apply country to country and yet those standard do not have to be applied within the US–state to state. Sometimes the states are analogized to sovreign entities, as though they were little countries. And there is a compact governing state-to-state transfers of children (the ICPC, I think it is). But states aren’t really like little countries and the ICPC isn’t like the Hague Convention.

      Perhaps the key here is that all states in the US must comply with the dictates of the US Constitution–something other countries do not need to do. This sets a limit on what states can do and in that sense might be the better analogy to a convention like the Hague. But I don’t really know what to say or think about all this. Except that I do know the Hague Convention won’t apply to transfers of kids from one state to another within the US.

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