I’m back! I thank you all for your patience while I was travelling. There are some comments I need to read through but I also have a couple of posts in mind. One–this one–is general, not hooked to current events, and what I was thinking about while away. The other (which I hope to get to later today) is more about recent news.
Those of you who have been reading the blog for a while know that there is lively debate about various competing tests for parentage–genetic relationship, intention, function, married to another parent and so on. What struck me while I was travelling is how often the devolves into a zero sum game, where one person’s claim to rights necessarily diminishes the rights of another.
Now I’ve written about this from time to time and I do think there are reasons why it ends up this way. But perhaps we rush to that zero-sum game part a bit too quickly and maybe it is too easy to assume that this stage is inevitable.
Is it possible to avoid the compare/contrast/rank part of the analysis? I guess I’m not sure, but I did try to think a little bit differently. Here’s what I mean.
Let’s imagine you have new neighbors. There’s an adult and a child–a young child–maybe one/two/three years old. Because they are your neighbors you see them out and about and have a sense of the rhythm of their lives. And what you see is that the adult acts like a parent to the child.
Now it’s necessary to pause here. What does that mean–to “act like a parent?”
There are a couple of problems here. First, while it means something to me–something pretty clear and distinctive, in fact–I’m hard put to clearly articulate it. This is, I’m afraid, in the “I know it when I see it category.” And of cousre, what I will know when I see it may not be what you will know when you see it. It’s a fuzzy and individual idea at best. Second, I wonder if there are people for whom it doesn’t have meaning–people who would not even say “I know it when I see it.” Thus, my hypothetical–that you see your adult neighbor acting as a parent to your child neighbor–doesn’t mean anything to them.
Despite these problems I’m going to press on a bit further. So to return, you see your neighbors acting like a parent to the child. (I’m happy to flesh this out a bit more if that’s useful.) And time passes.
The question, then, is whether the law should (presumptively at least) recognize and/or protect the relationship between your neighbors in some ways? It seems to me there is a simple and clear argument in favor of some sort of protection–one that can be rooted in the general societal interest in the well-being of children as well as in some idea of fairness to/concern for adults.
It’s reasonably well-known (though I suppose it is not incontrovertible) that children benefit from forming strong and stable psychological attachments. Disrupting those attachments is sometimes necessary or inevitable, of course, but it could be recognized as undesirable. And in order to secure those sorts of attachments we could decide to grant protection to the relationships that create/comprise those attachments.
That’s the justification, I think, for saying that some rights of some sort should arise from a functional parent/child relationship. And that’s as far as I want to take this right now–no comparisons, no consideration of implications for other people who might claim protections of other relationships.
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The child’s legal entitlement to support from his or her parents (mother and father respectively), arises from dependency upon the parents respective performances of their legal obligations as parents, right?
So the child does not have a legal right to be supported by anyone other than his or her parents. That is the obligation to support a minor child arises from being a parent and not the other way around. You don’t have an obligation to support a child if you are not that child’s parent. That would be chaos if people suddenly were having their pay docked for back child support on other people’s offspring they’d never met or even if they had met them, the person who should be obligated is the parent or sometimes the adoptive parent because they chose to assume those very important responsibilities. Adoption (much as I don’t like some of its components) does protect the adopting party from being coerced into accepting parental obligations if they don’t really want them. You would not want for a helpful friend to be stuck paying child support on their friend’s kid just because they had stepped in and taken over when their friend went on a bender for a year and now has their life back on track and the friend reproduced with a sperm donor and she’d like some extra financial support and can pin that support on helpful friend who bonded with the kid. See that sucks.
I’m not sure what the child’s entitlement to support arises from. You could look at this different ways. For some, this is cause and effect—you caused the child to come into being and you are therefore responsible for the costs incurred. This actually might mean costs get imposed on intended parents even if they are not genetically related.
There are also instances where an obligation to support might arise from the fact that a person essentially prevents other people (including genetically related people) from undertaking the obligation. So if I occupy the space and the child ends up relying on my support, then I have to continue that support.
There are however cases where quite late in the game a man finds out he is not genetically related and courts let him stop paying support, even though this might leave the child without support.
All of which is to say that in fact and in theory, the question of why a child is entitled to receive support from a particular person may be harder to answer than it would seem.
I wonder, too, if we ought to necessarily tie suport to parenthood. Remember that legal parents have all these rights vis-a-vis a child. I think I’d find instances where I’d say a person might have an obligation to support but shouldn’t have any rights to control the child’s life. Why should we necessarily link those things?
What do you mean by this “the adult acts like a parent to the child” is this more likely in physical and emotional attachment or financial? I would have like to comment something but the point you want to make is very vague.
Indeed it is very vague and that, as I tried to point out in my original post, is a problem. i can, however, be a bit more specific. I’m thinking of the social/emotional and perhaps physical parent. I think that’s what you see as a neighbor. You don’t know who pays the rent or where financial support comes from. But you can see who is out with the child, who gets home to meet them, who is greeting playmates, etc. I don’t mean to suggest that this is very definitive, but it’s the type of thing I’m thinking of. And I certainly see that the vagueness is a problem.