I’m picking up here on the discussion that’s been going on for a few days here. It started here and continued here. You will probably get more out of this if you read those posts first. I’ve tried to focus so far on the interpretation of Arkansas law. Bottom line? I’m inclined to think that in this case the court stepped away from the ordinary principles of statutory interpretation in order to reach a result a desired result.
That’s actually a rather technical, inside baseball sort of point. Now it’s time to turn to what is a broader question: If you were the legislature, say, what would a good statutory scheme look like? Or you could take the more specific iteration of the question: What’s the right way to deal with these facts? (Keep in mind, though, that these facts are, for the moment, very much bare-boned–we have virtually no details about the people involved.)
As I set out to do this, there’s one thing that strikes me. My reaction to the facts if strong. It feels to me (and I use the word “feels” quite deliberately) as though something terribly unfair has happened here. JEM did so much and seems to have been frustrated at every turn.
What’s important here for my purposes is that for me the problem here is the treatment of JEM. This is significant when it comes to figuring out what to do about the problem. At least as important here is what I am not saying/feeling. I do not react by feeling that what happened here is particularly unfair as to the child.
Now really, if you think about this, that isn’t surprising. Remember that I don’t think that being raised by the person to whom you are genetically linked is all that critical. This is where I disagree with many of my most faithful commenters. I can see (I think fairly clearly) what they would say here: That there is harm not only to JEM, but also to the child who is deprived of having his biological father be his legal father. I just do not agree with that view.
In my view, this child could have access to contact with JEM without having JEM be a parent and that might be fine for the child. (This will depend on specific facts I do not know.) So I’m not so worried about the child here, I’m worried about JEM.
Why focus on this? Because the question I’m asking is what to do about the situation. And if the core problem is unfairness to JEM (and that’s so for me) then giving JEM parental rights isn’t necessarily the right solution. Remember that I think the assignment of parental rights (as a general matter) should be tied to over-arching concerns about what is best for children. We shouldn’t assign parental rights as a remedy for harm done to the adults in the picture.
(A critical note: I do not mean that in each case we should determine who is a parent by considering what is best for the particular child involved. I mean that the general rules for parentage should be developed with an eye towards the interests of children. There is an absolutely critical distinction here. If it’s not clear then it warrants its own discussion in a separate thread. There are other relevant post on the blog.)
It might be easier to make my point by sketching the opposing view. If you think the child here is harmed by the loss of the parental relationship with JEM, then the remedy is to recognize that relationship. It’s a good fit and a pretty straight-forward solution. But without the assumption that it is generally good for children to be raised by those genetically related to them, this solution doesn’t come so easily.
I don’t mean to diminish the harm done to JEM, nor do I mean to suggest that adults don’t have rights, too. It just struck me, as I thought about this case, that I was really pained by the treatment of JEM–something I suspect I have in common with many of you–but not because I thought it would do terrible harm to the child–something I do not have in common with many of you.
Of course this means for me the next hard question is what sort of remedy you can have that isn’t the award of parental rights. I’ll need to think about that.