Back To The Arkansas Case: Who Is Hurt and Why That Matters

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.

 

 

 

 

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41 responses to “Back To The Arkansas Case: Who Is Hurt and Why That Matters

  1. Julie,
    Just like the Mandez (sp?) case in Utah the courts hadn’t dealt with the reality that mothers fleeing states to thwart fathers rights in their legislation wording. That is what makes it inherently flawed. If the intent of any adoption legislation is the best interests of the child is to have a parent who wants to parent their child and is willing to prove that to a court of law by following any steps required – then they must deal with the realities that the mother may just act badly whether out of spite or not wanting to pay child support or whatever. There must be due process in the legislation.

    As to the final question – there must be the overwhelming right to a speedy trial which is awarded to criminals – but not fathers that want to parent and must go up the chain of judical benches to seek justice.

    • I totally agree with you on the last point–the speedy trial. Historically family law has been rather low status/low priority law. You know, criminal law is important because people go to jail. Commercial law is important because it is about contracts/money/business, but family law? It’s mushy and messy and all that. It’s often left for last. Which to my mind is unconscionable. Money is money and you can pay it today or tomorrow and if you figure in interest it often doesn’t make much difference. But time in the life of a child?

      The first point your raise suggests a different angle on these cases (at least, it suggests to to me). In these cases women have power and men do not. If the man wants to be a father and the woman is willing to let him, she can. (They could get married or whatever.) But if he wants to be and she doesn’t want him to be, then she has the upper hand. Especially in the face of laws like that in Arkansas–which seems to say he has to form a relationship with the child. Obviously she can prevent him from doing that–as was the case here.

      The registry evens the playing field–she cannot stop him from registering. But it looks to me like Arkansas didn’t want a level playing field.

      Anyway, this is a different way of thinking about it that brings other issues to the fore, I think.

  2. “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.”

    Wait, how could we possibly not make that assumption? I mean you might as well throw out the assumption that it is generally good for children to be fed and clothed.

    • I disagree with you. I think we can say it is good for children to be fed and clothed because we can prove that it is so. Without food children do not thrive.

      The question of who should raise children–who is best situated to raise a child is quite difference. Many commentors here do think that those who are genetically related do the best job, but it isn’t particularly obvious to me that this is true. Indeed, it’s quite clear that sometimes people who are genetically related are dreadful and hurtful parents.

      Other people advocate for intended parents or for those who have functioned as parents. There are arguments to be made for each of these categories. Some people will find some of the arguments more persuasive than others. But I think it’s fair to say they are arguments about assumptions. I’ve never seen any proof that those genetically related to children will be the best suited parents.

      I take it your position is that it is not an assumption but rather something that is true. But is there proof that it is true?

      • You said “generally.” No one says that bio-parents ALWAYS do the best job, that is your standard strawman argument again. We all agree that the state should protect children from abuse and neglect and strip parenting rights from bad parents, whether they are bio-parents or adoptive of foster parents. But generally, we should promote the idea that parents should care for their children, we shouldn’t say that it doesn’t matter who raises a kid or if parents are responsible for them or not.

        • I don’t think this is a straw man argument. When you make laws you frequently base them on generalizations–because they apply generally. (This is what makes court-made law distinctive–it is typically made in response to a specific case, and I’ve written about that, too, in various posts.)

          We need law (by which I mean a rule) to tell us who the legal parents of a child are. In order to make that law, you need to have a clue of what your goal is. I suggest my goal is to enhance the well-being of children.

          So with that goal in mind, what should the law/rule be? Well, one possiblity is that the legal parents should be the genetic parents. (I’m happy to concede that genetic parents are not defined by law but by nature.) There are also other possiblities. For instance, you could pick people who intend to be the parent of the child. Sometimes those will be the genetic parents, but sometimes they won’t be. If they are not, then this law/rule would favor the intending people over the gentic parents. Or, at least when you are choosing retrospectively, you could choose pepole who have functioned as parents of a child, without regard to whether they are genetically related or not.

          The question then is which rule best advances the well-being of children, as opposed to other alternative rule. I don’t think it is obvious that genetic parents are generally better at being parents than are intending parents, say. Is there some proof?

          There’s nothing straw here. This is the difficult question that really lies at the heart of the blog. Why should it be one thing or another? What’s the justification you advance?

          • The well-being of children is enhanced by encouraging people to be responsible for their biological children and love their children as their descendents and posterity, more than we love random people. The well-being of children is enhanced by not wantonly creating children without being in a legally committed relationship with the person they are creating the child with (biologically). The well being of children is enhanced by opposing child-selling and the materialistic idea that children are owned by people who intentionally have them created. The well being of children is enhanced by seeing parents as more than nice people who feed and care for them, and seeing family as more than just the other people we happen to interact with.

            “We need law (by which I mean a rule) to tell us who the legal parents of a child are.”

            The rule should be that the woman who gives birth is assumed to be a legal parent and if she is married her husband the other legal parent. But even in that case, it’s no rule, it’s just the default assumption. Judges and authorities looking at the specifics of each case decide. And here is the straw man, you again imply that “the legal parents should be the genetic parents” as if someone was arguing such a rigid rule. But absolutely NO ONE ever says that progenitors should ALWAYS be the child’s legal guardians! Lots of us say that the progenitors should be recorded on the birth certificate, and even verified with DNA tests. But no one says that means they must be the legal guardians.

            • The rule you offer (woman who gives birth assumed legal parent, husband (wife?) also legal parent) is certainly a plausible one–and s one that is in use in a number of states. Not everyone agrees it is the best rule. There are people–people who comment here–who would say that woman is not the legal parent if she is not genetically related to the child. There are people who say she is the legal parent.

              It’s fine to say it’s up to a judge to decide but how is the judge supposed to do that? I see two general possibilities (but there may be more.) One is that you give the judge a list of criteria to use–or a list of priorities or something. So you say something like:”pick the woman who gives birth unless another woman comes along and says “but it was my egg” in which case you pick her.” The second is that you could say to the judge “do what you think is best in each case.” (Keep in mind that the question at this moment is who are the parents not where will the child live.) Many people worry a good deal about that second option as it can lead to chaos (different judges will have different ideas about what is “best” and so you can have the same case–think about the two women above–decided in different ways by different judges. It also may lead to the erosion of parental rights as any person could be displaced by any other person any time the judge thought the other person was “better.”

          • “For instance, you could pick people who intend to be the parent of the child.”

            I think we should rule out people who demonstrate even before a child is conceived that they think of children as property that can be intentionally created at the will of adults who desire to raise children. We should also rule out surrogates for the same reason. So when a child is born to a surrogate, we should bypass both the surrogate and the intending parents (even if they are biologically related) and place the child into foster care and the intending parents and surrogate in prison. Yes, the birth certificate should record the names of the progenitors, but the child should not be raised by them, they are unfit, they are all unfit.

      • And doesn’t the fact that people take an interest in knowing and being raised by their biological parents prove that there is harm when children are raised by other people? Not in every case, of course, and certainly not compared to the harm of bad biological parents, but sometimes, oftentimes, people want to know and be part of their biological family, so denying that this ever happens is harmful to children and society.

        • No, it does not. Being interested in your genetic lineage doesn’t imply that it is best (generally) for children to be raised by their genetic parents. It might get you to the conclusion that it is best for children to have information about those people. It might get you to the conclusion that it is best for people to be able to choose to have contact with genetic parents at some point. But I do not see that it leads to the conclusion that the genetic parents should be the legal parents.

          There’s a second question, too, which is how common the interest in knowing origins is. And I suppose while we figure out the answer to that we might also try to figure out what sort of contact/information most people want. I’m not sure if we know these things, either.

          • We know that people sometimes feel a loss and profound pain from being separated from their mother and father and siblings. We also know that sometimes people are better off not being raised by their mother and father and with their siblings. No is saying that genetic parents should be the legal parents in all cases. But we don’t just assign parenting to whoever says they can provide the most money and toys and best education, because we want to preserve the norm that people should raise their own children, and because society recognizes that taking every baby from their mother and assigning it to the richest and most qualified people to raise it would cause lots of pain to lots of people, far more than would be alleviated in the rare cases where bio-parents are unfit.

            And I’m not making a strawman argument here, because when you say we should throw out the assumption that bio-parents should raise their own children, you are saying that we should take every child and put them in a pool to be assigned to the best available parents, which hopefully you can see is ridiculous. If you aren’t saying that, then you aren’t throwing out the assumption. We should assume that the bio-parents should raise their own children and only when we have a good reason should we find other parents.

            • I totally agree that we cannot just assign legal parenthood to whoever has the most toys or lives in the best school district. This at least tells you one thing not to do.

              I guess for me the question is where do we start the conversation. You want (I think) to start with the assumption that biological parents should raise their own children. I hope that is not a straw man–I really am trying to just say what you said. I want to start (the conversation) without any assumption. I want to ask what assumption we should make.

              One possible assumption is that the biological parents should raise their own children. But why is that the right one or the better one to start with? If I have to start with an assumption, why not start with an assumption that the woman who gives birth will raise the child. (I actually think you suggested this in your earlier comment.) I know that these days the woman who gives birth might not be biologically related, of course, so which assumption I start with may matter.

              • “You want (I think) to start with the assumption that biological parents should raise their own children. I hope that is not a straw man–I really am trying to just say what you said.”

                That’s fair, that doesn’t make the straw man argument that genetics should always be used to assign parenthood, but only as the assumption, to be diverted from when required. I think we need that assumption to be healthy in order have a stable society that people care about living in, or as an early secular law says, “Honour thy father and thy mother: that thy days may be long upon the land.” I think to abandon that assumption means saying that all children should be taken from their mother in the hospital and give to the state to assign care givers for. If you aren’t going as far as saying that, then you are not throwing out the assumption like you say you are when you want to oppose it in a specific case.

                And egg donation and sperm donation or adultery certainly does throw a wrench in the simple assumption that the woman who gives birth and her husband are the biological parents and so should be the legal parents, which is why people are trying to prohibit those practices again. With such huge breaches of trust and honor going on in such a widespread and legal manner at the moment, it makes each individual case insignificant from a policy perspective. Any rules just paper over the inherent problems of extra-marital conception, and it’s better just to deal with each child in such a situation one by one and not to make people think it is legitimate.

                • I never meant to suggest that anyone proposed that a genetic parent should have an absolute right to be a legal parent. If it read that way, then I agree with you I set up a straw man. What I meant, though, is what you go on to say. That some people suggest a general presumption that a genetic parent is a legal parent. And now I see that this, too, could be ambiguous and confusing.

                  One position (and I think the one I meant to outline and dispute) is that there should be a general and across the board assumption that the genetic parent is the legal parent. This would be subject to a showing that the genetic parent is unfit, in which case they might lose parental rights. But they still start as a legal parent. I suppose you could even say that the fitness finding would have to take place before the assumption that the genetic parent was a legal parent fully matured, but this seems like a particularly bad idea as it seems to me it undoes the value of having a presumption in the first place. It means you’d need to confirm that all genetic parents were fit, I think.

                  A second position would be that there should be a basic presumption that a genetic parent is a legal parent, but that this presumption might be varied in certain circumstances. So, for instance, if people were using ARt maybe the presumption wouldn’t operate. I’d describe this as having carved out general exceptions to the presumption rather than doing it one case at a time. That’s actually also a description of the way the law is in some regards. The problem I have with this–which I haven’t discussed in quite some time–is that it means you have different sets of rules depending on how sperm gets to egg. (If sperm gets to egg via intercourse then go with genetics, if sperm gets to egg any other way, go with some other rule.) As I’ve discussed elsewhere, this seems really odd to me.

                  So it is that first position–that there should be a broad and general presumption that a genetic parent is a legal parent–that I meant to focus on. The question I have meant to discuss is what is the justification for such a presumption.

  3. And though I agree there needs to be some laws and statutes and precedents to provide a sense of normalcy and establish obligations and procedures, I don’t think statutes should ever trump a judge’s decision of how to resolve a particular custody dispute. The best interest of a child includes a need for a stable society and good order, and that includes reinforcing the assumption that parents ought to be responsible and care for their children. Otherwise we’d take kids away from poor people and make Bill and Melinda Gates raise them, because that’s in their best interest.

  4. It is in the interests children that we recognize genetic paternal relationships because otherwise ALL children are left with only one default parent.

    • Do you mean children will only have one default parent because there will only be the woman who gives birth? I’m going to assume so as I answer this, but if I have misunderstood then I’ll be heading off in the wrong direction .

      This is something that I think about a lot. Is it necessarily a bad thing? If a woman wants to be raising a child with someone else as legal coparent then that’s fine and we should set up a way for her to do that. But if she doesn’t want a second legal parent, should we always insist that there be one? Why? If it there isn’t a harmonious relationship between the two legal parents, will it be better for the child to have two?

      Is the real question financial support? I’m willing to consider separating financial support from legal parentage, if you recall. That means you might find someone liable for support but still just have the one default parent. And of course, there are all sorts of utopian (and totally unrealistic) ideas about the society generally providing adequate support for people raising children.

      • we’ve already argued about this.
        there are too many things objectionable about this very anti-men view.
        Basically it means that
        1)paternity is based on the whim of the mother.
        if she desires so, than he’s legally a father. if not, not.
        2) + its ok for her to exploit money from him for a child he ostensibly has no relationship with at all.
        the obligation to support is but a function of the parental relationship. It’s just that other intangible such as love can not be legislated.

        Other than that, yeah we do disagree on biology- Regarding genetic parenthood you may think its irrelevant but basically most of the rest of the world viscerally experiences it otherwise. It doesn’t have to be everyone for it to be valid.

  5. Harm can’t be proven where your looking for it and you know that. Harm can be proven in the inequity of laws that apply to some but not all people in a given situation. Harm is found in the creation of a second class of individuals that don’t have the same legal right to be supported physically and financially by their biological parents. Harm is found in some parents being made to stick it out and support their offspring whether they’ve built a relationship with the child or not, while others get off Scott free. Harm is found when some people that want to adopt are able to do so without the fathers consent while others can’t because the father is married and wants his wife to adopt the baby from the mother. Harm is found in a justice system that is so egregious that it would make a man support his offspring only if he was married to their mother at the time of their birth or only if his mistresses husband does not want to raise her bastard child. This is not about society upholding the ideal of marriage. This is not about the best interests of the child its about the best financial interests of a state that offers poor people financial assistance raising their families. When its the state’s job to make the call on parenthood they decide the matter based on how they can get a child two private sources of financial support to avoid footing the bill to keep the family together. The mother is young and not in a position to support her child and though the father may be in such a position it does not mean that legally she would not have to provide 50% of that child’s care so in the short term someone will be applying for food stamps or health coverage. If the father were married and she wanted to do a step parent adoption they would think he was the father then! If the mother wanted to keep the baby you can be sure his lack of relationship with the child would not be an obstacle to him being ordered to support his offspring. They would laugh him right out the court if he had a positive paternity test and tried to say he was not the father because he did not have a relationship with the child so therefore they should not make him pay. I am so sure. Inequity is the provable harm done. Everything else is just conjecture and cannot be proven. Which is why you love to focus on it.

    • It sounds as though you think the only harm that can be shown is that resulting from unequal treatment. Is that so? I think one can sometimes show harm in other situations that have nothing to do with inequality. (I’m not sure if you would agree or disagree.) Thus, I think you can make a case that there is generally harm when a substantial psychological/social parent/child relationship is terminated. I believe there is evidence to support this. That’s why I think you can make a case that the state should have an obligation to protect these relationships, which in turn supports defining “parent” in functional terms.

      I’d certainly agree that inequality is problematic, but as I think I’ve said before, inequality is a tricky topic. Equality principles mean treating people who are similarly situated in similar ways, but they don’t you have to treat people who are not similarly situated in similar ways. So that means you have to decide at the outset whether ways in which people are alike make them similarly situated and whether there was justification for treating them differently even though they were similarly situated in that regard. With this in mind, I’m not sure I really understand the equality argument you are making. Is it on behalf of the genetic fathers–some of whom have legal rights and some of whom do not? I think this will just take us back to the question of whether the similarity (genetic relatedness) is the sort of thing that mandates similar treatment (recognition as legal father). It will work slightly differently if we look at unfairness to the children, but I think it will loop back in the same way.

      • Oh lets go in a circle because there is no end and no final resolution so the song remains the same. “It sounds as though you think the only harm that can be shown is that resulting from unequal treatment. Is that so?” Oh no that is not the only harm that I see, but it is the only one that anyone can prove 100% of the time. Everything else is just conjecture. Nobody can prove that life would have been better if this or that had happened. Of Course one can sometimes show harm in other situations that don’t involve inequity – after the fact. Sometimes there is harm in infringing on someone’s rights even if there is no resulting damage like attempted murder for instance or conspiracy to commit murder. But proving harm comes from not getting to raise a child requires getting the court to believe you have a right to a child which nobody has a right to possession of another person so that argument is bound to fail. Which is why you like prodding people into to it. I get you, its clever and effective. That’s why people pay you to teach people how to be lawyers the logic is not lost on me.

        Your into the idea that you can’t miss what you never had. So a man was never legally recognized as the father won’t be missed by the child if he never gets to do the job of a father. Circular. Bunk.

        I can prove that men are obligated to support their children physically and financially based on positive paternity alone. Yes I can prove that. And I can prove that some men are not required to do that and I can prove that results in children not having equal rights to support from their biological fathers. It results in all kinds of people not having equal rights. There is a ripple effect when not everyone has to comply with the law it means that not everyone can rely upon having that law complied with. If you want to say that people are never responsible for the support of their own offspring then fine do it and do it across the board and see the harm that comes from that. The responsibility would have to fall to someone else universally in order for it to be fair and the only one that could be would be the government and that would be expensive to manage and really a bureaucratic nightmare. Harm.

        “That’s why I think you can make a case that the state should have an obligation to protect these relationships, which in turn supports defining “parent” in functional terms.”
        Ah the state does not have an obligation to protect the relationship it has an interest in not having to provide financial assistance to children from needy families. The state has an interest in protecting 2 private sources of support for every child and their opinion generally supports the 2 private sources of income model which is why he’s be the father if the mother wanted to keep the baby and was going on welfare or he’d be the father if he had a wife that wanted to adopt but not if he wants to keep the baby and she’d go on welfare. This method results in the child not having equal rights to support as children whose parents are just plain poor and keep their babies. You see money makes the world go round and they penalize people based on the chance they might seek the help that is legal for them to request.

        • I do think in the end we often return to our core difference–about the importance of the genetic link. But here I actually don’t think it is circular. I am still not entirely sure whether I mis-stated your position but if I did, I am sorry about it. Perhaps I should not try again.

          I think I disagree about what can and cannot be proven or perhaps I have not been clear. If I make an assertion (like that children are hurt when certain relationships are disrupted) then I can try to back it up with evidence that can be examined and tested. Of course in the end there will be people who will simply reject the evidence–I suppose there are still people who will insist that the sun goes round the earth–but I also think that some people can be persuaded by sound evidence.

          The thing about unequal treatment is that it may or may not be harmful. It may (in my view) be perfectly appropriate. For instance, I treat my 12 year old differently from my 16 year old. Believe me, I hear a great deal about unequal treatment. But I think unequal treatment is warranted when that four-year age gap is salient. Of course she can point to ways in which they are the same (they’re both in the general category of kids). The question is whether the sameness or the difference is more important to whatever I’m deciding. I don’t mean to disupte that unequal treatment can be harmful–obviously it can be and has been. What’s tricky is figuring out when unequal treatment is a problem and that, I think, is a challenge here.

          It looks like we might also disagree about what the state interest with regard to children is–and that is something I did not realize before. I’d say the state has (and probably should have) multiple interests. I think the state does have an interest in the well-being of children. I suppose I can ground that in two different ways. First, children are the future of the state. Hence public education–because the state needs an educated citizenry in the future. Second (and I’m a little leery of this one) children are defenseless and weak and so the state needs to check that they aren’t being abused. Now it makes sense to assign the detailed day to day care of individual children to individual grown-ups–those would be parents. But that doesn’t erase the state’s obligation. I think you ahve to have child welfare services and such like. None of this is to deny the financial interest you mention–which is why I think there are multiple interests.

          • Woah! Woah! Julie are you saying that all children belong to the state and that the state assigns each child a parent? Children have no parents unless the state says so?

            • Not at all. I am saying two things. First, that the state (which in this case stands for society generally) has an interest in the well-being of children. It is therefore legitimate for the state to take children from unfit parents and to mandate laws for the protection of children. It means that children are not entirely a private matter left to their parents.

              Second, consistent with that interest the state makes laws that define the rights and obligations of parents and that define which people are parents. In other words, the state–through the legislature or through judges–establishes definitions of legal parentage as well as the consequences of being in the category of legal parent. For instance here is the WA statute that governs when there is a (legal) parent/child relationship. http://apps.leg.wa.gov/RCW/default.aspx?cite=26.26.101

              Lurking somewhere in the background is the US Constitution (as well as the relevant state’s constitution.) All statutes in the US must comport with the Constitution. Thus, it’s possible to imagine that a state statute governing legal parenthood would be struck down as violative of the Constitution. That’s why this topic arises in this context sometimes. But as I’ve said before, the constitutional law in this area is really a mess.

              • OK but now your confusing me. When I have said that the state confirms parenthood because it is something people are whether its recognized or not. You say you “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 is it your contention that people are not obligated to support their offspring unless they are first recognized by the state as parents? Like say a couple hillbillies that had kid in the back woods, would it be legal for them to just let the baby starve even though they had not been named legal parents? In fact would’nt the state charge them with parental neglect if they discovered a situation like that? Even though at the time of the alleged crime neither was the legal parent of anyone? A man is the parent of his own offspring even before the state names him as father because we know men have been charged with parental abandonment and neglect that occurred prior to being confirmed to be the father. A man’s fatherhood precedes state recognition as father and you can see that all the time by the fact that men owe retroactive child support from before the DNA test proved that they were the father because they always were. Besides its not “the people with the genetic connection” or DNA that decides who is a parent. It is action that gives rise to the duty to support and protect the child and DNA alone has no action. That’s why they don’t just assign parentage to cousins or uncles or brothers; its not the DNA its the origin of the DNA that counts. Its not the genetic connection so much as genetic markers are like a trail of bread crumbs back to the person who is responsible for the child’s existence is responsible for managing that child’s existence until they are adults and if they cannot do that themselves its their responsibility as parents to dispatch those duties to another willing and qualified adult lest they be found derelict in their duty to the child and society at large.

                • I think you have basically stated my contention with this caveat. People are not (legally–I’m not speaking of morals here) obligated to support children uless they are recognized as legal parents. Now the way law is set up, that recognition often happens automatically, without action by a court. So for example, when a woman gives birth she is automatically recognized as a legal parent by state law (you can see that in the WA statutory structure.) Her husband (if any) and possibly her wife (if any) are also automatically recognized. No action is necessary to make this happen because of the way the law is set up. And that’s probably a good thing most of the time because who wants to add layers of complexity?

                  We should be clear that the reason it works this way is because the law says the woman who gives birth is a legal parent and she is the woman who gave birth. Thus it is operation of law even if it is automatic. So assuming your backwoods couple lived in a state with law like this the woman at least would be a legal parent. And I do think that virtually all states (if not all states–I’m not aware of any exceptions) have law like this.

                  As an aside, it is this automatic conferral of legal parenthood that creates such a pickle when it comes to unmarried fathers. You can see how it works for women who give birth–we know who they are and they know who they are. Ditto legal spouses. But if she isn’t married, how can we find someone who is automatically the father? You could go the DNA route, but that requires testing for DNA, so it isn’t automatic in the same way. If no man is tested, then maybe no man is father. This is, I think, part of why they now use voluntary affidavits of paternity (VAPs) so commonly–because then signing the form makes you legal parent and while that isn’t exactly automatic it’s pretty easy.

                  • No but your overlooking that as long as he could pass that dna test he is the father and is obligated to take care of his child. Note that the order of support is retroactive because he was the father before he took the test just because he is the origin of the child documented or not. The woman that gives birth would have to prove she gave birth in the back woods too. Is she the mother if she did and nobody saw her? Yes because the child originated from her and therefore she is responsible. Your over complicating again.

                    I still think your best route is to say when one of the parents is a donor and is let off scott free (I hate that) the parent doing the raising should have to declare it and if there is one on board name a stand in parent for that second source of support the state wants and marriage should not be the determining factor – consent should be. that and truth justice and the american way. those too.

                  • I want to focus first on your first sentence. I don’t think I am overlooking this because I’m not sure it’s actually true. As a statement of Arkansas law if you read the statutes, it is not accurate. Under Arkansas law DNA tests alone do not make him a legal father and do not give him an obligation to support the child. That, I think, is the whole problem with the Arkansas adoption scheme, isn’t it–that he didn’t get counted as a legal father.

                    It may be that what you mean is that as long as he could pass the DNA test he should be a legal father and should be obligated to take care of the child. I know that’s your view. It’s not my view.

                    Now it also true that there are circumstances where based purely on that DNA test he would have an obligation to support. (And since we do package them together, he’d also have legal status as a parent.) It may very well be unfair that under some circumstances DNA alone is enough and under other circumstances it isn’t enough. That’s an important question and I do not mean to ignore it. (You could make it even more unfair–he doesn’t get to control the circumstances under which DNA is enough.)

                    To say that one of the (biological) parents is a donor does (in places where being a donor means you are not a legal father) get you where I want to be, I think. It’s not exactly the language I’d use–I might say instead that the man should be treated like a donor. Then again, that might just be splitting hairs.

          • So you come home to find a huge muddy mess all over your carpet and your having dinner guests and if you don’t clean it it won’t get done in time. Your pretty sure its your younger kid because those are his shoes and socks and there goes his backpack and jacket on the couch.

            Now you are like the state and he is like the biological father of his own messy creation. Should he have cleaned up after himself automatically so that his mess did not become someone else’s anxiety attack or should he wait until he’s called out by you and assigned that job of cleaning up after himself? After all he might not be the best one for the job; the older one is much more detail oriented and efficient and would probably get it done right before the guests arrive.

            You could level with the elder child and say that they need to do it because it will get done better and faster. Or you could just blame the older child for the mess make them clean it up as if it really were their mess to clean. The older child could agree to take the fall for the younger child in exchange for money or maybe lying for them when they sneak out the window one night to hook up with friends. But really who should have cleaned up the mess?

  6. Julie you don’t really need to slaughter biological fatherhood do you? Can’t you just work on legislation where a single woman that gets inseminated with donor sperm can apply to get a willing second party to sign on as the other parent to provide that oh so desireable second source of support to keep that child from ever needing to go on welfare? That is in the state’s interest and sperm donation is not shutting down anytime soon. So long as the record says the father was a freaking donor and the second parent is signing on as a non genetic willing participant – come on think this through a little bit. Your a professor. The state does not really care of the 2 sources of support are married that is provable. Your thinking too across the board in equity your thinking that you’d have to kill dna as a determining factor that is lame look at all the kids who’d be harmed by that who would not receive financial support from their less than willing fathers. Oh don’t go there with that whole maybe they can be obligated to support with no parental rights bit of yours. Good luck did you want to get lesbian parenthood in your lifetime?

    • I hope I do not need to “slaughter” biological fatherhood, but I’m not sure what you mean by that. I don’t think you always need to have two legal parents, however. Biological fatherhood is (to my mind) a fact. It’s about a genetic connection. The question I ask is pretty much always the same–what does the law do with that fact. The answer (in the real world) turns out to be something like “it depends” as this Arkansas case shows. The answer in my perfect world is probably the same. Certainly some/many biological fathers will also be legal fathers but not all would be and those who are would not claim the rights of legal parenthood merely by relying on their status as biological fathers.

      It is true that I do not see why we have to have an invariable linkage between parental rights and child support. It seems to me that one theory for child support is that you are responsible for the natural and logical consquences of your acts. This is the “you break it, you pay for it” idea. Someone has to pay to raise the child and if you caused a child to come into being, perhaps you are responsible for associate costs. It’s a discrete task you’re assigning–you write a check, you’re done for now.

      But parental rights are about the control of the child’s life–deciding where the child will go to school, what the child will wear, who the child will see. Effective exercise of parental rights means establishing an intimate and long-term relationship with the child. I’d rather not assign them on the same basis and I don’t really see why we ought to. I’d rather give a little thought to who might do a good job and why.

      There are moments that I’ve thought we were actually coming somewhat closer to an agreement. I guess this isn’t one of them.

      • I care that you find a way to achieve what you want. I don’t think its unreasonable under the circumstances and I think my way gets you what you want faster than your way – which is about as likely to happen as my universal at birth dna testing.

        • Okay. I also care (and often wonder if I should care) about being consistent across various contexts. Sometimes the things I propose in one context lead to results I might not like in another context. (I’m not thinking of any specific occurance just now–only speaking generally.) At which point I do wonder about whether consistency is that important. BUt mostly I think it is.

      • “Biological fatherhood is (to my mind) a fact. It’s about a genetic connection.”

        Wrong. Biological fatherhood is about genetic origin. Lots of people have genetic connections but we don’t assign them the title of parent do we? The state does not assign any old random aunt or cousing the title of parent and they have a genetic connection. Genetics leads us to the parents the same as pregnancy leads us to to the mother and ultimately they lead us back to the creator, the person responsible the origin or source of the child in question. The person who is responsible for causing the situation is responsible for managing the outcome.

        Whether its better for the child to be raised with genetic family is neither here nor their its the job of the parents and the child should have the right to rely on that performance and nobody should have the right to interfere with performance of those duties unless the child is in grave physical danger in the care of his or her parent.s.

        • I see your objection–you are right–not everyone with a genetic connection is a parent. Poor language choice on my part. Biological parenthood is about a specific genetic relationship–it is about being the source of the gametes.

          On the second paragraph–as a matter of law it is not your job to raise a child unless you are the legal parent of that child. This is what legal parenthood means. This is why I keep coming back to that question. How is assigned the job by the state? What is the rationale for assigning it to one person and not another?

          I’m not positive about your first sentence in the second paragraph but I think you are asserting that it is the job of the parents–which I’ll agree with if you mean legal parents. And the child does have the right to rely on them. And the state shouldn’t interfere. But that doesn’t tell us who the legal parents are. It just tells us why knowing who they are matters a great deal.

          • Julie if raising the child is a job assigned by the state, it means that raising the child is the state’s responsibility and they are simply dispatching the duty to someone they feel is competent.

            You cannot assign someone to do something that is outside the limits of your authority. You can’t hire someone to go work for a company you don’t own to do a job you know nothing about.

          • parenthood existed long before the state

            • There’s so much to say about this one. If you mean that genetic or biological parenthood existed, then of course the answer is yes. If you mean that social or cultural or psychological parenthood existed, then it’s yes again. But legal parenthood? And there were probably religious and maybe even moral ideas about parenthood, too. (I’m never sure how much morality stands as a separate category from religion, but nevermind.)

              However, I’d suggest that before there was a state there was no law and thus no legal parenthood. No one owed legal obligations or had legal rights before there was law. And law comes with the state–it is made by legislatures or judges or governors or whatever.

              It is possible to take a different view–that law just exists out there. That’s a natural law stance and for most people, natural law means God’s law. If you do go the natural law route, then you have to explain how we mere mortals know what natural law is–what the set of rules it sets forth are.

              But to return to your comment–I guess I would say that with one qualification, I disagree–LEGAL parenthood did not exist before the state.

      • “I hope I do not need to slaughter biological fatherhood” why? Because its dead already…oh it never lived so you can’t kill it. Member a baby never lived either so you can’t have a pre-existing care giving relationship with it either.

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