I know I often drop threads with representations that I’ll get back to them and then seem not to follow through. If it’s any consolation, I feel guilty about that. My intentions (and you all know what I think about intentions) are good, anyway.
Here I do want to go back and pick up this thread about the Arkansas unmarried father case. You might want to read through it, but the key points for me here are these: The unmarried father tried very hard to establish legal rights, consulting with lawyers and filing paperwork in four different states, but because of the actions of the mother, the unmarried father had no relationship with the child. I think the mother treated the father shabbily, to say the least. It does seem like he ought to have some sort of claim for “justice” (which I put in quotes because I’m not sure what it means in this context) from her.
Now the easy thing to imagine granting him by way of making him whole is status as a parent. There’s a way in which you might say that this is fitting, as she denied him of the right to claim that status by taking all those evasive actions. But, as I tried to suggest in the last post, I’m not persuaded that this is the right remedy. Remember, I do not start from the proposition that the child has a right to be raised by its biological parent(s). I don’t even start with the proposition that it best for the child to be raised by its biological parents. And I am committed to the idea that the law here should be shaped (in whole or in part) by our concern for/commitment to children.
All that is, I think, old news. I mean, I’ve said it before. Now I want to move on and talk about why this problem seems so difficult to me. (I know it isn’t hard if you just say the man is a legal father.) It’s the all/nothing nature of parenthood. I’ve written about this in other contexts and to some extent that’s the sentiment behind this post, too.
We’ve structured things (in law, but I wonder if in culture, too) so that you are either a parent (all in forever) or you are nothing close to a parent. In the name of strong parental rights there’s a huge drop-off in status (legal and cultural?) once you leave the “parent” category. I think of it as a plateau with sheer sides. (Is that a mesa or a butte?) You cannot really be a near-parent. You’re just all the way down on the bottom level with the babysitter and the aunts and uncles. You can have a loving and close relationship with the child, but it exists only at the whim of the parents.
Worse yet, there’s nothing I can think of you can be offered to make up for this. The common remedy in our system is money, of course. But offering money as compensation for loss of parental rights is offensive. We may do it sometimes (as when parents receive compensation for the tortious loss of a child), but that doesn’t mean it’s anything like an adequate remedy and surely no one thinks it is.
It’s this all/nothing, in/out structure that makes so many cases involving legal parentage difficult. You win or you lose. There’s no compromising, splitting the difference solution. (You can see how easy it is to do that with disputes about money, of course.)
So JEM is either a legal father or he’s not. If he’s not, maybe he’s owed something from SMB because of what she took for him, but I realize that anything I can suggest will be inadequate.
I don’t think this is an argument that he should therefore be recognized as a legal father. That remains (to my mind) an independent question that we’ve discussed at some length. But it does leave me in a quandary. I see that SMB acted in a way that was cruel and hurtful to JEM but I don’t have a good answer for what to do about it.
I’ve also got a tangential and unrelated point. I think for some people (and some courts) the fact that JEM tried to claim rights is legally important, but I think for other people it’s not really crucial. After all, if his claim lies in his genetic connection to the child then it is the same whether he takes action to claim the relationship or not.