There’s Nothing Like Parenthood And That’s The Problem

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.


10 responses to “There’s Nothing Like Parenthood And That’s The Problem

  1. Clearly the mother found him unsuitable. Perhaps she thought he would be bad for the child. Perhaps she wanted no further connection with him because he had shown himself to be an awful person to her. Whatever her reasons are, when this kid gets old enough to find out what she did, he or she will hate her and not grasp her reasons, especially if the guy dies before the kid has a chance to make up his/her own mind.

    • Given that we don’t know the facts I’m not willing to agree that the child will hate her. Imagine that she had very good reasons for wher actions (which for all we know she did). It’s the possible that the child would be grateful to her for protecting him/her.

      It’s also possible that if the adoption held, the adoptive parents would include the bio father as a person in the child’s life–just not as a legal parent. This, too, might change how the child would feel.

      I don’t say this because I know either of these things to be true but rather to highlight the things we do not know. I think it’s hard to predict the future under these circumstances.

      • What you know is that the mother presented no evidence of her good reasons that the child would thank her for. This is where I get a little concerned that you think giving birth makes a child a woman’s property to do with as she pleases without any regard for the fact that she is trying to prevent her child from receiving the support that most normal mothers want their children to have. Mother’s are not allowed to waive their children’s right to support from their fathers and I believe I can find instances of that where they were not allowed to waive their children’s right to support from as of yet unnamed fathers – that is why state’s have procedures for trying to find fathers prior to adoptions and prior to giving mother’s welfare. So sorry if your trying to say that she has a right to waive the support of a father who is not legally recognized yet because at least in my state you’d be wrong. Even in Arkansas, there are procedures for having to let the unnamed father know – they may be tiny and and crappy and designed to go around him, but they do acknowledge the rights of the unnamed father.

        No what I think? I think this may hit a little close to home for you. I know that everyone is different. In my experience people are very very loyal to whoever raised them whether those people are good or bad at being parents it seems to make no difference. They do, treat the fact that they are the offspring of a donor as no big deal and just part of their story and they won’t think of the donor’s other offspring as their siblings, (but they’ll know his other offspring are their siblings whether they think of them that way or not and they’ll know the donor is their father whether they think of him that way or not – there is science to contend with and thoughts to keep science at bay). If you think it has not crossed their minds that the donor probably would be more careful choosing a baby sitter for his neighbors child than he was in selecting people to raise his own offspring it puts the whole father thing in perspective; what would a decent person do if charged with finding a home for a child that was not theirs (and we know the donors offspring are not his children right?) He has the choice to reproduce or not and since he chose to reproduce he has a choice of raising his offspring or not and since he chose not to raise his offspring did he give any real thought to who would? If you think that thought never occurs to donor offspring, even very loyal donor offspring, you might be wrong. If you think it never occurs to loyal donor offspring that other mothers want their children to be supported by their biological fathers and would not want their biological father’s family to ostracism their kid – why did their mothers want them not to know their genetic family? Problem is people raising these kids don’t get real straight answers even if they have very open honest relationships with their kids because the kids love them too much to say anything to hurt them. It would take years of conditioning in the opposite direction I think before they’d ever say it kinda sucks what the hell were you thinking when you made me? Only one person I’m helping is really out about it to their social family or their mother and it is not going well.

    • See now I have said the very same thing in the past. I agree Jan Hall that the kid is going to hate her for thwarting their father’s efforts to take care of his child the way he is suppose to. If he was really that bad she would have been able to prove him unfit in court with his history of convictions for child molestation and domestic battery. Since she did not even try – did not even try – to prove him unfit, my money is on the fact that she’s got a God complex like so many women do thinking that its her baby her property her decision. Yes the kid will hate her in that passive aggressive way people don’t bite the hand that fed them. They wait until she dies and hope its not too late to find their fathers. That is where I usually come in. Or the mom is alive but we do everything behind her back.

      • I’m going to try to respond to this comment and at the same time cover at least one other that raises a similar theme. I should start by saying that I do not know the particulars of Arkansas law, but I know enough about law generally to think that I am right.

        The woman who gave birth here would have had neither reason nor opportunity to say anything about her motives or about JEM. Given the structure of law in Arkansas, all she needed to do was sign off on the adoption. Once that is done her part is over. She very likely has no further role in the case. She has surrendered her rights. Any good lawyer would counsel her to make this as simple as possible–and given Arkansas law, that’s pretty simple. She’d gain nothing by trying to make a record of what the man was like. And most judges wouldn’t allow her to do so. All that would lead to is a big fight about what would be called “collateral matters”–collateral because they would not bear on the question of whether the man’s consent was needed. Thus, I think we cannot draw any conclusions at all from the fact that she apparently made no allegations of any kind about any of the details of the relationship or the man.

        I don’t know that I can emphasize this point enough. What you get to show in court and what you are motivated to show in court is defined by the relevant law. The relevant law here (by which I mean the statute) said that the only important facts were those about the actual relationship the man had with the child. In that context, failing to produce other evidence of different facts is exactly what I’d expect no matter what. I just don’t think we can assume the worst of her because the record is silent. We can only assume she did what the law guided her to do.

        • Then in fighting him the prospective adoptive parents would not have been able to present his record as a registered sex offender who is not allowed to be within 50 feet of a school? If that were the case?

          • I think that is right. I realize it might seem ridiculous (and for that very reason you might be able to convince a judge to do something else) but analytically it is a multistep inquiry and each step is totally independant.

            So question 1 is “did he do the things needed to put him in the category of people requiring notice (which means people who are legal parents, I think). If no, stop and reject his claim. Nothing else matters.

            If yes, then you go on to question 2–is he a fit parent? That’s where your sex offender information comes in. Maybe it means he is unfit and so gets limited parental rights or even that we terminat his rights. But it doesn’t prevent him from qualifying initially.

            To put this differently (and I think I can say this generally) initial qualification as a legal parent does not depend on fitness. Whether you get to actually act as a parent does, but that comes later.

  2. Julie – if I was to stretch to your view that genetics doesn’t matter – I’m honestly trying here – and that the best interests of the child is really all that matters. I still circle back to the fact that I can fault the AP’s in this to the degree that I believe their moral compass may not make them the best parents for this child. They knew from the get go the father wanted to parent and had jumped through every hoop the mother through at him. I know you can assume it is the genetic relation but morally he was the child’s father at birth even if he still had to legally establish his legal father status.

    I also circle back to the knowledge that my parents would not have done that and I have facts to back that up. Their moral and ethical standards were woven into the fabic of everything they did. Those are the type of parents who could be deemed suitable for “best interests of the child”.

    At this point in the process for the Akansas father – the child is 18 months old – tough call – but morally suitable to be considered “in the best interests of the child”…pushing it.

    We also know that the father did not raise any red flags as pointed out in the ruling as they noted that when comparing another case where the father had issues. That is relevant. What isn’t relevant is the mother being spiteful or not liking him for whatever laundry list she has.

    • I don’t mean to set up genetics and the best interests of the child (BIC) in opposition. I want to put them on different levels. I think the bottom line question in picking a test for parentage ought to be–at least in part–what test will work best for children. Note that I ask this as a broad and general question, not an individualized question focused on any specific child. Note, too, that I think I have to concede at the get go that no general test will work in all cases and there will always be some bad cases/bad outcomes, no matter what test I choose.

      If I set out that basic goal–what test will work best for children–then I can look at the various possible tests and measure them against my goal. Does test 1 serve my goal? How and why? When will if fail? How and why? And so I would ask “how does using a genetic relationship test serve the best interests of the child?” And I’d compare it to the other possible tests.

      I guess what I mean is that I’m not saying that genetics doesn’t matter. I’m asking how it connects to the best interests of the child and the assignment of legal parentage. I am largely persuaded–by long conversations here–that genetic connection does and should matter in some ways–but perhaps not for legal parentage.

      Now all that said, I am inclined to agree that at the very least some questions can be raised about the behavior of the adopting parents here. I do not know what they knew about JEM, but you are right that they must have known he existed and was interested in having a voice here. I can speculate about lots of possibilities. If he was, say, a really bad guy then maybe this seemed like the best way forward. But of course, we don’t know that.

      Which leads me to a word about what we do not know and why (and at least one other comment has raised this, too). The way this case was litigated it may well be that there was never any chance for anyone to prove anything about the specifics of the people involved. The law appears to me to say that he had to do a certain thing by a certain time. Thus, the court could say that the only thing it had to do was decide whether he did it or not. He didn’t. He responded by pointing to other things he did do. The court had to decide whether these other things were enough. It decided they were.

      It’s in the nature of judges and courts to limit evidence to that relevant to the actual questions. Nowhere here is his suitability as a parent important. So it could well be that no one was allowed to discuss it at all. This might explain why we don’t know anything at all about it.

  3. Arggg. The 2nd to the last paragraph I should have stated I was speaking to the AP’s.

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