One of the comments on yesterday’s post raised an important question about how parentage via holding out works for step-parents. This is a question that arises as well with de facto parentage–a doctrine somewhat like holding out. It’s important and occupies the concurring opinion in the New Mexico case.
Before turning to that, though, there’s another point I’d like to raise. I’ll deal with this preliminary point in this post and turn to the holding out/step-parent problem in the next.
Here’s the thing: To my mind Chatterjee (the woman found to be a natural parent in the NM case) isn’t a step-parent. What does it mean to be a step-parent? I’m not a fan of resort to on-line dictionaries, but I’ll invoke one here. A step-parent is a person who marries someone who is already a parent and thereby enters into some sort of relationship with the child.
I think this pretty much reflects what most people think of as a step-parent–a spouse of your parent by a subsequent marriage. So if your mother marries, the new spouse is a step-parent. (Note that in same-sex marriage states, that could be either a step-mother or a step-father.)
Now you could, I suppose, say that since Chatterjee and King didn’t and couldn’t get married, Chatterjee couldn’t possibly be a step-parent. But I find this reasoning really unsatisfying. Whether or not you are a step-parent ought not (in my mind) to turn on whether you happen to be married or in a domestic partnership or in any sort of formalized union. (This actually echoes a point Justice Ginsberg made in her opinion in the social security case I wrote about not long ago.) The key (for me) is the substantive nature of the relationship, not the formalities. So with this in mind I’m going to skip over the marriage issue.
It seems to me that the idea at the heart of what a of step-parent is necessarily implies a certain order of things. First, there is a parent/child relationship and then, after that has been established, there is a new adult/adult relationship that bring the new adult in contact with the child. That new adult is the step-parent.
That’s not the order for Chatterjee and King. In their case first there was the adult/adult relationship and then a child was added to the family. That’s pretty much the standard family formation story–the one where a couple has (one way or another) children. There was no adult/child relationship before there was an adult/adult relationship. Thus, if Chatterjee is a parent, not a step-parent.
I do understand that King formed a legal relationship before Chatterjee did. But this doesn’t seem so important to me. What I care about is less the legal relationships than the social/psychological relationships. (This is rejecting the formalities in favor of the substance, as I did above in determining that the fact that Chatterjee and King couldn’t marry doesn’t mean that Chatterjee couldn’t be a step-parent.) And the ordering of social/psychological relationships is clear–first the relationship between the adults and then the adult couple formed relationships with the child.
I think there might be reasons to treat people who are parents differently from people who are step-parents. (This will lead me to the next post.) But in doing that you have to be clear about who is in which category and why. For my money, when a couple adds a child to their relationship as was the case here, neither is a step-parent.
One closing note: In some states a person in Chatterjee’s position could protect her rights by completing a second-parent adoption. (I’ve written about these.) A second-parent adoption is often analogized to a step-parent adoption because in both cases the addition of the second-parent doesn’t extinguish the rights of the first person. But that is extent of the analogy. There’s no general assertion that the lesbian partner doing a second-parent adoption is generally like a step-parent.