I started this thread yesterday and though I know there are comments I haven’t looked at yet, I wanted to get back to it. I have a feeling I haven’t explained my thinking terribly clearly (partly because it isn’t very clear and partly just because I didn’t get the writing right). So it seems like I should try again.
First, a couple of posts back, I tried to establish that there are two categories of parents–original parents (I’d call them, I guess) and step-parents. To my mind, step-parents are people who come along later–who aren’t there from the get-go. Now I think I referred to some of those original parents as second parents, which probably wasn’t a great choice, but I’ll stay with that. Second parents are perhaps most often lesbian co-mothers, but they could be male, partners, too. Perhaps even husbands of women who give birth are second-parents.
The key point to carry from that post is just that I wanted to describe two categories of people who have parent-like relationships with children–original parents and step-parents. And the critical feature of step-parents (as I want to use the term) is that they enter the picture later in the life of the child. This is part of my set-up for the next post–the one from yesterday.
In yesterday’s post I looked at the concurrence in the NM case (Chatterjee vs. King) that was the subject of the earlier post. The concurring justice seems to be concerned that the de facto parent/holding out rule will apply not only to those who might be original parents (typically in the second-parent position) but also to step-parents.
There’s a long hypothetical taken from the opinion that I included in my post. (I won’t requote, but you can go read it.) I think what the judge is suggesting is that you might not want the same de facto/holding out test to apply to step-parents and to original parents. Chatterjee, in his view, is an original parent case and he’d limit the holding, I think.
Now, what I want to do here is focus on the question raised by the concurrence: Should the same rules of parentage based on de facto/holding out apply to original parents and step-parents. And if not, why not?
This is a difficult question. As a general matter, if the rational for a de facto parentage standard is that it reflects the child’s lived reality (and I think that is the best rational), then why wouldn’t that extend to step-parents. I mean, if a step-parent has really played the role (social/psychological/emotional) of parent for some period of time, why would you decline to extend recognition to that person based on the sequence of events–the fact that the step-parent wasn’t there originally?
But then there is the “on the other hand.” I am supportive of single mothers and protective of the right of women to choose to be single mothers. The hypothetical sketched by Judge Bosson in yesterday’s post shows how the de facto/holding out doctrines can lead to an erosion of the rights of single mothers. Man (as he is called in the hypothetical) gains power of Mother when he is able to claim parental rights via holding out or de facto status.
Ultimately this may be one of those places where one needs to think about how to strike a balance. Is consistency in application of de facto parentage/holding out important enough to override concerns about the autonomy of single mothers? Or is there a principled way to limit the application of de facto/holding out so that you can preserve the autonomy?
In considering these questions, I think it is important to think through the doctrines as they might apply. Crafting the doctrines carefully will can minimize the conflicts and/or ensure the best balance. So, for instance, as I know some have suggested perhaps the bar for de facto parentage/holding out needs to be set reasonably high. (Historically holding out has been a relatively low bar while de facto has been a high one, but one thing the NM opinion presages is the convergence of the two doctrines.)
I can only start in on this here. Who should be able to claim holding out/de facto status? Not a passing romantic interest. Not someone Mother has been dating for a few weeks or months–that seems clear. Indeed, the focus shouldn’t be on the duration of the relationship between the adults at all. The focus needs to be on the relationship between the new romantic partner and the child.
Without going into a detailed consideration (which I do hope to get to) let me cut to where I think I’m heading. If a mother allows the creation of a developed parent/child relationship between her child and her romantic partner (and possibly anyone else) then perhaps she has to accept that this constrains her autonomy. At the outset the mother, as sole parent, has authority to determine who the child spends time with. But once you make your choices on this point, perhaps you have to live with them. If you create a particular reality of family life for the child, then you’ve made your choice.
More to come.