I’m continuing on a question I got to last time, though the real genesis of this line of discussion is further back. I won’t retrace all the steps as you can just go back and read them over. I’m thinking about a hypothetical (which I quoted in full) that was posed by the Justice Bosson in a concurring opinion in Chatterjee v King.
Put briefly, the question is why should we worry that a step-parent might get to claim rights as a de facto parent? (You could ask this same question about a foster parent. The discussion would perhaps be different so I will not include it here.) In the terms of the hypo from the concurrence, why should we worry that Man might claim rights to the child over Mother’s objections?
I’ll start by observing (as I did last time) that one thing we must do is make sure that the test for de facto parentage is constructed properly–that it is sufficiently demanding, but not too demanding. There’s nothing remotely easy about this. If you scroll down in the comments here you can see a post by TAO (who I think is The Adopted Ones) that discusses the definition of a de facto parent in New Zealand. I ‘m not saying that’s the perfect test, but it’s an example of the kind of test you do see for this. By contrast, the holding out test (which has historically been used for men only) is a much easier standard–and perhaps it is too easy. I’ll defer discussion of the precise content of the ideal de facto test for the moment. (You can poke around under the tag for “de facto” and find discussion elsewhere on the blog if you want to.)
In thinking about the hypothetical case, I want to consider two possibilities: One is that Man has made his claim for what Justice Bosson calls vindictive and extortionate reasons. The other is that Man’s motives are pure. Of course, reality is rarely so simple. People often act from a mixture of motivations and it’s quite possible to disagree about what motives are in any given case. But for the purposes of thinking about this, I want to keep it simple.
If Man is acting from a pure motive I take it this means he is acting from genuine concern for the child. Assuming Man is essentially acting rationally (which is different from having a pure motive–it means that there are objective reasons that could justify his actions given his pure motive) this means he has some established and substantial relationship with the child. It means that in his (reasonable) assessment the harm to the child from the termination of the relationship between Man and child is real.
Now as I’ve said, I do have concerns about the rights of single parents. (Kisrita rightly called me out on referring only to single mothers last time.) But that doesn’t mean that I think single parents get to do as they please. It’s hard for me to see how Man could have developed the required relationship with the child without the active support of Mother. It’s not like he was sneaking around and putting the child to bed, etc.
The whole idea of the de facto test is that it is grounded in reality rather than in form. And in reality, where a partner has developed a substantial parent-like relationship with the child it can only be because Mother agreed to let it happen. (Actually, it could happen without agreement if Mother is completely absent, but that’s hardly a stronger case for Mother’s rights.) So it seems to me that practically speaking, Mother gave up her exclusive rights. Is there a reason she should be able to snatch them back?
The other possibility is that Man’s motives are impure–vindictive or extortionate. This, I do see, is a problem. Legal proceedings can be used to harass and intimidate and the problem of men asserting abusive custody claims in your run-of-the-mill custody case is certainly one that is widely discussed.
There are two things I think about in considering the impure de facto claim. First, how common/likely will the abusive de facto parentage claim be. Keep in mind that before the claim is made, Man has no child support obligation. (This is why it is unlike the run-of-the-mill custody case I just referred to.) If he is successful in a de facto claim he will have a child support obligation. If he is acting from impure motives, will he really be willing to accept imposition of a child-support obligation? I suppose this is a question of how much he’s willing to pay (literally) to be vindictive.
Second is there any penalty for bringing a groundless de facto claim? If we included some sort of penalty, would that deter the vindictive Man? This actually brings my attention round to thinking about the process for making a de facto claim. The process can be designed to ensure that only claims that are well-supported can proceed. You minimize the risk to Mother’s rights if you only require a response to well-supported claim. A pure Man should be able to make this showing but a vindictive Man might not be.
I’m not yet ready to reach a definitive conclusion, but it seems to me that there are ways we can guard against the vindictive claims and I’m not sure we ought to worry about the pure ones, which means for the moment, I’m not inclined to worry about allowing step-parents to claim status as a de facto parent. What am I missing?