A Parent in Fact But Not In Law

There’s a story in today’s NYT that reminds me of a couple of others I have blogged about here.   They are all slight variations on the same theme, I think.

Jonathan Sporn and Leann Leutner were a long-time but unmarried couple.  (The unmarried part turns out to be critical.)  They wanted to start a family but had trouble conceiving.  They ended up using IVF and (also critically) sperm from a third-party.   Lincoln Amory Aurelian Sporn Leutner was born last July.

Sadly, Leutner died January 1.   Now the question is what becomes of Lincoln.   The child is in foster care and is deemed to be “destitute” in the eyes of New York State. While Sporn wants to raise the child in his home, Leutner’s sister, Susan Sylvester, also wants to raise the child. (She lives in Illinois and there is no information about how involved in the child’s life she might have been.)

Lincoln lived with Sporn and Leunter his entire life, and it seems fairly clear that Sporn had functioned as a parent for that time.   But that doesn’t seem to matter under NY law.   Sporn doesn’t register as a legal parent.

Of course, if Sporn and Leutner had been married, Sporn would be a legal father–even if he didn’t want to be one.   (You can see how that plays out in the Engelking case I talked about in an earlier post.)   And if he’d been the source of the sperm he’d probably be okay, too.    (That’s akin to what happened in a recent Virginia case, also the subject of discussion here.)   Now in both of those cases the men had psychological/social relationships with the children–as Sporn did here.  But from a legal standpoint, those relationships didn’t matter at all.   The existence of these relationships matter to me and so I would see all three cases as quite similar–each of these men ought to be recognized as a legal parent–but that’s not the way the law is.

Sporn and Leutner weren’t married and Sporn isn’t genetically related.   That’s all the law seems to notice.   Surely there were other ways he might have become a legal parent–he could have adopted the child, for instance.   But he didn’t do that, or maybe they just hadn’t gotten around to it yet.   Bonded though he may be, the law does not give him any status beyond that of a legal stranger.

And here, I think, the law fails children.   It’s hardly Lincoln’s fault that his parents didn’t marry or that they didn’t sign the right forms.   And yet here he stands to lose the one remaining real, hands-on and very likely psychological parent that he has because they didn’t do those things.   I’ll try to keep a watch out on this case.   There’s a hearing scheduled for March.  Apparently the judge understands that speed really does matter here–after all, for the time being Lincoln is in foster care and I guess everyone knows that’s not a permanent arrangement.




44 responses to “A Parent in Fact But Not In Law

  1. I’m guessing the woman didn’t leave a will with instructions on who she wanted to have custody either?

    • How much significance does a will have in custody cases?
      I think the judges take it into account but they are not required to abide by it. After all a child is not property to be willed this way or that way.
      The signfiicance of the will is more likely the effect that it would have on her family- if they had it in black and white they would be more likely perhaps not to interfere and to support the choice the mother had made during her lifetime.
      Still its unlikely they had a will- they don’t seem to have been very mindful of paperwork.

      • I think unless the person named in the will is unfit they will usually get custody. I’m not sure the exact standard in every state, though.

    • Naming someone in a will doesn’t usually have any direct legal effect. Children are not property and cannot be devised or bequeathed. On the other hand, it is potential evidence of intent–it shows something about what the deceased wanted. And that might matter in some cases.

      I suspect it matters less here. It seems clear that the two adults were raising the child in a fairly traditional man/woman couple household, except for the fact that they weren’t married. There may be more to the story than is in the paper, but I wonder what argument the sister is offering.

      • In general, what rights do the kin of the deceased have to claim custody?

        • I’m not sure there is a general answer to this. People can seek custody and I would guess that many courts give some preference to relatives over non-relatives. But I don’t think there’s any set hierarchy and it will really depend on specifics. A person the child has a substantial relationship with probably has an edge over someone they don’t have a relaionship with, assuming everyone is capable, competent, etc. But I don’t know for sure.

  2. The thing thats most mind boggling to me is that they took the kid out of its home and put the kid in foster care. How does that make sense?
    Even if the aunt would eventually get custody, what does putting the kid in foster care accomplish here and now??? Crazy. Poor kid.

    • If I’m reading it correctly, the mother took the baby and left a very short time (I think it was less than a month?) before she died.

    • I think the child ended up in foster care because he had been with Lautner when she died. The state took him into custody and then had to figure out where to place him. They’d look for legal parents at that moment. If Lincoln had been living with Sport at the time Lautner died I’d say it would be less likely that the state would have swooped in and taken him away, even if legal proceedings commenced. But because of the way things did unfold Lincoln was in state custody and they had to put him somewhere and they couldn’t find a legally recognizable parent. That’s what law does for you, eh?

      I totally agree that if you take a step back, the foster care solution seems kind of crazy and hardly beneficial to the child. But the state just had no basis to choose any one person at that moment and so they chose no one–which means foster care–while the courts sort out who is the right choice.

  3. The fact of this case is that it pits the step parent not against the biological parent (in which I would side against him) but against the against the extended kin.
    It seems that it doesn’t make a difference here though. I’m not sure what to make of that. In my opinion the step parent should have some standing in this situation at least enough to rule on the case on a best- interest basis.

    • I’m reminded again that we have very different ideas about what makes a person a step-parent. Actually, I’m not entirely sure what leads you to call Sporn a step-paernt. Would you call Sporn a step-parent if Leutner and Sporn had been married? If the essence of step-parentness is genetics than I suppose you would.

      I think of step-parentness as being about timing. Step-parents come along later in a child’s life–they aren’t there at the beginning but are added to an existing parent/child family. Using that definition he’s not a step-parent, because whatever the later facts I think we can agree he was there from the beginning.

      • Is timing really the issue? what would your reaction be if a man had cared for the child from age 3 months to 1 year?

        as for me I am using the term step parent in a legal sense by which I mean a step parent is not a legal parental status at all. their parental relationship is dependent on their relationship’s other parent and on that parent’s approval.

        There is another category that I would call a statutory parent, by which i mean a parent who has an equal legal parental status on his own, by virtue of a statute, and not a blood kinship. If they were legally married, perhaps it would fall under this category. Or if he had completed an adoption, or a VAP or something like that.

        I am not sure if these options were available to Sporn. In any case, in my view, a step parent should have more protections than they do now, but they should not be able to override the primary parent. A parent who delegates some of her parental authority can not be said to have given it entirely and forever, unless she actually took the legal steps to do so.

        What is the status of a legal guardian in these circumstances? Correct me if I am wrong- I think a guardian has full parental authority? Is that subject to the first parents authority or not? Does it extend after death? How does it differ from adoption.

        My understanding is that your view is that any person who has behaved as such should become a statutory parent whether or not he or she took the necessary steps to do so. Or is that only a person who acted in that role since birth? Or declared intent before birth?

        My last comment is somewhat off topic- the daily article repeatedly emphasized Sporn’s wealth and connections. I found that irksome, but on the other hand will his wealth and connections prove to be the key to his winning the case?

        • These are good questions that I was thinking about before you wrote. I’m thinking about a main post to address some of them–particularly your initial question.

          I think your typology is interesting–the category statutory parent. If I understand it, some statutory parents are not genetic parents and some genetic parents are not statuory parents, right? What I’m not sure I understand is the connection between statutory parents and legal parents. It seems like all statutory parents are (by definition) legal parents. Are there legal parents who are not statutory parents? Or are the terms synonymous?

          I do see that given your working definition, Sporn is a step-parent. But if he’d done whatever was required to become a legal parent, then he wouldn’t be a step parent in your view, right?

          I don’t think he could do a VAP because in that you have to assert you are the genetic parent and he knew he was not. Just for what it is worth.

          I confess to being a bit fuzzy on the what I think about de facto parentage. Basically, yes–I think recognition as a legal parent should turn on the actual relationships between the people involved rather than whether specific pieces of paper were filed. I care less for intent than for performance, too. I’ve heard “I plan to….” without any real follow up too many times. But there are very hard questions–how do you have to act, for how long, at what point in a child’s life and so on–that I haven’t really grappled with here. I suspect that isn’t satisfying and perhaps I should write more about the slippery detail questions. But I don’t want to abandon the general idea because the details are hard to work out.

          I share your sentiments about the wealth/connections. That seems to be what the papers think make it tragic and that’s really annoying.

      • the origin of the relationship Matters though Julie. If you do a great job of raising a child you kidnapped – bully for you but your legal recognition as parent shold end when the kidnapping ends. If your legal recognition as parent was solely because you were married to one of the child’s bio parents then your legal recognition as parent should end when the marriage ends. If your legal recognition as parent came through paying someone to abandon their offspring for you then your relationship as parent should end as soon as it is discovered that a human being was the object of a private contract for control and custody. If your legal recognition as parent stems from the fact that you caused the existence of a human being that while minor requires care then your legal recognition as parent should last as long as you are the source of that persons existence.

        The nature of a step parent relationship is to say that their connection to the child is only because of their marriage or relationship with one of the parents. They would not be a legally recognized parent absent their romantic involvement with the other parent.

        • A person who has done nothing illegal, like a step parent, are not equal to the parent but should have the relationship protected on a Best Interest Basis.

        • What matters to me are the “whys” that go with each of these conclusions.

          I agree that if you kidnap the child and then do a terrific job raising it, you don’t get to be the parent. (Remember the case about the woman who took the baby from the hospital in NYC?) But this, for me, is because there’s something more important than what is best for that individual child. I can easily imagine circumstances where you could argue it is better for the child to be left where the child is and I’d still say you don’t do it. Something bigger is at stake–abiding by legal rules. You cannot be rewarded like that for illegal activity.

          I think the second case you talk about is different. Imagine a man/woman who plan to have and have a child together. They live together, looking for all the world like a family, for 14 years. Then she dies. I would affirm his status as a legal father whether they were married or not, whether he was genetically related or not. The kid just lost one parent and I wouldn’t have the law take away the other. But of course, this is because I think the performance of the role of parent for all those years should make that person a legal parent, because from the child’s point of view, performance will be what matters.

  4. Heard they were separated at her death, and another interesting note is that Sporn is still married to an Alexandra Sporn…someone googled him and discovered this strange twist.

    • Since they weren’t legally together (by which I mean married), they probably weren’t legally separated, but they were living apart. Interesting that he was still married. That might be why he didn’t marry here–one is only allowed to be marry once at a time. I’m not sure it changes my view re: parenthood, though. Perhaps it does show that there is (as always) more to know.

      • i think it absolutely changes my mind about parenthood but I can’t put my finger on why. Because it makes him seem like less of a nice person? Because it raises questions about his true level of commitment to both this woman and her child?
        the daily article states that sporn encouraged her to forgo egg donation because he felt it important that the child be genetically hers. why didn’t he feel the same way about himself? could his other legal ties (even if he was not acting on them in day to day life) have something to do with that? hmm.

        • ps can you please post your source of knowledge of this marriage to alexandra sporn? not everything on google is current and up to date! In the meantime perhaps we should only relate to a potential other marriage as a hypothetetical situation!

        • so leaving this hypothetical- a person can have intentionally refrained from assuming legal parenthood. they might have wanted to have a legal “out.” if it fair for them to then turn around and say that since they acted as a legal parent, it doesn’t matter?
          do their original intentions matter?

          • Good question–I don’t think intentions should matter if you act in ways that are inconsistent with your intentions. So if you intend to be a parent but you completely fail to perform, then I would say you are not a parent. And if you don’t intend to be a parent at the beginning but you actually do function as a parent, then I’d go with the conduct. (It might mean you changed your mind.)

            I say this because I would prefer to deal with the actual lived reality of the children involved. They (the children) don’t know anything about the intentions expressed on various bits of paper. They know about what people actually do. It’s the old “actions speak louder than words” standard, I suppose.

        • If he remained married to someone else it is possible he did so for a good reason–in order to ensure insurance coverage for her, say. I have no idea, but I’m thinking about your point of him being less nice. I do think it would change how many people react, but for a whole lot of reasons about what we’d assume, I think.

          It might have been that it was possible for her to be genetically related but not possible for him to be and so he encouraged her to take advantage of that possiblity. No idea, really and perhaps it is unwise to guess.

  5. The mother moved to NJ from NYC (different state, different laws). The mother committed suicide after several prior attempts so there was obvious mental instability. Is his name on the birth certificate. If so biology does not matter even to extended family. He is the father!! JMHO

    • Good question about the birth certificate, though from a legal point of view, it doesn’t matter. Being on a birth certificate in a case like this is just evidence that this is what the people wanted to write on the birth certificate. It doesn’t make you a legal parent. (This is true generally, by the way. Lots of ways a person can end up on a birth certificate and not be a legal parent.)

      I wondered a bit about whether the difference between NY and NJ law would matter here. I think since she was in NJ for such a short time (is it a week or two?) probably NY law ends up mattering more, both for determining his legal status and for determining proper custody for the child. It is in fact playing out in a NY court and there doesn’t seem to be any reference to NJ law. I’m sure others who read the blog know more about this, though.

  6. Julie – about the BC – do you know what NY law states on acknowledgement of paternity i.e. is being named as the father on the BC which the mother must approve to be able to do so – good enough?

    I ask this because this is actually something that the UT Ct. of Appeals decided In re Adoption of R.M. January 31, 2013 UT App 27. That the unmarried father didn’t have to jump through the hoops of a putative father. I know surprising for Utah.

    Regardless, I agree it is sad for the babe to lose both parents.

    • I do not know NY law specifically (though perhaps I can check). IN general just being listed on BC with mother’s approval doesn’t do it, though. Should go read that UT case.

  7. I continue to be amazed that people do not take adequate steps to place themselves in the position of a legal parent. While I agree with Julie that it’s not the child’s fault, it is incredibly irresponsible on the part of the parents. I just don’t understand what drives parents to neglect this critical step.

    • it’s possible that originally he or she didn’t want; but how is one to know now? without following the rules all you end up with is he said, she said

    • It’s also possible that they didn’t know it would matter so much. I think that’s quite common. And there’s a lot to do those early days besides get a lawyer in to handle an adoption (if that’s what it would have taken.)

      • Since she was a lawyer herself she probably had a good idea what would matter or not. It was either intentional on her part (Note that she did leave the relationship), or she just didn’t get around to it, having been hospitalized for psychiatric issues not to mention general hecticness in taking care of a newborn.
        But none of that really matters because it’s all speculation. It just shows why, we can not simply accord legal status to people who made no effort to follow the procedures. We can speculate all we want but we do not know that the legal mother gave her consent to another person, it’s too bad for them.
        This is of course, only if you believe that the de facto parents right should not override the first parent. which I am not sure you agree with.

        But this brings us back to the alleged legal guardianship she signed. What is the value of legal guardianship as opposed to adoption?

  8. I can’t believe that what you think is unfair here is that this woman’s ex boyfriend was not named as her legal father.

    What is unfair is that her father was not named as her legal father.

    • some anonymous spermm donor some where is now patting himself on the back for “helping create a family.”
      the woman had a long psychiatric history before comitting suicide.

    • I know this is what would strike you but I think this misses the point I was trying to make. It appears from what we know that this man has functioned as the child’s father for virtually all of the child’s life. Now suddenly he is a legal stranger. This is not good. Losing him is not good for the child. And the fact that the result would have been different had they gotten married–tells us something about what weight the law places on marriage. Why should the child’s interest in having the relationship protected turn on whether or not the adults got married? Why shouldn’t it depend on what was real in the child’s life–what roles were actually played.

      This isn’t your point, I know. But married or not he would have no genetic relationship with the child. Take a step away from the issue you’re thinking about and think about this one? I think you’re just trying to be dismissive by calling him an “ex-boyfriend.” And that, too, tells us something about the centrality of marriage in our world view.

  9. See here it is the kid is a slave to whoever is willing to do the work of raising them they HAVE TO become that persons child when they really are not they are someone else’s child but they are handed around to whoever can prove they earned thenselves a tiny human

    • sorry this kid is being loved and cared for. no comparison to slave. yes, he was commodified before his birth.

      • i had to be a lot of things to my parents

      • Oh Ok Ki how about this some guy starts putting in time trying to take care of you wants you to be his wife and you don’t have a choice in the matter he’s simply the one whose done the most work and now all of a sudden you have his last name and your credit is all tied up with his and you need his permission to make decisions about the money you earn and suddenly your getting statements for bills that he ran up and everyone is telling you that you are his wife because he held you out as his wife and acted like he was your husband long enough that the law said you have no choice in the matter we won’t recognize you as who you really are any longer from now on your his wife and he is your husband and his kids are your kids not your step kids but your kids. You can never legally untether yourself from him cause its not like regular marriage where you can get divorced being his wife now consumes your whole identity nobody will recognize your other identity the one you should have a right to because its the truth and all your records have the wrong information. He’s very nice to you. Very generous. You have everything you want as long as it does not involve your original identity or truthful records or the right to know and be known to your family. He also paid and got you from your original husband. You had no choice and this is who you are now. Someone bought or earned the right to call you their wife. That is your job now your his wife every damn day of your life that is who you are because he worked harder at being good to you than your original husband did and your original husband sold you to him. He’s your husband he’s the one that owed it to you not to sell you he had the obligation but no, no body will even admit you were ever married to that other guy, you’ve always been this new guy’s wife, all the records say so and besides he’s the one that wants you. There is nowhere to leave to nowhere where anyone will call you by your real name you have no records you have no choice but to surrender and just be his wife, its not so bad it could be worse he could beat you.

        Freedom Ki just freedom to be who you really are without shame or appology. Every human being deserves to be recognized and accepted for who they actually are as a son or a daughter a brother or sister, aunt, uncle, grandparent, cousin niece or nephew to the people who they are actually related to at minimum before being handed off and made to serve someone else as their child.

        That is cool Ki you think it is OK to take away half a person’s rights and falsify their records so they cannot leave you ever – so long as you treat them real nice. That is just really lovely. Please how can we make your time having your rights violated a more pleasant experience for you? Anything we can do to muffle the whining and whimpering about your God Damned rights…you are not human offspring with real human rights, your donor offspring, and they have fewer rights. They are born with fewer rights so that nobody can be accused of violating rights they never had. The people who bought you want you why are you pining away for someone who just as soon sell you again than admit you exist, those people would be ashamed to give you the time of day. Love your master.”

        • spouses can not be confused with children.
          a marital relationship is entered into by virtue of consent. a parent child is not.
          I also had no more choice as to whether to be my the child of my biological parents.
          Both biological children and non biological children become independent of their parents/guardians at age 18. No difference there.
          All are free to choose whatever name they want.
          Not knowing who one’s parent is, does not infringe on any other human rights a person may have. “losing half their rights” is a gross exxaggeration.

    • Your ideas about chlidren/owndership/slavery are so very different from mine. Imagine someone undertaking the hard work of actually caring for a child, bonding with the child, and making a commitment to continue that role in the child’s life. This is what you call “enslaving the child?” I hardly see that. At the same time, you give the people with genetics absolute and invioble rights–they need not lift a finger or do anything at all but can exert control over the child. This seems a lot more like ownership to me. I know you think that the people with the genetic connection are entitled to do this–but it seems a great deal like saying a potter is entitled to do whatever she/he wants with a piece of ceramics she/he created.

      I know we are very far apart in how we see things, but occasionally I am struck by it. This is one of those occasions.

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