More About Mothers, Fathers and Moving

I am totally strapped for time this AM but want to put up at least a little bit of a post.  (A postette?)    I’m continuing the discussion from the last post (which was itself continued from the post before that) and if you’re just joining us, you might want to go back and read those.

First the news:   The McKenna Miller custody case was back in court yesterday.   According to this account (there are many to choose from), the judge awarded custody to McKenna (the mother) until the next hearing (December 9).   No indication of the basis for the award.    It’s also the case that after starting in the NY Times the case has become the subject of much wider discussion.    As is always the case, some of it is interesting/useful and some (to my mind, anyway) not so much.  I liked this essay, which I think makes some broader points.

There are many directions to go with the discussion at this point, but with little time I will just content myself with a couple of observations.     I think it might be useful to move away from the actual case because there are so many facts/details we do not know or which we know are disputed.   Although I’m interested in the case, I’m also interested in the general principles it illustrates and they may be better examined via hypotheticals (the much beloved creatures of law school.)

So imagine a woman and a man have a brief fling.  Nothing that is ever serious.   She gets pregnant.  He’s not interested.   Indeed, in time he moves on and takes up with someone else.    While she is still pregnant, she wants to move to a new place for one reason or another.  (I can imagine many.  She might want to be near supportive family.  She might have a good job opportunity.   She might want to go to school.  She might want to make a fresh start.   I’m sure there are many others.)  Does she need his permission?   (Surely if he doesn’t object, no one else can, right?)

I really hope that the answer to this has to be “no.”   She certainly has absolutely no basis to object to any move he might plan.   But you can see that there positions are not the same.  She is pregnant with the child they are both genetically related to.  He is not.

I do think this is all about power.   Who has the power to choose where she lives?   Does she or does he?   And no, it is not that he can actually keep her in place.  But he can put a very high price on her move–loss of custody of the child that hasn’t been born yet.  That may very well effectively encumber her.

And this is what I find disturbing about the emphasis on genetic linkages as the sine qua non of parentage.   If he has an interest it is solely because of the genetic connection.  It is not because of any relationship with anyone.

I understand that when she moves it may inconvenience him–he might have to travel, too, if he wants to live in the same town as the child.   But I think that’s a better solution than saying that she needs to accede to his request to stay.

The other point I want to make is about relocation cases generally.    This is a fine place to consider the difference between formal equality and actual equality.  The law reflects formal equality.   Take the case of A and B, separated parents of a child.   Suppose A has custody.

If A moves B may well have a right to object.    A court can consider whether to let A move while keeping custody.  After all, if A takes the child to the new place, it will interfere with B’s right to spend time with the child.   So A may be left with the choice to either give up custody and move or stay where they are.   B is free to move, though, since it won’t interfere in any way.

That’s all nicely gender neutral, right?   But what if were the case that A were much more likely to be the mother and B the father–I mean if we actually looked at the breakdown of the cases?   This means frequently women can only move if they give up custody  (or otherwise gain agreement from the father–perhaps be reducing claims for support?) while men are free to move as they will.   It means that the law will, in fact, frequently give men power over women–even though it looks neutral.

This is not an uncommon result when you map nicely neutral law on realities that aren’t neutral.  Women are still much more engaged in child care than men, still much more likely to seek and gain custody than men.

Does it matter if father’s use the mother’s attachment to the child as a way of controlling the mother?  It does to me.   Which means I want to know about how often this actually happens.   (If it is rare, then the value of neutral legal principles might be enough to outweigh the harm they do.)

I know this is a little more like a harangue and a little less finely crafted than I usually do.    But I’m on the fly and out door.



24 responses to “More About Mothers, Fathers and Moving

  1. Quick thoughts reading the recent posts on this subject.

    The father retained his parental rights by asserting paternity in California despite the mother giving birth in New York (i.e. he was not required to sign the putative father’s registry in NY).

    The father did not show an interest in the babe prenatally (i.e. doctor visits) and assuming he paid her no support – yet retained his parental rights.

    Either or both of the above would abolish his parental rights if adoption was the intent of the mother.

    The initial NY court was wrong in my opinion regarding the expectant mother moving (her right) – the court got it right in not stripping him of parental rights.

    Julie draws a line in the sand between the prenatal period and after birth in this case saying the father has no rights prenatal (I agree).

    I think both parents have equal rights after birth and decisions and actions after birth (whatever they are) must be agreed on, or, settled in court as equal parents.

    I’m just wondering how this case will impact contested adoption cases…

  2. “It means that the law will, in fact, frequently give men power over women–even though it looks neutral.”

    US law favors formal equality over substantive equality, and I think the people in power deliberately set up the laws in this way because it allows them to pretend that they are being neutral while perpetuating existing power imbalances. I think you are very right to be suspicious of gamete primacy in questions about parental rights and custody. The only way in which the mother and father are similarly situated is in gamete contribution. Formal equality requires that the differences between them be ignored or minimized, i.e. the pregnancy, breastfeeding, investment in childcare, emotional bonding should be ignored or not considered significant in terms of equal treatment under the law. Thus formal equality perpetuates substantive inequality.

  3. “And this is what I find disturbing about the emphasis on genetic linkages as the sine qua non of parentage. If he has an interest it is solely because of the genetic connection. It is not because of any relationship with anyone.”

    Julie y’all are making up this term genetic linkage. When you have offspring you are related to them you have a relationship with them they are your responsibility to raise because you caused them to exist. Parental obligation arises from the fact that a person caused the dependent infant to exist. If they did not exist neither would the dependent infant. This is not a matter of sharing the same genes or someone’s twin would do just as well as them in terms of assigning parenthood. This is a matter of personal responsibility physically provable by virtue of genetic testing but it is not the genes that make it so it is the reproduction of the body of the parent that makes it so. Of course they have a relationship to the child even if they have no emotional ties to the other parent. Good grief how can you say they have no relationship or obligation to their own children? You reduce real parental obligation to nothing but genetic linkages as if some other person can just come waltzing in and take over as parent just because they happen to be screwing the mother. They will never do they will never suffice no matter how wonderful they are they were not the one responsible for causing the child to exist and it is not their responsibility to care for that child. Anything they do for the child will be above and beyond what should already be being done by the parents themselves. It is not a one for one trade out. It’s not possible

    • I may indeed be making up the term “genetic linkage” but I needed to use some words to express a context. Do you think there are other words I should use instead? I am not sure if that next sentence of yours is meant to be an alternative formulation.

      I agree that when you have offspring you are related to them–genetically related. The question is what to make (legally and socially) of that relationship. When you say “they are your responsibility” you are offering one possible answer to that question. One can say that those you are genetically related to are your responsibility. Indeed, often the law does say that. But it doesn’t always say that and (in my view) it shouldn’t always say that. You and I both know that this is where we disagree, I think.

      I understand the sentence about causation to be your argument for why we should answer the question as you suggest. I don’t find causation to be very persuasive, partly because I don’t see that the man who produces the sperm does always cause the child to come into being and partly because I think you could point to lots of people who cause a child to come into being.

      In the end, what you say here is your view of things rather than an absolute truth. The same is true of what I say–it’s my view of things. I just don’t think there is an absolute truth to be found, perhaps.

      • Instead of dancing in circles I’d like to get to the bottom of this issue of cause vs influence.

        Do you understand the difference between cause and influence? You are an attorney, surely you must understand the difference between being responsible for something happening and merely being an influencing factor. Being an accessory vs being guilty for instance.

        Lets really drill down here. I’m serious. If your mother did not exist you would not exist. She caused your existence. Let’s take a gestational carrier for instance. She surely helps develop a child but does she cause the child to exist? No. Another woman could just as easily have gestated the fetus; it did not have to be her in order for the resulting person to be born, to be the same person. She might be responsible for the environment that shapes the world view of the person she delivers, but she does not have to exist in order for that person to exist. She is merely an influencing factor. Let’s take two women that want to “have a child together”. They cannot have a child together but they can raise a child together. They can together raise one of their offspring. But the child would be created by that woman and whatever man she happened to reproduce with. You cannot say he did not cause his own offspring to exist. He wanted to have offspring otherwise he would not have signed up to create offspring with random women.

  4. so what are you saying exactly, that mothers should be given an edge over fathers in custody cases due to having been pregnant and given birth and most probably the bulks of the child care? if that’s what you mean, then why not out and say so instead of trying to make a case against genetic relationships.

    If it’s merely that this happened during the pregnancy thats upsetting you, well that court ruling was overturned thankfully, so seems like things will work out in that area .

    • by saying that “genetics is crap” you aren’t increasing the value of pregnancy.

      • How about genetics + pregnancy + breastfeeding + existing relationship + father indicated he didn’t want the baby?

        If a father gets custody simply because he can provide a “traditional married family” (but with a woman not related to the child), isn’t that a bit… unfair? Outdated?

    • No, this isn’t what I’m saying–or at least it isn’t what I meant to say. (I do think mothers and fathers need to be treated differently during the course of the pregnancy. I even think we may agree about that. But I won’t go further than that on this particular road.)

      Beyond that, here’s what I was thinking about: Once the child is born I think more should matter than just genetics. In particular, think the psychological/emotional relationship between the child and the adult should matter. I don’t think the invocation of genetics should entitle one to equal treatment if the other person, say, has genetics plus a functional parent/child relationship. I’m concerned that making genetics so important has the effect of diminishing the weight given to having an actual caring/functionally parental relationship with a child.

      Now it may be that in the grand scheme of things this means outcomes will more commonly favor mothers rather than fathers–because mothers are more likely to forge the necessary relationship with the child. (Please note that I said it MAY BE. it also may not be.) If this is the case it is not (in my view) because of any inherent differences between men and women, nor is it because women give birth/are pregnant.

      • i would agree that having the relationship is important but, it’s also critical to note WHY the genetic father doesn’t have a relationship (if indeed he does not). Is it because he doesn’t give a damn? or because he signed away his rights? Or Is it because he was being barred from that by the mother? If so, that should be a strike against the mother, not the father.

        • I think figuring out how to weigh the “why” question is tricky. On the one hand, if what I care about is protecting the existing relationships that sustain the child, maybe the “why” isn’t important. It might be very bad for a child to take them away from A (the only caretaker the child has known) and instead placing them in the custody B (unknown to the child.)

          On the other hand, if B isn’t involved because A froze B out (no matter what sexes are involved) then it seems wrong to reward A for A’s conduct. (This, by the way, is what I think the judge was thinking vis-à-vis Bode Miller’s case.)

          I’m not offering an answer–and perhaps it does depend on circumstances. We discussed this (in a different context) a long while back with regard to the David Goldman case.

          • “On the other hand, if B isn’t involved because A froze B out (no matter what sexes are involved) then it seems wrong to reward A for A’s conduct. (This, by the way, is what I think the judge was thinking vis-à-vis Bode Miller’s case.) ”

            Unfortunately, a lot of people, including judges, believe that unless the mother reorganizes her entire life around the whims and fancies of the father, she is “freezing” him out. This seems to be the thinking of the judge in the Bode Miller case.

      • OK Julie can you get where you want to be without undermining the person’s legal status and rights as kin within his or her own family? Because this is about far more than just the personal relationship between the child and his or her caregiver – that lasts at most 18 years. Do you see a way of maintaining the person’s total original biological identity and rights while simultaneously adding these other people into the mix? So so so much is lost when ever a person becomes the legal child of anyone but their biological family. This is a huge problem. How can they retain all their rights while still getting you whatever it is that you want?

      • Julie are you proposing to change a part of the constitution because my understanding is that is what you are suggesting in that it should not matter regarding the genetics.

        • Apologies if I misunderstood, but do you mean a constitution as in the U.S. Constitution? It’s the states that deal with family law and define the legal parents.

          • Tess – state laws still have to honor the constitution.

            • Tao,
              To which aspect of the US Constitution are you referring? The Constitution doesn’t comment on how to define legal parenthood.

              An adoption case (or other custody case) could not reach SCOTUS unless a federal issue was at play.

    • It may just be a biased gut feeling or pregnancy hormones, but something about giving a father sole custody of an infant with a mother who is not unfit feels wrong to me.

      • Rebecca – leaving genetics solely out of this statement because I wasn’t related to either…dad was who I formed the bond with as an infant and was the only one to calm me and I was the problem infant. Men are equally capable of loving and nurturing a child.

        • I wasn’t really thinking about adoption, just being pregnant right now, it seems cruel to take complete custody of an infant away from a fit mother after she gave birth to it – I guess I give some meaning to pregnancy. I don’t have the same negative gut reaction to shared custody.

          • I mentioned removing genetics because Julie is fond of that…
            Custody issues can always be messy – the sheer distance in this case (assuming he still lived in CA and she in NY) – makes assigning sole custody sensible. I may be wrong in my assumption but that does not equal barred access.

            I think it would be cruel to separate a mother and child right after birth – but I don’t see that shared custody is any better when there is such distance – I don’t think babies need to be flown back and forth willy-nilly to make the adults happy on a predefined schedule set by the courts like every two weeks the babe switches parents.

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