Is De Facto Parentage Anti-Male?

This post grows out of an exchange in the comments on an earlier post.   Ki Sarita (not sure about how I should capitalize that) and I have been having an exchange about whether I (or perhaps more narrowly, my opinions?) are anti-male.   In fairness, I think Ki Sarita’s views here are based on far more than that one posting as she is a long-time reader/commenter here.  But I’m going to focus on that post (which is about a case involving a doctrine called “de facto parentage”) in order to make a few points.    I realize they may not address the full scope of Ki Sarita’s argument but I want to make what is perhaps a subsidiary point.   I’m also going to have to cover some background before getting to my point, so some of you may wish to skim ahead.

The idea in de facto parentage is that the law should recognize and protect existing psychological/social parent/child relationships.   De facto parentage is probably most important where a legal parent co-parents with someone who, for whatever reasons, doesn’t gain status as a legal parent in any other way.   (When I say two people “co-parent,” I mean they share responsibility for the child in the way countless two parent families do.)

So for example, the husband of a woman at the time she gives birth (or in some places a wife these days) doesn’t need de facto status because he/she can claim parentage via the marital presumption.   (Of course, that presumption, too, is controversial–but that’s is a different issue that has been and doubtless will be discussed elsewhere on the blog.)   But if the woman who gives birth is part of an unmarried couple, the unmarried partner cannot invoke that presumption.

Most of the legal developments in de facto parentage in the last twenty or so years has come in cases of lesbian couples.   In the simplest sort of case, the couple plans to have kids.   One woman gives birth–which makes her a legal parent.  They raise the children as co-equal parents for some years and then they split up.   The legal mother asserts that the non-legal mother (her former partner) has no status to seek time with the child.   It is in this setting that de facto parentage is often invokes–as a means for the non-legal mother to claim status as a legal mother.  You can find many cases and many posts here in which this is discussed.

In general the bar for qualification as a de facto parent has been set fairly high. You have to serve as a parent for a substantial period of time and you have to have a fairly substantial relationship with the child.  (Notice that neither of these requirements is imposed on the spouse.)   It is supposed to be hard to claim status as a de facto parent.   Transient boyfriends/girlfriends of the legal mother won’t measure up.

Now as written the test for de facto parenthood is completely  gender neutral.   Whatever the requirements are, they are expressed without any reference to the sex/gender of the people involved.   But it is also a test that very likely benefits more women than men.  Does this mean it is anti-male?

Answering that question depends on understanding why the results of this gender neutral test are skewed according to gender.   There are at least two reasons why I think de facto parentage benefits more women than men.

First off, women have needed the doctrine more than men have.   Other doctrins have served men.  Historically many men have been able to claim legal parentage under the marital presumption while women have not.  (This is because the marital presumption begins with a woman who gives birth and only men could be married to women.)   Even for unmarried couples, “holding out” allowed many men to claim legal parentage.   This doctrine was explicitly gendered and was not available to women.  (Indeed, I think you could make  decent argument that holding out was de facto for men.   And it is clear that a claim under holding out requires far less than a claim under de facto.)

What all that adds up to is that there weren’t many men left who wanted to be legal  parents but had no path to that status–so there weren’t many  men to claim de facto parentage.   There were, however, women who needed to use it–many of them lesbian partners.

The second reason why de facto benefits women are more likely to actually be doing the physical/emotional work of hands-on parenting.  I do not by any means to suggest that there aren’t many (literally millions) of men who do this work, too.  Certainly there are.   But I think it would be naïve to assert that in today’s world the actual hands-on parenting is performed equally by women and men.   Put somewhat differently, de facto parentage works to the advantage of caretakers.   Since more caretakers are women than are men, perhaps this means it works to the advantage of women.

I’m not convinced this is actually a bad thing.    I think men are perfectly capable of doing the work of caretaking just as well as women.   (Not exactly proof, but this if from tomorrow’s NYT.)  Perhaps what de facto does is to create an incentive to actually do the work?   Wouldn’t that be a good thing?   Shouldn’t we encourage that?   (This is quite apart from the other justifications for a de facto doctrine, which I’ve discussed in the past.)

There’s more to say but this is long enough for a frigid Saturday AM.

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30 responses to “Is De Facto Parentage Anti-Male?

  1. Actually we are more in agreement than it may sound at first glance… I also support de facto parenthood for persons who have established actual, on the ground, parental relationships.
    However, this is not applicable very early in life. If you demand the establishment of a relationship at very early stages, then that is anti men, because they are necessarily excluded, not having given given birth or breastfed.

    • I suspect you (or others) may think this odd, but I don’t attach unique significance to breastfeeding. That’s one part of taking care of a child. But there is so much else to do–hands on, physical. Who holds the child when it cries? Who plays with the child? And so on. All of those are open to men. So I’d look at the full panoply of activities (including breastfeeding) and see who is doing them. If it is all (or nearly all) one person and not the other then there’s a basis for preference (in my book). But if it is shared, it’s shared.

      So perhaps it is really just at the time of birth where we disagree. This is where I am least clear in my own thoughts, but I do think we disagree.

      • surprised Julie that you don’t regard breastfeeding as the central component in infant care. Infants spend the bulk of their waking time breastfeeding. other aspects of care will often coincide (diaper changing) with feeding so the child is with the mom anyway at that time. comforting a distressed infant tends to involve a breast too.
        For the first few months of a breastfeeding infant’s life, the other parent’s partner’s role is by necessity a supportive one, ie housework, financial support etc. While there role is important, and while they can develop a relationship at this stage, from the infants perspective they are entirely secondary, and as long as mom stayed the same, the infant probably wouldn’t notice if they dropped off the face of the earth.

      • In any case, no avenues of infant care – even bottle fed infants- are open to men who are not in a relationship with the mother. What’s he supposed to do? Force the door open of her house to pick up the baby? he’d get arrested. Shall we tell him he should have been the one to get pregnant himself if he feels so strongly about caring for the baby? doesn’t quite work that way.
        Shall we force him to marry the mom just so that he can have a relationship with the kid? In this day and age, don’t we view forcing a marriage as a violation of someone’s human rights? In any case, that possibility too, exists only at the discretion of the Mom.
        Thus, ignoring genetic kinship is anti men as it leaved fathers with no options except at the mercy of mom, in whether they may have a relationship with their progeny.

        • and the suggestion that we may garnish their paychecks for the benefit of the child they are prevented from having a relationship with- that’s objectifying and commodifying and thus anti male as well.

        • beautifully argued every comment ki

      • panoply – looking that up

        • “a group or collection that is impressive because it is so big or because it includes so many different kinds of people or things” what does that h ave to do with anything?

  2. another area in which we agree is that at the time of birth, the woman giving birth has a unique relationship with the infant that is not equalled by others… however we disagree in the significance of that relationship over time.

    • I am not at all sure about what I think with regard to the significance of the relationship over time. I actually see two dimensions here. First, there’s the caretaking thing, which would be relevant to de facto. Clearly the unique status begins diminishing at the moment the child is born. And if the woman who gives birth provides no care, then I think that aspect tails off quite rapidly. So if you have A, who gives birth and then leaves, and then B, who cares for the child from birth, I would prefer B fairly quickly. And if A and B caretake together then after a short time I would not prefer A simply because she gave birth. I cannot say how short, but I’m thinking weeks not months. Maybe I just have not been clear on this?

      But there is a second dimension–one which I see as different. I think it is possible that at some point in a person’s life she/he might like to meet the person who gave birth to them–in a way analogous to how an adoptive child might want to meet a birth parent. In that regard, the person who gave birth might have some permanent significant. (Similarly, the people who are raising the child might find the identity significant.) But this is quite different and not what we have been discussing.

      • As the children of gestational carriers begin to come of age we shall see how many reunion boards pop up with people trying to track down the unrelated women who gave birth to the my prediction is

        0 ZERO 0 ZERO

        None. Nobody is going to want to track down their gestational carriers because they are not related to those women or to their families. There won’t be anything tying them to those women. No everlasting connection. No primal wound because they are not actually those women’s children.

        I’m already hunting down their mother’s who donated eggs, regardless of having been gestated by their quasi-marital-black-market adoption birthing moms.

        • I agree that we will see, but I don’t share your confidence in being able to predict what it is we will see.

          I actually know a number of people who have maintained relationships with their gestational carriers because they want to give their children access to this person. They want the child to be able to have access to the “when I was in someone’s tummy” stories and all the rest. I think this is both laudable and interesting. and I think for the children involved, it may have real meaning. In the same way, I think a child who learned that she/he was carried by a woman in a far-away baby-farm type situation might have some feelings about that, too.

  3. meaning is, we disagree on whether birthing woman should take precendence over the genetic forbears for good.

  4. a woman partner can choose to get pregnant herself.
    but in your system, are there any ways for an unmarried man to have a relationship with his progeny that do not depend on the good graces of their mother?

    • If a woman were completely determined to keep the man from being a legal parent, then I suppose she could do so. Things like marriage or domestic partnership, voluntary acknowledgements of paternity, holding out and de facto parent all require some cooperation by the woman. But that doesn’t mean there’s no way for him to have a relationship. It just wouldn’t be as a legal parent.

      I take it this bothers you? Why? Any man who is worried about this could be sure to have procreative sex only with women who he actually has a reasonably solid positive relationship with. In that case if a child were conceived he could probably be a legal parent.

      Now, of course, I have to think about what that non-parental role is.

      • oh so we’re back to the “you unzipped it” theme, which is as unacceptable as the “you spread them” theme when addressed to women.
        (of course you know that it is impossible to absolutely predict someone’s
        behavior in advance. I’m surprised you even bring that up. but that’s a secondary point.)
        In any case it seems that I have characterized your position correctly, that the male role in parenthood should be determined by the female parent.
        Not a very gender-equal position at all.

        • I know I’m very late responding to this, but I thought it worth taking the time.

          I think you are correct in saying that (particularly at the outset), the role of a genetically related male in the life of a child is in large part dependent on the woman who is pregnant with the child. If he can forge a relationship with her so that they can figure out a way to share childcare obligations, then he will be in a much stronger position to claim parenthood (in my idealized world) than if he can not. And I see that this is not gender equal. But it is the problem of pregnancy–she is pregnant and he is not. IN the same way, I think she can decide to have an abortion if she wants one no matter what he wants to do. Same thing–not gender equal, but to my mind dictated by the nature of pregnancy.

          I do think about giving the man who wants an option to parent but has no relationship with the woman who is pregnant some other course. But what I keep coming back to is the question of what is good for the child in question. If the man and woman really cannot manage any sort of relationship, than having them as co-parents will do no good to the child. But what might make sense is giving him some special status in the event that 1) she wants to carry the child to term and 2) she doesn’t want to raise the child. The child is not her property to dispose of as she will, after all. So perhaps the man in question must have a way to proclaim and then claim and interest in this case. That’s what all the putative father registries do in essence.

          The point about the “you unzipped it” part of what I say (to me, anyway) is that men are not hapless victims here. They have chosen a course of conduct that does present certain risks–that pregnancy will result, say.

          And a last reminder: The fact that the man might not have status as a legal parent (in my view) does not mean you necessarily get to erase him from a child’s life. He is the genetic progenitor and I have been persuaded by many here that this in itself can be an important thing–even without any social relationship at all. So perhaps he should have a defined role as that, no matter what. Not necessarily as a legal parent but as something…..

          • Why do you say that having people act responsible and be accountable for their minor offspring’s wellfare is no good for the child? Children only require their bio parent’s care when they get along together? Having laws that say they must put their differences aside for the good of their child regardless how they feel about one another is no good for the child? What about the person’s rights to a medically accurate birth record and the right to identifying info and vital records on their relatives? What about the kinship rights and identities that will be compromised for no good reason all because you think that having contact with both parents is bad for kids if their parents are not romantically involved? Your trampling all over a whole families rights – for what purpose? You think its better that the kid be cut off from their rights, family and all that? What is better is for them to collaborate in their child’s best interest. Your advocating for abandonment by one parent if they are not romantically blissful.

            • Assigning responsibility and accountability to people who have neither the desire nor the capacity to perform the required tasks may not lead to very good outcomes. Especially where there is actually someone who is doing the tasks (and doing them well) I’d rather assign the responsibility to that person–I think you get much more predictable outcomes. I don’t really care whether the person doing the job is genetically related or not–if they’ve made a commitment and followed through it seems a more reliable choice than assigning it based on genetics.

              Similarly, if two people really cannot get along at all–have no sort of functioning relationship–then the fact that they had sex once doesn’t make them great candidates for coparents. Maybe they should be anyway. But there are some people who would say it’s better to pick one of them and let them build a stable home for the child that will only include the other if they can work it out. I’m not talking about bliss here. I’m talking about being able to work as a team. People do that in all sorts of situations that are less than blissful. But sometimes people just cannot do it and I think we’ve all met people whose childhoods were tainted by that sort of experience. I’m not offering any particular proposal here–just commenting.

      • Hey that is to un fairest thing in the world. What if the woman turns bitchy while she’s pregnant? You cant penalize the kid for the parents actions. You always objectify children. Always. Always making it like they are owned by the woman that gives birth with parenthood to be granted by her at her queenly discretion. Always making parenthood something that people think they can earn or pay for.

        Parenthood is a consequence of having offspring. It’s an obligation not a gift not a present not something anyone earns buys trades or sells. You either make good on your debt to the kid or you don’t. But to interfere, to thwart a parent’s efforts to care for their child is just reprehensible.

        • I don’t think I always objectify children and certainly I don’t mean to. I do try to think about what is best for children generally. And I think it clear that they need to be able to rely on the web of sustaining psychological relationships around them. That’s the appeal of the de facto parent doctrine to me. Go back and look at those WA de facto cases from December. It is not, to my mind, objectifying a child to say that we need to protect the relationships the adults concerned formed with the children. The children rely on those for the core stability of their lives. If someone appears on the horizon who can claim genetic relationship that may be interesting and we may want to take it into account. But it doesn’t negate the existing care-taking relationships that the child relies one.

          I understand that it is seems problematic to give a pregnant woman sole control of the pregnancy. But I would do that because I think it is essential to her autonomy as a person. Here’s the extreme case: If she decides she wants an abortion (because she’s turned bitchy or for whatever reason) she gets to do that. Many people think this is unfair. But she’s pregnant and her partner (if there is one–male/female, genetically related or not) isn’t and so I think she gets to decide.

          • Minors don’t remain minors forever Julie. Removing bio parents as the legal parents undermines the entire family’s rights forever the way law is currently written. Besides can’t you maintain the minor’s rights to be the child of their bio parent, and have other people in their life as necessary? I know plenty of people with guardians who don’t have their birth record and parentage changed. Plenty of step parents.

            • I think we might agree–in a broad general sort of way–that there should be room for both a genetic parent and a social/psychological parent in a child’s life, when those two roles happen to be occupied by different people. The question for me is what the roles should be. remember that what I focus on here is legal parentage–the right to make the crucial decisions for the child. I would assign those legal rights and obligations to the functional/psychological parent and give the genetic parent some other defined role. I don’t think this is the arrangement you would choose. The key for me is to ensure that the functional parental relationship is legally protected so that the child can rely on it. The step parent role, for instance, doesn’t fit that description. (A step-parent can be excised from a child’s life at the whim of the legal parent.)

          • Women have authority over their own bodies. There is no child when a woman is pregnant. You can’r force her to go thru with a pregnancy any more than you can force her to end it, not without assaulting her or restraining her.

            But once she gives birth it is not her body, she gives birth to a free person with rights of their own. She is not the only person that caused their existence She is not solely responsible for maintaining the life of her dependent offspring. Her offspring does have a positive right to support and care from their father and also has a right to identifying info and vital records of both their maternal and paternal relatives and the minor’s relatives on both sides do have a right to know about the existence of the minor without the mother or father’s permission they may obtain that minor’s vital records. The mother is not the owner of her child, she’s a caregiver by default and so is the father unless she thwarts and undermine’s the child’s rights thinking she’d prefer to raise the kid with someone she likes better. She can do that raise them with someone she likes better but can do it without severing her child’s rights to support and contact from the father and without severing kinship rights that will outlast their childhood long past her death.

            You are confusing bodily autonomy and control of her own body with a perceived property-right to the body of another human being. What you advocate for puts her in a position of falsifying her children’s medical records and forcing a false identity on them all to suit her whim instead of being a big girl and cooperating with the father of her children to their benefit.

            • The point I was making here was that, at least in my view, you cannot always treat men and women the same. Women get pregnant and men do not. That warrants different treatment, at least during pregnancy. I guess we agree on this? I would not necessarily prefer women after pregnancy. I’m looking for a track record, though, and it is hard for a man or a non-pregnant partner of any sort to establish a track record if the pregnant woman isn’t inclined to assist. I’d look for alternative routes, but only up to a point.

          • Is it not possible in your world for a dependent minor to receive love and care from a non parent without loosing their identity and their rights within their bio family? Is that the deal they must cut in order to receive care? Are they not worthy of care unless someone can get the title of parent taken away from the bio parent? Must the kid loose all legal rights within the bio family to make their caregiver feel more important and powerful. Must they loose all that in order just to be raised? It’s sad enough if they have an absent or neglectful bio parent that leaves unfulfilled obligations to be met, must the child loose their kinship in their bio family in order for someone else to think its worth it for them to help an abandoned kid? Can’t they get the authority without falsifying the kid’s medical records without severing kinship its all so objectifying. Like they do the work they want the title and naming rights. Buy it or work for it if its a person its so wrong to buy or think you can earn a relationship with a dependent minor. Let them grow up and change their name to the rearing party’s name if the kid thinks it was earned.

  5. So why not advocate gender parity–that judges be required balance in custody and child support awards by gender. Making child support taxable for he receiver and deductible for the payor also makes it more likely to be paid and less likely the receiver falsely claims no income for government support

    • I have no opinion on the tax point as it is beyond my knowledge. Sorry.

      I’m not sure what gender-parity you mean to suggest beyond that. I don’t think a rule that men/women should have equal time with/control over the child in all cases is a good idea. What if one of the two parents (for we are talking about custody between legal parents, right?) is deeply involved with the child and the other not at all? I don’t really care which gender is doing what, but it seems to me that it is in the interest of the child to ensure that the involved parent retains a more dominant role.

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