Another Instance of the Marital Presumption–this from CA

A little while back I wrote about a Michigan case involving the marital presumption.  (Briefly stated, the marital presumption means that when a married woman gives birth to a child her spouse (and these days that can  mean her wife) is presumed to be the legal parent of the child.    That’s enough for now (you can read up on it in the earlier post).  I’ll just also note that 1) all states have some form of the marital presumption and 2) it’s a presumption about LEGAL parentage–who is the legal parent of the child.)

As I’ve said, different states have different versions of the presumption.   It can be easier or harder to rebut, depending on where you are, for example.   MI, we now know, has a version that allows a husband to invoke it even if his (ex-)wife doesn’t want him to.  This means he can claim legal parentage of a child that is genetically related to his wife and another man.    There’s also a fairly recent case from CA that shows a different variation–and that’s what I want to write about here.

The CA court changed the names but the facts are pretty simple.   Victor and Mary were, as the court puts it, romantically involved.   Mary became pregnant.   About a month before the baby (Donald) was born, they split up and Mary married Roger.  Everyone knew that Roger was not Donald’s genetic father, but Mary and Roger took Donald into their home and have raised him as their child.   Victor has never met Donald.  His attempts to do so were thwarted by Mary.  Victor wants a court to declare that he is Donald’s legal father.

Now you can see that this is quite a different set of facts from the MI case.  Here the husband and wife stand (Mary and Roger) stand together against the genetic father.  (I’ll just assume that is what Victor is.  It seems very likely indeed.)

The initial question the court here confronted was whether Victor has a right to a hearing. (As to what will happen at the hearing….more shortly.)   In other words, does Victor have enough of a legal interest here to be entitled to be heard in court.

From the court’s point of view, the critical fact is that Mary wasn’t married when she got pregnant.  If she had been, it’s pretty clear that Victor would lose.   The idea (as expressed by the court) is that if a man has an affair with a married woman, he takes the risk that any child resulting it will be raised within the marriage (and not by him).  But if she isn’t married at the time of the affair, he doesn’t assume that risk.

Victor didn’t have an affair with a married woman, so Victor isn’t defeated by the marital presumption at this first stage.   But he still has a long way to go and the presumption may still prevail.

What Victor has gained is the right to try to show that he, like Roger, is a “presumed father.”   (There are different ways to get to be a presumed father.  Roger can use the marital presumption, which of course Victor cannot use.)   To get into the “presumed father” category Victor must show that he is genetically related to Donald (which I assume he can do) and, since he cannot show that he actually received the child into his home, he must show

that despite his best efforts he was prevented by Mary from doing so and that he has nonetheless “openly [held] out the child as his natural child” and attempted to assume the obligations of parenthood

If he can do that (and I’m not quite sure what it means to show that he held the child out in these circumstances), then he, too is a presumed father.

That would mean that Donald would have two presumed fathers–Victor and Roger.  At that point it would be up to a court to choose between the two men.   If you read through the opinion you’ll see that this determination is to be made with the specific facts of the case in mind–not as a general ruling about who wins in this sort of case.    The court apparently is supposed to weigh all the relevant factors from both presumptions (and here, too, I’m not sure what that means.)   But perhaps most importantly,

“[T]he trial court must in the end make a determination which gives the greatest weight to [the child’s] well-being.”

Further, the opinion mentions considering each presumed father’s role in the life of the child.  Given that Donald has always lived with Roger and has never even met Victor, it’s a bit hard for me to see how Victor could prevail here.  That’s especially true as Mary (who is unquestionably a legal parent) and Roger are apparently happily married.   That means the court will choose between Roger as father (in which case Donald lives in this nice marital family) and Victor as father (in which case Donald lives between two households, in one of which he has no existing emotional/psychological relationship.)

So what does all this tell us about the marital presumption in CA?   It think it tells us that it is still pretty powerful where it is invoked by a married couple in order to ward off an outsider.  It cannot be defeated by simple invocation of genetics.

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113 responses to “Another Instance of the Marital Presumption–this from CA

  1. You said that the bio father needs to prove he has an interest in being legal father of his child. I think that the law should not be set up to ask that question of the biological parents as it objectifies their child, turns them into property that they have an interest in. I’d like the question always to be does the child have a legal right to expect this particular person to provide for them and if so under what circumstances does that right to care come about? Then determine in each case of those circumstances are present giving the minor a right to care and support by that particular person. The concept of parental rights is screwy to me even when it comes to one’s own bio children. It really should be the child’s rights because they are the ones with the expectation and the parents are the ones with the obligation. The child does not have to DO anything for the parent in return for care whereas the parent is expected to DO something for the child. The child has an expectation or a right to expect fulfillment of that duty by those who owe it to him/her. The parental rights thing is so property based because if the right of the parent is not to performance of an obligation by the child then what’s left? The child him or herself and the title of legal parent which is to say they have a right to possess and control a person and that is not a way to treat a person who is free. A right to have a free person fulfill an obligation is respectful of that individuals freedom but simply a right to the person is not. I think these concepts of best interests of the child and proving a legal interest in the child are hopelessly at odds and cause great disparity in the results we see from case to case and court to court. It’s like the push me pull me animal from Dr. Dolittle.

    • Let me do some legal background stuff first and then I’ll get to your point.

      There’s a doctrine called “standing” applicable to all legal cases. The idea is that a person must have standing before they can bring a lawsuit. Standing means they must have a recognizable legal interest in the matter. It cannot be that they just care a lot about it. So for example, there are probably some laws in Texas that I would hate. I cannot go start a lawsuit about those because they have no effect on me (except they make me mad, maybe). The court would dismiss the case saying I lack standing.

      That’s what the first stage is in this case. Victor has to have standing to bring his claim to be a legal father. That means he has to have a recognizable legal interest. And the question is whether the fact that he is genetically related to the child gives him that interest.

      The court here determines that because Mary wasn’t married when she became pregnant, Victor does have standing. But I think it is also fairly clear that if she had been married to Roger when she got pregnant, Victor would not have standing. Thus it is fair to say, I think, that in CA the fact of genetic connection does not, in and of itself, give a person standing.

      I think what you are saying is that you think the law should be that there a man has a recognizable legal interest anytime he can show genetic connection. This would be consistent with your general view. (I don’t mean to assign it to you if it isn’t what you think–I’m just trying to be clear about what I think you mean.) In fact, I think you go further than this and say that the genetic father’s interest should win out over the marital father (if I can call Victor that), but that’s not the first issue here.

      I know you frequently invoke the objectification of children and I suppose we all agree that children should not be treated as property or objects. But I think we disagree about when we are treating them as property or objects. The idea that a man can claim the legal relationship to the child because he provided the materials used to create the child seems to me to objectify the child at least as much (and really more) than a rule saying that an actual social/psychological relationship with the child gives rise to a legal relationship. So, no big surprise, I don’t agree with the line of reasoning you’ve got here.

      • No I think given what you’ve said, I think it should be that he could approach the court based on a claim that his child has an interest in him fulfilling his parental obligations as expected and to say the mother is thwarting his efforts to abide by the law and meet his kids. Expectations. He is the one who caused a dependent minor to exist and that dependent minor has an expectation of him a legal right to have him in particular support him and that support by his biological father as his legal father will not interfere with the child being raised in a home with the mother and her spouse and won’t interfere with advantages of support to be gained by the husband -but the husband should be as a step father supplementing the mother’s contribution without terminating the child’s rights within their paternal family. All centered on the legal expectations of the child being met.

        • I think this just chases the question back a step. Who has an obligation to this child and why? That is actually a slightly different question, but still, I think you’re just assuming the answer you want–that Victor has an obligation. I see the causation argument you make, but as things stand in this country, the court does not decide legal parentage based on causation. (More generally, causation is a terribly complicated concept in law. Many people can cause a single thing to happen but not everyone is held to be legally responsible.)

          • what about responsibility for your own actions? no 3rd party liability

          • It’s not just back a step, it’s a whole different question. It seems what is novel about the current culture is that a men are actually asserting paternity when they don’t have to. 20 years ago, my friend hired a lawyer to do all sorts of legal bluffing to get out of being named father when he was facing a paternity claim. That was seen as the totally normal rational thing any man would do in his situation. The idea that he would assert paternity of the baby was ludicrous (though the fact that he had already moved to another state before learning of the baby might have had something to do with it). That was just 20 years ago. All the laws assumed that a man was either an “alleged” father or a “presumed” father, never an “asserted” father. Of course at the same time, there were moral strictures implying that, though rational, abandoning a child was also something a scoundrel or a cad would do, and wasn’t something to be proud of.

            This ties in directly to the disagreement of Marilynn and Julie about “children’s rights” versus “parenting rights.” Twenty years ago, the emphasis was on children’s rights, on making a man be responsible and holding him to his obligation to his child. Now it is on parent’s rights. And I think children suffer because, though a few men may now be feeling a positive desire to be their child’s parent rather than run away and let some other guy do it, there seem to be ten men who now want to raise someone else’s child and force the genetic father out of the picture. And men value the feeling that they are doing something because that’s what men are supposed to do, even though they don’t want to. They don’t want to want what they do, they want to be men who do what they don’t want to do. I think it breaks the whole cohesive force holding society together to take away the idea of responsibility and replace it with desire.

            • indeed the law seems to be based on the assumtion that men will do anything to avoid being named parents. In my opinion, men stepping up is a positive culture change.

              • But some men step up regardless of whether they conceived the child. Some men step up because they want to rather than the idea that it’s their obligation. I think people are more effective when they step up when the desire is there rather than go through the motions because they are obligated to.

                • it seems to me that john views men stepping up because they want to, as unmasculine? is that your opinion john?

                  • But how do you prove that? Could be that they are stepping up out of obligation but saying it’s because they want to.

                  • who cares? stepping up is stepping up.

                  • Because stepping up out of obligation could result in a half hearted effort whereas someone who wants to is likely almost always going to put in a full effort.

                  • whats in a persons heart is in their heart, btween them and their maker, not the court. Law legislates actions, not thoughts or feelings.
                    Besides which ALL parents sometimes do things for their children out of obligation not because they really want to.

                  • Pretty much. Men are supposed to do things they have to do, not things they want to do. They exist to provide women with what women want and need. Men aren’t supposed to “want” anything, they’re supposed to be good men who do what good men do. If they want to “step up” that’s not stepping up. Stepping up means doing it because that’s what men do.

                  • interesting view of masculinity. can’t say i share it. but i’m not a man.

                  • so men in your view can’t really want to step up to care for their own children, or else something is lacking in their masculine character? they’re only supposed to do it out of martyrdom and self sacrifice? but then aren’t they doing it so they can feel masculine, which is serving their needs after all?

                  • “interesting view of masculinity. can’t say i share it. but i’m not a man.”

                    I don’t either and I am a man. Though I have more progressive views and live in a progressive household. Whereas I think John is more old school.

                  • “Because stepping up out of obligation could result in a half hearted effort whereas someone who wants to is likely almost always going to put in a full effort.”

                    Not if the obligation was to put in the obligatory full effort. When it changes from being an obligation to being something people want is that people feel empowered to say “I don’t want to” and the obligation just becomes something to resent and reject. They stop being louses and irresponsible and just become, well, like gay men doing what they want and everyone affirms they have a right to do. People even go so far as to say that if they don’t want to be straight, they shouldn’t even try and don’t even have a right to try. The idea that gay men should be fathers has been a recent invention, for the first twenty years of gay liberation, gay men that had been straight left their wives and children and went to live in Provincetown, and that was expected and OK, it was better that way than if they wanted to parent their children.

                    I think the new phenomenon of men expressing desire to be good parents is an artifact of men trying to please women, ironically, by being good feminists, and it won’t last very long because it is self defeating.

                • It’s very true that those who want to do a thing are more effective than those who don’t want to do a thing. I understand the inclination to award custody of a child to a fit and capable non-bio person who wants the child over a fit and capable biological parent who is ambivalent about having the child because the person who wants the child very badly is apt to put their all into it which seems better for the child in the long run. These custody cases only come up when someone claims to want a child more than the bio parent which leaves people having to prove that their want is greater than the other person’s want or that their need is greater or that the benefit the child will receive is greater and then it becomes fighting over who can give the most or fighting over property. The child is no longer entitled to receive care from their bio parent as a default its only if it benefits them the most as opposed to other options. It is not a fair system even though it is tempting and I’ll grant you that.

                  • “These custody cases only come up when someone claims to want a child more than the bio parent which leaves people having to prove that their want is greater than the other person’s want or that their need is greater or that the benefit the child will receive is greater and then it becomes fighting over who can give the most or fighting over property.”

                    I disagree. These custody cases from a non bio parent side aren’t as much about their want and needs as it is what is best for the child and who is the better fit to parent that child.

            • John – spot on. Your band mate would have been considered a louse then or now. It was more common then I think you are correct. I think the attitude may have had much to do with the more primitive methods of confirming paternity broadly, and that may have made people more forgiving of men who sidestepped their paternity even when the guy himself was quite certain that it was his own child. I actually have helped an amount of fathers who were like your friend in their late teens and early twenties that were just the worse kind of jerks in and out of prison and drunks and drug addicts who in their later years realized that parenthood lasts longer than 18 years and they still had time to make a meaningful contribution to their children’s lives. And they got the door slammed in their faces over and over but this time they were grown ups and did not walk away and in each instance their kids finally let them in. It’s been a pleasure to watch just how great of a father a man like your friend can become 20, 30, 40 years later because that obligation never goes away whether someone else raises their kid or not. They accept cannot make up for lost time but have the revelation that they are still on the clock and will be parents forever and have a job to do until they die.

              Best of luck to your friend and his children.

            • actually john, i don’t know if the culture has changed all that much as you think. i know lots of divorced people but the only men i know with custody of young children are those who could afford full time nannies. in my opinion, the culture should change more.

              • My brother had full custody and he slept on the couch while his kids had the only bedroom and they lived in Compton. No cleaning lady – and it showed my brother is not exactly Mr. Clean.

      • and i agree that the idea that the man can claim the right to the child because he provided the materials to make the child is objectifying as well. I already said that. I more than agree with you there. I don’t believe bio parents should have a legal right to their offspring. I believe they have a legal obligation to them. Entirely different.

        • I don’t see it as entirely different, but perhaps that is irrelevant here. More importantly, why should the source of the genetic material have an obligation? That’s the causation thing, I think? Not what is used by the law (which is not the same as saying it could never be used.) It’s also not as simple as it sounds. Where a person goes out of their way to get sperm from a man and uses it to inseminate a woman then that person–the inseminator–also contributed to causation.

          All that said, I am interested (as I’ve said on occasion) in separating the obligation to provide support from the responsibilities/rights of legal parenthood. It’s an interesting thing to think about. Generally met with howls of protest, though.

          • Well there is already an obligation to support ones own offspring so simply having offspring makes people responsible for them that is absolutely in the law in my state and in the UPA with the exception of donors.

            Boiled down it works like this – Expect to be responsible for supporting your offspring unless someone else wants your offspring and can prove some investment in being able to raise your offspring either sweat equity labor or financial. That’s how it boils down right now as it stands nobody has an absolute expectation not to be responsible for their kids they create.

            And causation is different than being an influencing factor Julie. The person that causes a thing cannot be absent from the equation and still have it occur. You can set out to buy someone’s sperm and inseminate your girlfriend with it but you are not causing the child to exist – the sperm could not exist absent the man’s existence. The child could not exist absent the man’s existence. The person who did the inseminating did not have to be there in order for the man’s sperm to have impregnated the woman any number of different situations could have achieved the same resulting child. Self insemination, he could do it himself, a doctor could do it. So the inseminator is an influencing factor involved but not the cause.

            Also be realistic. A man that signs up to donate sperm for reproduction is signing up to have offspring with women he does not know without having to have intercourse with them. He wants to have offspring or he would not agree to give up his semen. He does not want to raise them, but he wants them to exist and is choosing to reproduce in this fashion without having intercourse. So he authorizes the distribution of his sperm and authorizes people to have it inseminated. The insemination is carrying out his wishes to inseminate women with his sperm and the woman in your scenario is carrying out the wishes of both he and the woman he’s impregnating. They jointly chose to have offspring together and jointly chose not to know one another or have intercourse to do it. That was their choice that they had the reproductive freedom to make. Nobody else had the authority to make that choice for them. No doctor, no spouse and no partners. The partner and spouses roll in all this won’t come until the child is born and then is exclusively in the raising, not in the causing the creation the conception or the reproduction. If biology and dna and reproduction is so unimportant then they should not be trying to claim a roll in it.

            • They only allow that causation thing for spouses and partners in sperm donor cases because there is nobody else to hang the financial burden on. Not because it makes sense. Now I know the whole craziness is about money. None of it makes sense because its about whoever has the money.

      • “The idea that a man can claim the legal relationship to the child because he provided the materials used to create the child seems to me to objectify the child at least as much (and really more) than a rule saying that an actual social/psychological relationship with the child gives rise to a legal relationship. ”

        Agreed Julie. It creates an entitlement for people who have sex that results in conception. There is more to being deserving of being a parent than that.

        • the commodification begins in the language you choose to describe the genetic father. contribution? provided the materials? you sound like you are talking about wood and a saw to build a table or something, when what we mean is created the child out of his own body.

          • There is mice to being an effective parent than providing materials to create a child. That’s the easy part for most.

          • I actually agree with you and that was rather the point I was making. He provided something that was used to make a child. Does it matter that it was “created out of his own body?” We all create things–out the labor of hands or minds or bodies. Is it that a biological process created the sperm? I still think the whole argument seems like it’s rife with commodification of the child–it’s an “I created it, I own it” argument–or seems like that to me.

            • yes; our body is personal. wood and saw is not. and one’s DNA is as uniquely personal as it gets.
              We create many things via our labor and our minds, but new human beings are not one of them.
              and there is nothing other than children we create out of our bodies.

              • There is a lot more work and effort involved in a person creating/building something or parenting a child than there is naturally conceiving a child. I think parents who think they are so special just because they had sex and it resulted in natural conception are overrating their contributions to society. The reality is they aren’t so special and superior to the rest of the population.

                • relationships aren’t a job.

                  • Never mentioned the word “job” in my post nor did I imply it. So I’m not sure where your response is coming from nor is it relevant to the topics of people building/creating something or parenting a child compared to naturally conceiving a child.

                  • sorry i misunderstood you, because you spoke about work and effort. yes, one must work and put effort into intimate relationships. but work and effort alone does not a relationship make.

                  • although it usually does

                  • Again I’m not talking about relationships. Parenting a child goes beyond just a relationship as you know. There are sacrifices the parent must make at times. All of that takes more work and effort than natural conception.

                  • I’m replying to a deeply embedded comment of Greg’s so that nobody gets confused and thinks I’m being off-topic. Greg you said I was my bringing up a person’s feelings about their adoptive and biological parents was not germane to your statements that bio parents feel they are special in some way. My assumption was that you were asserting they thought they were special compared to other people raising children who were not their own offspring and adoptive parent falls into that category. If you were going beyond a comparison of legal parent types then I apologize but for the purpose of the blog I don’t think my comment was irrelevant.

                • They are special to the child for a variety of reasons though not the least of which is that it’s their fault they exist and their job to keep them safe and take care of them, not give them away to people who want them more and even possibly paid to have them be abandoned.

                  • Having sex that results in the conception of a child does not make one person or couple special or superior to the rest of the population. This is where some parents take themselves way too seriously. Despite their belief that they are superior or more special than those who don’t have children or those who have children they didn’t conceive the reality is they aren’t special or superior.

                  • what do you mean superior or inferior to the rest of the population? do you mean in general, or specifically that they are not a superior choice as parent to their biological offspring?

                  • What I mean is that in general they are not superior people. The comments like “My life had little meaning until I became a parent.” “People who don’t have kids are selfish.” and other comments parents make that are shallow and narcissistic.

                    Though I don’t think that biological parents are a superior choice to parent a child they conceived in some cases. But that’s not what I was getting at.

                  • It does make the parent special to the kid because they originated from them and they owe a debt to them. Even if they love their adoptive parents way more and hate their bio parents – they hate the bio parent for failing them becaue everyone knows that duty exists which is what makes them special enough to either hate or love there was a legit legal expectation not met and they react to that loss however they want, hate ambivalence, sadness. They would not feel that way if there was a unique obligation that comes with making a person

                  • Marilynn,

                    I am not talking about adoption. I’m talking about in general. So your comments are not relevant.

            • Well I said I agree that parents should not have a right to their child as if their child were property, that is objectifying. The child is free and does not owe them anything. They owe their child a duty of care because they caused that person to be dependent and therefore it is their responsibility to handle. There is nobody else who would have that automatic burden to care for the results of their reproductive actions. The child would have no right to look to anyone else but them. What if nobody else wants to care for them? Shouldn’t they have a right to the care and support of their bio parents automatically?

            • He provided something that HE used to make a child. It was his idea to make a child first right? His name was already in the database as someone who decided he wanted to make offspring and he was shopping for people to make offspring with. The only thing he does not want to do is have intercourse to get the woman pregnant or raise the kid when born. He does want to make offspring and this is how he’s going about doing it. People who obtain vials of his sperm that aid in the insemination process are carrying out his wishes to get someone pregnant and have offspring. It’s real clear in their agreements that they are desirous of doing this for the purpose of reproduction and creating offspring that they agree not to raise. Nobody is using his sperm or him, he is doing what he wants to do with the help of various other parties in the process. They are his children his offspring to the extent his nose is his nose or his arm is his arm his semen is his semen, blood, poop saliva whatever, his child is his because they originated from his body but they are not objects that he owns. They are their own people. His child’s right to rely on him is not objectifying because their right is to performance of a duty by him rather than possession of him or control over him.

            • You make it sound as if someone else used his sperm to make a baby and he had nothing to do with it. It was his idea first if he was in a donor profile book. They are helping him. He is using them! He’s the one that wants offspring but does not want to raise them. He’s using them for the raising part and the insemination part.

              • You make it sound like he goes “I have no idea what they are going to do with it no control over whether i do or don’t have offspring I’ll close my eyes and we will pretend that you controlled this decision we will pretend that you are me OK?” We’ll pretend that my sperm is your sperm and that you are exercising your reproductive freedom.”

        • Agreed and nobody should be entitled to a child for any reason. Making the child should entitle their child to them.

  2. So taking what I was saying about the minors right to something. Every minor has a right to care and support from their mother’s spouse but not always as their legal parent even under the presumption of paternity for husbands because there is an opportunity to rebut the presumption when they are not the bio father and can prove it. The opportunity to rebut is restricted by time limitations which I don’t like because facts are always facts, none the less the opportunity to rebut exists and that means the child does not have a right to expect their mother’s husband will be named as their legal father; they do however have a legal right to support from him as part of their mother’s overall contribution to their support as their legal step parent. Their right to his care and support does exist and is not rebuttable but it is with him as their step parent and that right expires when and if they divorce. Their right to their biological father’s care and support is not rebut table by him under any circumstance. He can’t rebut paternity if she has a husband who has successfully proven he’s not the father nor can he rebut it on any other occassion. His obligation to support and care for his minor child is permanent and is not dependent upon being married to the mother so it never expires and his child has a right to expect performance of those obligations by him because they don’t expire with marriage and for numerous other reasons as well.

    I’d prefer that best interest of the child be abandoned as well because it will result in different results as well based on who is better financially situated or who is married to the mother and then that interferes with consistent application of the child getting what they have a legal expectation of others to perform. If it’s better for them financially to have their mother’s husband be named legal father and the mother’s husband is not interested in an obligation that would outlast the marriage it would be unfair to him. The fact that he is an adult and the child is a child does not mean that justice should go blind in that instance and be unfair to him.

    If the individuals the child has an expectation of are unfit like convicted of a crime that threatens their safety and welfare then I think the authority of that parent should be terminated without severing their child’s rights to certain things from them. I know this is a radical departure but it would be fair and just and consistent which is in the best interest of everyone that is the idea behind the blind justice concept.

    • It doesn’t help to invoke the language of rights until we explain where the rights come from and/or why they exist. And I’m not sure if you are describing how you think law is or how you think law should be. In any event, it’s inaccurate (as a descriptive matter) to say that every minor has a right to support from their mother’s spouse (and I take it you mean legal mother? But I’m not sure).

      It seems to me that the whole point of the marital presumption as it exists today in some states is to give the husband the right to claim legal parentage of the child or not, as he chooses. That suggests to me that it is hardly about the rights of the child at all.

      • OK walk me through it. In my state if you are married to someone who has a child their burden of support is reevaluated to include your income. You as a step parent have the legal obligation to help your spouse support their kids during the course of your marriage and you can add them to your medical insurance and they can get social security death benefits if you die while they were dependent upon your income. So that of what I describe is how the law is for sure. The only way a spouse can get out of that is to divorce. Is that incorrect or different in your state Julie?

        • I mean their legal parent or legal adoptive parent’s spouse is their step parent and there are lots of obligations for the step parent and lots o rights for the step child. I check pretty carefully. To not waste your time, like the health record issue. I know lots of people here that are obligated as step parents so the step child is clearly entitled. The state will even in some instances go after girl friends or boyriend’s incomes if it looks like the parent is avoiding getting married to protect the income of the boyfriend or girlfriend from garnishment. Believe it or not how f’d up is that it happened to a friend who ran a day care business, her boyfriend was a deadbeat dad and his ex came after HER for child support.

      • “It seems to me that the whole point of the marital presumption as it exists today in some states is to give the husband the right to claim legal parentage of the child or not, as he chooses. That suggests to me that it is hardly about the rights of the child at all.”

        Yes your right and that is exactly the reason I said I think it would be much better to move away from that model where it is not about the rights of the child. Why should anyone have a right to the child he/she is not an object.

        • But it’s not a right to the child, it is an obligation of a husband to support his wife’s children and his wife. A husband wasn’t allowed to skirt that responsibility. It only makes sense in a world where adultery is a major crime and never done because, among other things, it violates the right of children to be raised by their own father and mother.

  3. A minor has a right to financial support but it does not matter to the minor who that support comes from. money is very impersonal. a dollar is a dollar is a dollar no matter whose pocket it came from.
    genetics on the other hand is about as unique as can be.
    that is why i feel that support is the wrong issue to take up if you are trying to make a case for genetic parenthood.

    • oh i misunderstood your post, you were talking about support from the stepfather.

    • Just the tip of the iceberg. They have a right to the support of their parent of origin. They also have a right to support from each of those people’s spouses if they are not married to one another because their parent’s incomes are supplemented by their spouses incomes. So making the step parent a parent looses them the support of their parent and leaves them with support from the step parent that they would have had anyway so long as the marriage remained intact. The law does not legislate emotions and stuff that really happens on the ground it pretty much boils down to having to fight for equal rights about issues like health and medical records and support obligations. I know it’s not deep and emotionally complex but if there are going to be legal changes its going to have to be in areas where they’d have a right to not only know who their parents are but have the same expectations of them that everyone else does or should barring complete proven unfitness to take care of them – then moving on to 2nd choice. Starting at second choice short changes them and denies them due process that others allowed to start at square 1 have. Which is to say every chance to make their own family work before admitting defeat and moving on. Contriving a situation that would occur as a result of defeat denies them something they have the right to.

    • This, it seems to me, is a critical observation. Money is money. It matters to the person who might have to pay whether or not money is owed, but from the child’s point of view who pays the support isn’t vital. The question is who plays an actual role in the child’s life.

      I think a lot of people would say (and you can see why) that it’s unfair to say someone has to pay the money if they don’t get to be the person who plays a role. If you say that then you link the two things (parentage and support) together. But one does not have to agree with that.

      • But parental rights are terminated frequently while still garnishing checks for support and without terminating the child’s kinship rights either. If the parent is a louse for whatever reason they loose their authority but their children don’t loose anything on their end. I personally see this as ideal because the child’s rights are maintained while simultaneously ending or severly restricting contact. I have a friend unjustly in this position currently her checks are garnished and she has not seen her son in two years and her daughter in 1 year. They’ll leave it like that unless someone wants to come along and step parent adopt and that is where the kid looses their rights. They’d have a right to support from the step parent through their mothr anyway – why terminate the kids rights to their bio parent they get nothing out of it and they loose.

        Of course it matters who pays. Children are a liability. Parent’s are liable for theirhaving caused the kid to exist. If someone hits and kills a pedestrian and their mom is willing to go to jail for them even though they did not cause the situation and are not who owes the debt, you think anyone would be satisfied with the mom going to jail and doing the time? No. Why? She’s not the one who owes it. The surface need is met but it is unsatisfactory on a deep level of personal responsibility. The mom would do his time but its kind of like in addition to what he owes from the victims family point of view. Now in adoption you are getting someone to cover for you financially and maybe that does give them parental authority (it does and should) but I don’t see why other obligations can’t still be met and maintained. Anyway my observation on the whole primal wound thing is not about being in the womb so much as having originated from them and them having an obligation to care for them that can never be fullfilled by anyone else. The people that raise them developed a relationship in their own right from having provided for them, but that doesn’t make up for the relationship not developed for lack of having provided.

      • I’m coming to feel that adoptions and the like should terminate the parent’s authority, and that’s it as far as termination of rights goes within the bio family. Nobody else’s rights withing the family should be touched because the bio parent is not raising the kid. The adoptive parents gain authority the child gains rights within the adoptive family all as supplemental to their rights being the same as any non adopted person when it comes to their bio family. Then something like a step parent adoption or any adoption for that matter is at no expense to the person being adopted. My objections are not to protections of relationships forged but that protection should not be at the expense of anyone’s rights except for the absent bio parent and then if so only for good cause regarding safety. Not just to block contact to preserve the illusion of marital family. If it is just an illusion, then the kid and their bio family has already suffered a loss of frequent contact don’t make it worse by severing rights and changing identities.

    • If your step dad had to contribute to raising you anyway, why cut your dad off? He’s the one who owed it to you to take care of you.

      • It protects in the case of divorce the child’s continuing relationship with the person who actually acted like a parent and so the child bonded with them. I think that is way more important than keeping a legal relationship with a bio parent who refused to have anything to do with the child.

        • Agreed Rebecca and that happens a lot in divorce.

          • I do think the other bio parent should get the chance at the start to have that relationship, but if they voluntarily are not involved, the child should get to continue a relationship with the person who acted as parent for enough time to form a bond when the bio parent chose not to.

            • yes i agree

            • Rarely does the bio parent involuntary choose not to be a part of the child’s life. It’s strictly a voluntary decision.

              • What no that is not at all the case Greg. Many bio parents are forced out. It’s horrid how many. Many men who go to war this happens to and it is just so unfair to their kids

                • Yes, it is the case. I know this for a fact. Some bio parents can’t be bothered to be involved in their child’s life.

                  • “Rarely does the bio parent involuntary choose not to be a part of the child’s life. It’s strictly a voluntary decision.”
                    And I said no that is not the case that many are forced out by their X’s. Meaning it is not all that rare for people to be forced out of their kids lives and I gave you an example of men at war. Then you said:
                    “Yes, it is the case. I know this for a fact. Some bio parents can’t be bothered to be involved in their child’s life.”

                    OK sure there are some bio parents who can’t be bothered. Obviously there are some and nobody can deny that. But you had said RARELY are they forced out. That is just not true. We talk about the cases all the time where bio dad is fighting to keep his kid from being adopted or is fighting to keep his kid’s step parent from swallowing them up out of their paternal family. All the time they are forced out. Virtually every CPS case involves the forced termination of parental involvement and they very much are bothered by it – though they often lack adequate child rearing skills and other resources.

                  • “And I said no that is not the case that many are forced out by their X’s.”

                    Disagree, if they want to be involved in their child’s life they will find a way. Unless they are dangerous to the children rarely is that decision to stay involved in their child’s life taken from them.

                    “We talk about the cases all the time where bio dad is fighting to keep his kid from being adopted or is fighting to keep his kid’s step parent from swallowing them up out of their paternal family.”

                    This discussion isn’t about adoption, it’s about divorce/separation. And again unless the father or mother is seen as being dangerous rarely is the decision to stay involved in their child’s life taken from them. If they want to stay involved in that child’s life they will find a way to do so. I know parents that would drive 6 hours round trip to pick up their child on a Friday night to spend the weekend with them because their ex spouse refused to meet them half way to drop off the child.

                    In the case of CPS and parents that lack parenting skills and other resources well that’s their problem to address. If they truly have an interest in parenting their child that’s something they need to address themselves. They aren’t entitled to help any more so than a couple who desires a child that is unable to have one. Just because they conceived the child it doesn’t entitle them to anything.

              • Mom’s have a sick amount of power way too much power to block bio dads

                • It depends upon the state. There are many states that are unfair to women and others that are fair to both sides. Being married to a family law attorney I hear many stories at the dinner table of couples with messy divorces where children are used by both the husband and wife to get back at the other. It’s all very sad and the child is the one who suffers.

          • Also it protects the relationship and the child remaining in the home should the bio parent raising the child die but their spouse who acted as the other parent survives.

            • Well if the bio parent dies the kid will start receiving SS death benefits on her and the step parent who was married to her would still be supplementing her post mortem support of her child and the kid could still be receiving state aid to offseet what the bio dad is not contributing and unless the bio dad stepped in to challenge the step dad’s custody the child would likely remain with the step father for consistency sake and I’d imagine a pretty good case could be made especially if bio mom had bio dad’s rights terminated without terminating his parental responsibilities. I’d say the safest bet for the senario you are speaking of would be to sue to take away bio dad’s parental authority (for just cause only) without moving forward with a step parent adoption. That would likely prevent bio dad for suing for custody after bio mom is dead. Leaving step dad in the same position and all the child’s rights intact.

              • “Well if the bio parent dies the kid will start receiving SS death benefits on her ”

                When a child has lost one of their parents the last thing on their mind is that they’ll get SS benefits from that parent. Nor is their so called “rights”. What they need more so than anything is as few disruptions to their life as possible and emotional support. If that is what they are getting from their set parent it shouldn’t be taken away. No SS benefits or so called “rights” in tact can substitute for the emotional support lost.

        • Who said refused to have anything to do with them? As a hard and steadfast rule here you are talking about what exactly? Giving ex spouses the absolute right to seek custody of their ex’s children? Over the child’s right to receive support from and have contact with their father? If this proposal were to be enacted you’d be saying that minors have the right to have whoever wants to be their parent be their parent. So then what happens to the kids who don’t have anyone that wants to be their parent? What if there is no grand step father in their life that wants to be their father what then? Does the kid have nobody they can rely on for support?

          It seems to me that what many of you favor is a system where they get their own biological families to rely on as long as nobody else really wants to be their parent instead. Like bio parents are a fall back to rely on if nobody else commissioned them, invested in them, has an interest in them or expects some return on them. Which is to say most of you favor a system that objectifies the child so that they have no solid positive right to care from anyone other than those that objectified them.

          We need an unfaltering starting place that is not contingent upon being wanted by anyone or desired by anyone or anyone’s personal investment in their arrivals on earth be it by money or labor or support to those who labor or underwrite the existence of the child. There needs to be absolute right to care and support from individuals regardless of whether they feel like it or not because its their duty not their right. Not every child is wanted or desired. This is so twisted where you have these two classes of kids who are unwanted by their bio parents. Those that are wanted by outsiders and those who are not wanted by outsiders. The ones wanted by outsiders just have their rights totally trampled upon and are objectified by acts of commerce and charity. Those who are unwanted by outsiders at least have their rights protected to some small extent.

          • “If this proposal were to be enacted you’d be saying that minors have the right to have whoever wants to be their parent be their parent. ”

            Well then why should I child be forced to be with a bio parent they don’t want to? What about their freedoms that you are denying them by forcing them to be someone they aren’t?

            • I don’t understand there were some typos. Give another shot so I understand

              • With kids its not about want. If we left it to kids what they want they’d never visit grandma never eat their vegetables never wear a warm coat never take a bath. It’s about what they have a right to interms of safety and security and support. And it seems to me they definately have the right to that from their bio parents legally but only if nobody else wants to buy their bio parents absense and buy parental title.

                • whoa look at my typos

                • ” If we left it to kids what they want they’d never visit grandma never eat their vegetables never wear a warm coat never take a bath.”

                  I’m not talking about those situations. I’m talking about situations where a child ends up being forced by the court to live with a parent who is never engaged in their lives instead of the parent who is actively engaged in their lives. I know someone who was forced to spend 13 years of their childhood with a parent who was never engaged in their lives and only spent some weekends with the parent who was engaged in their lives whose spouse was also actively engaged in the child’s life. What would have been best is if that person was allowed to live with that engaged parent from day 1 to be the person they were to be rather than the person they were forced to be.

                  • Well Greg what you are proposing there is an entirely reasonable arrangement where the two parents remain obligated equally to their child because the child is entitled to those expectations being met, but arranging custody in such a way that was responsive to the parent’s personalities and their ability to meet the daily demands of raising a child. It does not sound like either parent was unfit enough that a judge would terminate their parental authority or custody altogether for safety reasons or there would have been a restraining order against them. In that kind of case there is no reason why the child does not deserve everything the parent owes them in terms of support and in terms of physical care. If that parent is less inclined towards the physical care the kid could live more with the other parent but the less inclined parent’s support obligation increases as his care giving decreases. Sounds like that parent should have been the one with visits and the other one be the one with the main custody. The main goal is for both to give what they owe. If one is able to give more because they get married great, the child benefits but it should not be at the expense of loosing care from the other parent.

          • You asked what we think a child gains from a stepparent adoption in situations where the other bio parent is completely absent from a child’s life by choice or unfitness. I gave my answer.

            • Whoops. Well I’m sorry Rebecca. My bad. Then thank you for your response and sorry for my strange reply!

              • Wait no were you replying to this question i asked of you?
                “marilynn | March 2, 2014 at 4:18 pm | Reply
                If your step dad had to contribute to raising you anyway, why cut your dad off? He’s the one who owed it to you to take care of you.”
                In that question I did not imply that the parent was totally absent. Even so if he was totally absent, we are talking about a positive permanent right to support from a bio parent right now and a positive right to support from a step parent supplementing the mother’s efforts. The mother can seek extra state aid for her child that the absent father will have to pay back to the state or if she does not seek aid from the state, he will owe it to his kid. So if a dead beat’s parents pass away and leave him property that child is entitled to collect back support from their father who now has money. Wouldn’t that child be at least entitled to that if their father had done nothing for them up to that point? If their father dies of a drug over dose while they are still under 18 shouldn’t they at least get the benefit of his SS death benefits to put toward college or something? I understand I’m talking only of the monitary but that is where rights are legally centered as there are no laws that can make a parent love their child – the least they can do is support them and it is important to say that children at least have a right to that much. Maintaining that right does not come at the expense of any support gained from their mother’s spouse. Their spouse has the legal right to claim them as a dependent and the legal right to add them to their medical insurance and to take them to the doctor sign their school papers because they are authorized through their spouse to participate in taking care of the step child. Your talking about getting rid of the kids rights at absolutely no gain to them because the parents might divorce but if they did divorce the kid could get aid from the state still where they could not if the kid were step adopted. Also what if the step dad is a louse and the mom does not want him to continue to have anything to do with the kid after the divorce? Lots of mom’s pressure their new husbands to adopt their kids by other men then the marriage falls apart and those step fathers are stuck paying child support on some other guys kid while the other guy is scott free and talks to their kid on the phone and has them to family gatherings. It’s just messed up

                • I explained that I think the child does gain a benefit. You think the child does not. We disagree but it is a matter of opinion, I genuinely think the child can gain more than he or she would lose with a stepparent adoption. Though obviously which children would gain depends on individual circumstances. The children I think would gain the most are those with one completely absent bio parent.

                  • But you are also assuming that the child has no relationship with his extended paternal family also. This severs their legal connection completely. If the bio mother took action to terminate the rights of the other bio parent that would not terminate the child’s right to support rights within the family and if she died it would be very difficult for him to get custody of his kids if he had already been deemed unfit by the court and the kids were dependent on their stepfather supplementing their mother’s income. The kid does not have to loose in order to get care and support from the step parent that could outlast the bio mothers life. So do you still think the kid stands so much to gain as to make it a hard and fast rule that the mother should just be able to decide her kid should have a different father? Just swap him out for one she likes better? It’s not her her relationship. I really feel that parents should only be able to intervene in their children’s relationship with the other parent when the child is in grave danger from being with them and then only to the extent that the bad parent does not have custody of them not that the kid has no legal standing as a member of their own family.

                  • I don’t think a bio parent should be able to just decide that regardless of circumstances. The other bio parent should have to either have abandoned the child or been found unfit by the court system.

                  • Well that is totally reasonable. The mother can actually take the father to court and prove he’s unfit and have his rights terminated without terminating her kid’s right to support or revising their birth record or anything. If he’s really that bad she can whittle down vititation to only supervised or possibly none at all without damaging the kids rights at all. That’s the goal right? To protect the child physically while trying to maintain their right to receive certain things from their father. Also hopefully to maintain or encourage them to have a somewhat normal relationship with his family if possible. That can be achieved and she can raise her child with her husband. Their father would already be proven unfit in the event of her death and the kids would be dependent upon their step father. If he’s that great a guy they’d want to stay with him also. But if the father is not actually ever found unfit and she dies, the children should have the right to go be raised by their own father if he’s capable of it. Her husband should not have a “right” to them, nor should their father. But the right of the child should be to be cared for by the individuals who owe it to them first to maintain their other rights and then if they fail the back up is a guardianship or adoption. I don’t think its fair to make assumptions about how great either one of them would be. I think fairness requires establishing what children are generally entitled to from their bio parents and then expect that they should have to provide that. Actions and decisions should be based on that expectation so its fair and then if extraordinary circumstances exist where the kid is not safe with that person, terminate the parent’s authority while maintaining their burden. That to me is ideal because it’s just fair all the way around. I know its not how it works now but how it works now is very property minded.

                  • “I genuinely think the child can gain more than he or she would lose with a stepparent adoption.”

                    I agree Rebecca. Step Parent adoption seems so unnecessary for the situation.

                  • as I understand rebecca’s position, it’s quite the opposite- that a step parent should follow the adoption procedure to become a legal parent.

                  • Rebecca I generally find your opinions to be fairly well supported. You are pretty logical. Not an adoption as-it-stands-fan but know that minors gain protection when procedures are followed to protect and step parent adoption is not nearly as bad as just assigning a husband parenthood based on a false presumption of paternity. There are big losses in step parent adoption but not as bad as in paternity fraud.

                • Completing the stepparent adoption seems best because it avoids later uncertainty of intent which can lead to to messy and prolonged court battles.

          • I think the stepparent should have that right when second bio parent is absent through their own actions, and stepparent has either adopted the child or acted as child’s parent long enough to form a relationship with the encouragement of the non absent bio parent.

  4. Julie didn’t you once explain that the marital presumption is structured as wide as possible to cover all bases- that it applies either at conception, or at birth? or is that only in some states?

    • Only in some states. There’s a lot of variation these days. I’m not sure all courts would go along with the idea that a man who has an affair with a married woman assumes this risk while a man who has an affair with an unmarried woman does not. In a state with a really strong preference for a child being raised within a marriage, all that would matter is marriage at birth and then acceptance into the home. And I’m not sure CA isn’t heading there anyway. Will be interesting to see how the court chooses between the two presumed fathers.

      • It so treats the child as an object rather than as a person who has a right to care from their parents who made them – the parents where maternity and paternity were presumed. If they can only count on a protected right to care from those individuals when nobody else feels like having them and keeping them all to themselves – then they are objects of desire first and then as a last resort if nobody wants them the state will look to the bio parent and then if they can’t get them to take care of them, the state gets people to adopt them and throws in their identity and identifying paperwork as a bonus so that they will work off the care and support provided by the adoptive parents as indentured servant s playing the roll of their child, not just during the years they are supported, but for the rest of their lives. They never get to go back to being themselves. They have to work playing the roll of the adoptive parents child in order to receive care and support. Nobody else has to work for care and support but they do.

  5. Julie, didn’t California just recently change the law where three or more people are allowed to be legal parents to the child (and on the BC)? If yes, why don’t they just do that?

    • California did change it’s law as you say and I think that’s an excellent question. I don’t have a good answer. Perhaps three parents would be unworkable in this sort of situation? I think there are two separate bodies of law that have developed and they haven’t merged.

      CA has a line of cases about surrogacy where the court’s have to choose between the two potential mothers and you could ask the “why not just three parents?” question there, too. This seems to me to be analogous with that line. But great question.

      • interesting why no one has brought that up. perhaps someone yet will. or perhaps they wont and this is just another example of how people continue to maintain a mental separation in their heads between conception via ART and conception via intercourse.

    • See now I don’t see why the third through marriage should not just be a step parent.

      • Why is it necessary for the non biological parent to be put down and classified as a second class parent even if they have a more active role in parenting than the genetic parent?

        • because their involvement with the child is came through the marriage and so should not outlast the marriage. That way the child remains entitled to their parents care while adding or supplementing care by the step parent.

          • But sometimes it does. Sometimes non biological familial connections last a lifetime regardless of what happens to the biological parent. Sometimes that bond is stronger than one with their other biological parent. I personally know someone where this is the case.

            • Me too, I do too. See the title is not necessary in order for the bonds to form. The title just descirbes positioning, tells you nothing about the depth or lack of depth. It should just be left alone insted of trying describe two different positions physiologically with one term

              • Except you would legally destroy the child’s continuing relationship with the parental figure they bonded with in cases of divorce or death of the non abandoning bio parent, in order to keep a legal relationship with the abandoning parent just in case he/she someday can be tracked down and made to pay child support from the “correct” source.

                • I just replied to this elsewhere in the comment thread. If the estranged parent is that bad the mother can go to court and prove him unfit without severing the kid’s rights to their identity, their kinship their rights to support. So she and her husband are have full physical and legal custody of the child and the kid still receives support. In the event of her death then they’d still receive state aid or support from their father and he’d still be unfit to care for them, they’d be dependent on their step father’s income for support in conjunction with their mother’s death benefits and if they had that great a relationship with them they’d be allowed to stay with him vs going into strange foster care. But if their father was never proven unfit the step father should not have a “right” to them nor should the father have a “right” to them. It should be that the fair thing to do be based on what they have a right to and what their father has an obligation to do.

                • “Except you would legally destroy the child’s continuing relationship with the parental figure they bonded with in cases of divorce or death of the non abandoning bio parent, in order to keep a legal relationship with the abandoning parent just in case he/she someday can be tracked down and made to pay child support from the “correct” source.”

                  Agreed Rebecca and that shouldn’t ever happen just because certain groups/people believe biological parents are superior doesn’t mean the child should suffer.

              • The title is necessary because it accurately describes what someone means to a person.

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