Musing on Marriage and Parenthood

The two core legal relationships in family law are marriage (legal relationship between adults) and parenthood (legal relationship between adult and child).   Over the years there’s been a lot here on the blog about the connections between those two relationships.    But there seem to be an infinite number of ways to come at this and recently I’ve been pondering a couple of slightly different ways to think about this.

First off, I wanted to briefly comment on a tension that arises about the connection between marriage and parenthood in litigation around access to marriage for same-sex couples.  There’s been a lot on the blog about the marriage cases and the role parenthood plays in them.   The very recent MI opinion is a fine place to see this.

On the one hand, both side in marriage litigation agree that it is best to raise children within a marriage.   Now I find this a rather problematic argument to rely on (and I’ll come back to that shortly) but like it or not it is a view that advocates and opponents of access to marriage share.   And given that, it’s unsurprising that it’s a view that is affirmed in virtually every court opinion.

(For those who say that marriage should be for different sex couples only, the argument is that only different sex couples can procreate and so only they need to have access to the optimal child-rearing institution.   For those seeking access to marriage, the argument is that lesbian and gay people are, in fact, parents and so it’s only fair to their kids to allow them into the optimal child-rearing institution.)

But advocates for marriage access also argue that any necessary connection between procreation and being married has been severed.   Unmarried people have children–both as couples and as single people.  Illegitimacy is no longer so stigmatized.   And married couples may not have children at all.     (Same-sex marriage supporters need this argument because it allows them to argue that the fact that same-sex couples cannot procreate on their own shouldn’t bar them for marriage.)

It may seem that there’s some tension here between the assertion that raising children within a marriage is best and also asserting that there’s no connection between having children and being married, as supporters of access to marriage for same-sex couples do.   But perhaps the tension is largely illusory.   The second point here (that’s the decoupling one) is meant to be descriptive–it’s an observation about how people are behaving.    Additionally, the two points have different foci.   One is about producing children (which, it is argued, is no longer inevitably linked to marriage) and the other is about raising children (which, in the view of all the litigants, should be linked to marriage.)

This brings me to my second observation.   It seems to me that as a society we remain deeply ambivalent about the connections between having children and being married.   While we’ve certainly made progress in diminishing the discrimination experienced by children of unmarried parents (children once labeled “illegitimate” or even “bastard”)  there is still a broad social preference for raising kids within a marriage.   Both sides in the marriage litigation agree on this, when they don’t agree on much else.

One result of the marriage litigation is to reinforce the notion that children should be raised within a marriage–that it is better for the kids.    (This the problematic point I raised above.)     That’s an argument that reaches well beyond the same-sex marriage question.

For instance, in the past month or so we’ve talked about a string of cases here where a woman gave birth to a child genetically related to one man while she was married to another.   In these cases the genetic father sought to claim parental rights.   And generally the genetic father lost out to the husband, even though the husband is not genetically related.

What explains these cases?   We’ve talked at length about the marital presumption but there’s a simpler way to think about it.   Perhaps what explains the outcomes is the assumption that it is better for the child to be raised in a marriage if that’s possible.      In fact, this argument is pretty explicit in some of the cases.   The state chooses husband and wife as legal parents over umarried man and wife as legal parents precisely because of that “married parents are better” assumption.

What’s fascinating to me is that the same conviction–that marriage is better for children–lies behind both the rapidly expanding lists of states allowing same-sex couples to marry and behind the generally disfavorable treatment of unmarried genetic fathers when they are up against husbands.   I just hadn’t really noticed that before.

 

 

 

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37 responses to “Musing on Marriage and Parenthood

  1. “(Same-sex marriage supporters need this argument because it allows them to argue that the fact that same-sex couples cannot procreate on their own shouldn’t bar them for marriage.)”

    You mean the two parties in a same sex couple cannot procreate TOGETHER. The individual parties in a same sex couple can procreate with members of the opposite sex if they and the person they procreate with have healthy reproductive systems. You kind of made it sound like the couple as a unit can’t procreate on their own but can with help from someone else. The couple will never procreate – parties to that couple can procreate but then the couple procreating is an opposite sex couple they just are not romantically involved and may never know one another even.

    • It’s possible that same-sex couples could produce offspring together using stem cell derived gametes or organs or other technology like DNA synthesis, so that a woman could have sperm made to impregnate a female partner as if she was male. The fact is, saying that they cannot procreate together is wrong, it just hasn’t been done yet, is all you can say.

      The important point is that we don’t have to let people try it, we don’t have to approve or allow it and support couples as though they might procreate together. We can rule out procreating with people of the same sex the same way we rule out procreating with siblings and parents, and put people in jail for possibly doing it.

      A married couple only has a right and approval to procreate with each other, using their own gametes. That right must be protected and affirmed, because people are feeling pressure to use donor gametes even if they are not infertile, and people are having their right to be fertile dismissed as trivial and equal to using donor gametes if they want to have a baby.

  2. “It may seem that there’s some tension here between the assertion that raising children within a marriage is best and also asserting that there’s no connection between having children and being married,”
    Wait if Mom was not married to Dad but Dad and Mom are married to other people and in splitting their time raising their child are raising them with their respective spouses then that would qualify as kids being raised within a household that has married parents, they are just not married to each other. The kid gets what they are supposed to get from Mom and Dad and then additionally gets whatever contributions their step parents have to offer. It all makes perfect sense. There is no connection between being married and having children, nor raising them. Your parents are who they are maybe they are married to each other and maybe they are married to other people. You adopted parents are who they are – same goes for them and their spouses if not married to each other.

    What is so wrong with step parents? It may not seem as good to the step parent, but it’s not intended to serve them, we are not worried about how much power they have we are worried about the kid getting what they are owed from the parents that made them. It’s plenty good for the kid since its an addition to, and not at the expense of, their bio parents.

  3. Bottom line is that the kid would still be raised by mom and her husband if the father was named father and held accountable as a parent with equal responsibility only the kid would get what they deserve, what others are legally entitled to instead of loosing out on so much physically, financially emotionally and legally. These decisions treat the person as if they will always be a child and the legal benefits of having your actual bio parent named as father on their birth record has positive ramifications for the person themselves as well as their descendants for generations to come. Ultimately the 18 years of child rearing is a blip on the radar of our lives since the average lifespan is more than 46 years old and most people eventually have offspring.

  4. well i am not one of the litigants, but for the record iv’e never said that children are best raised within a marriage, i believe their best raised within a marriage of their own two biological parents.

    • This isn’t always the case as divorce can be messy and children are a lot of times put in the middle. The result is a damaged child who lives with one parent and has visitation with another. Often the parent who is the best fit is the one who has visitation rather than custody.

      • Yes but divorced parents still raise their kid together. There are two of them and each is making some level of contribution no matter how small the kid is still raised by both unless one or both are estranged/

        • Not when they have two different addresses they aren’t raising them together. The parent who has custody is doing the raising while the one who has visitation has a secondary role.

          • Really so millions of parents who are living at separate addresses sharing custody, providing physical and financial support and are making joint decisions together about where their child goes to school and where the kid goes on vacation and what extra curricular activities the kid does and what time is bed time and how old is old enough to walk or ride a bike to school – you are really going to sit there and say they are not raising their children together? Legally you are incorrect. You know that right? Your point is only supported by your emotional feeling on the topic and is not supported in fact by the law.

            You just view married parents as superior to unmarried parents. You are a marital parent elitist.

            • My point is it is incorrect to say that divorced parents raise the kids they conceived together. They don’t legally and emotionally. The law is too complicated for you to fully comprehend.

              • “My point is it is incorrect to say that divorced parents raise the kids they conceived together. ”

                Your point is that its incorrect to say divorced parents raise their child they conceived together. Raising children is supposed to be a collaborative effort between the individuals that put the kid in a state of dependency. When parents separate physically it does not mean they get to stop collaborating in the child rearing effort. They will be ordered to cooperate in that effort by a judge and if they refuse to do so the judge will draw up the rules for both parents to play by. The law is not too complicated for me to fully understand. You go get the law that says divorced parents are not expected to still jointly raise their children together. Lets say its not even 50/50 which most often it is – lets say its 75%-25% at the end of 18 years they still raised that kid together and both participated in the child’s care and upbringing. So try me try proving what you are saying with something other than your opinion for once.

                • If one parent has custody while the other just as visitation living under separate roofs, how exactly are they parenting the child together on a day to day basis?

                  • Lots of ways Greg. Their job as parents is to cooperate with one another. When one parent is watching the child they are presumably following guidelines that both agreed to – such as a bed time that is consistent with one set at the the other house or penalties for bad behavior that sort of thing. Also they communicate as necessary to inform one another of significant events coming up like science fairs doctor appointments and parent teacher conferences and if their kid got in trouble at school for fighting with another kid or whatever. The parent who does not have the kid that day will call at bed time to say good night. In short they have to try to cooperate putting their child first and themselves second.

                  • John Howard

                    Sometimes divorce happens, and the parents stay parents. “My parents are divorced” is a very common phrase that everyone understands. We understand step parents too. Divorce doesn’t stop a parent from being a parent. But kids feel torn “between two worlds” and wind up with less of a confident self-identity, they face all sorts of problems and grow up too fast, with emotional baggage that can last a lifetime and affect their own kids, and all of society suffers. We shouldn’t encourage divorce or normalize the effect on kids by reducing all families down to divorced families by refusing to celebrate or expect marriage. That doesn’t mean people should stay in abusive marriages for the kids, but it does mean we shouldn’t say marriage doesn’t matter and people can have kids with unmarried progenitors and just raise them “together but apart” like divorced parents do. We don’t have to allow people to intentionally do that, there is no right to intentionally create people, only a right of marriages to have sex and possibly create people.

                  • “Sometimes divorce happens, and the parents stay parents. ”

                    Maybe in title they are still parents but in the actual work that comes with being a parent the parent with visitation is not as much of a parent.

                  • John Howard

                    How about “my parents are dead”? Have you ever heard anyone say that? Do you correct them, and point out that there is no such thing a dead parent, they aren’t parents anymore?

                  • Though of course “my parents are dead” could just as well refer to adoptive parents who have died, and isn’t usually interpreted to mean “I had DNA testing done on my parents and confirmed that I am their biological offspring.”

                    Marilynn is right that parents need not be married to each other to both be parents and doing right by their children in raising and being responsible parents, even if they are not with the other parent all the time, sleeping in the same house. They can even be 80/20, or 99/1, or even 100/0 (perhaps the parent is off at war, or a drunkard, but still a legal parent).

                  • “But kids feel torn “between two worlds” and wind up with less of a confident self-identity, they face all sorts of problems and grow up too fast, with emotional baggage that can last a lifetime and affect their own kids, and all of society suffers. ”

                    I agree completely John. This is something others are in denial about. Divorce damages children and separates families. This is why IMO married couples have an obligation to make sure their marriages are stable before having children and those people who choose to have a child to save a marriage are doing so for selfish reasons, IMO.

                  • Greg when you spoke of the parent having visitation not having much of a roll in raising kids it feels to me a like a good time to stick up for the old fashioned bread winner. I want to highlight the 50/50 nature of parents and child rearing efforts an even support orders for divorced or unmarried parents. It takes money to raise a child which means one works while the other watches the kid or both work while a third person watches the kid like daycare or school or summer camp or a babysitter. The modern way with both people working does leave kids in the care of people who are not parents most of the hours of every day and both parents are putting in their share of support financially and physically to keep the whole thing running. If one parent is home all the time taking care of the kids and home schooling them the other parent is absolutely gone most of the time toiling away to earn enough money to support that child rearing effort. They are not the one whose really there dealing with child care duties hardly at all. They might have dinner with their kids a couple nights a week but more likely they are in bed or about to go to bed when they get home and they won’t have much energy or patients left to deal with their kids. That is the classic scene of dad blowing his top at his kids fighting when he just gets home from work he’s tired and just wants to eat dinner watch tv and go to bed. He’ll spend time with his kids on the weekends for outings and activities that are fun but he’s not the one taking them to the doctor appointments an he misses things like first words or first steps – but he is raising his kids with his partner and the effort is 50/50 because he is providing the money to fund the care giving effort by his kids mom. He’s involved with major decisions and is informed with major milestones but pretty much he’s just saying good night to them each night while the care giving is hanled by his wife. It is one way to divide the work. It may in fact make more sense than both working an having a third person take care of their kids for them because at least one parent is really with their kids all the time. Both could do part time jobs on opposite shifts and then they’d be doing an equal amount of care giving but it’s hard to come up with those arrangements. People strike their own balance but generally one will wind up feeling like they do all the work while the other is gone working but they forget that the one that is gone is doing their fair share too. When courts split up the financial burden of support they balance it so that if the kids are with mom and dad equal amounts of time and they both earn the same amount of money their burden of support will be equal. If the split looks more like the traditional family set up where mom is home all the time with the kids and dad just sees the kids on weekends he’s going to have a much greater support burden just as he would if he were home and his wife were staying home. It is ultimately 50/50 and they are raising their children together. We tend to overlook the importance of the breadwinner and act like they are not raising their children actively but they indeed are. They are showing a commitment to their children’s future by providing them with the resources they need to grow up safe and healthy and that is very important. Much Dad bashing goes on by Mother’s and its not entirely fair. Fathers who live outside the home are more responsible today than ever before in history. They remain deeply committed to their children and their children are closer to them than ever before in history as well. Don’t assume that divorcing means kids loose a parent. It’s not great or optimal but the law tries to ensure that both parents are contributing their fair share to their kids and its up to the parents to make the effort to cooperate with one another.

                    So divorced parents are not abandoning their parental duties the way parents who just don’t do any of what they are supposed to do and don’t make emergency provisions to ensure that someone does it for them and that the someone doing the work is suitable for that effort. That’s the difference between strait abandonment like donors do (unless they are personal friends) and parents who relinquish their authority through the court systems like guardianship or adoption. One of the problems with donor arrangements is that it requires abandonment rather than relinquishment. The law waves criminal penalties for abandonment for donors because its easier and because its a multi billion dollar industry. The result is millions of people born who are not afforded equal protection against parental abandonment.

                  • But reality is Greg that nobody can ever be completely sure their marriages are stable or they can be stable one minute and not the next.

                  • John
                    LOVE THIS
                    “How about “my parents are dead”? Have you ever heard anyone say that? Do you correct them, and point out that there is no such thing a dead parent, they aren’t parents anymore?”
                    That really drives the point home that you can be a parent without raising your kid. Your mother could have died in child birth. Your parents could be killed in a car crash on your way home from the hospital leaving you to be raised by your grandparents – they would not be your parents just because they raised you. Raising a child does not make a person a parent.

                    Also people would probably assume that you don’t mean adoptive parents when you say “my parents are dead”. Your audience is going to apply the commonly understood meaning of the word mother. Everyone has a mother that they are maternally related to but not everyone was raised by that woman. People don’t necessarily assume that your parents raised you because like you said they can be dead parents or also estranged parents or dead beat parents but are parents in the commonly understood sense none the less. People assume biological unless a prefix is added. Which is precisely why an adopted person is apt to feel lied to and betrayed if they are never told they are adopted but their adoptive parents go around saying they are just parent’s no prefix – obviously the kid will reach the conclusion they have no other parents because the prefix is missing. Its lying by omission. So now they lie by omission publicly in their daily interactions with the world but tell the truth privately in secret to the adopted person so they are in on it at least.

                  • John Howard

                    “who choose to have a child to save a marriage are doing so for selfish reasons, IMO.”

                    Yeah, any intentional creation of children to be parents of is selfish, using the children as means to the adult’s ends. On the other hand, marriages have a right to use contraception and to intentionally stop using contraception and even try to have the most fertile sex possible, and have a right to privacy that seems to mean a right to do IVF as well.

                  • John Howard

                    “Also people would probably assume that you don’t mean adoptive parents when you say “my parents are dead”.”

                    Yes, but that’s OK, Marilynn. Adopted people don’t have to make sure “people” know they are adopted, or donor conceived, or the product of rape or an affair. They are allowed to refer to their adoptive parents as their real parents, and flat out lie to people. They don’t even have to tell dates they are adopted when they bring them home to meet their parents, they can even lie to spouses.

                  • “Yeah, any intentional creation of children to be parents of is selfish, using the children as means to the adult’s ends.”

                    That’s not what I was saying. What I am saying is that in cases of marriages being unstable they should not try to bring a kid into it to save the marriage, IMO. If the marriage is stable and they want kids that is the time to intentionally have kids.

                  • G you are diminishing the parental relationship to the work done by the parent. The work done by the parent is a strong factor, but not the only factor, that determines what the meaning of the relationship will be. Sometimes people end up with a stronger relationship with the parent that didn’t do the work. Fair? that’s the wrong question, because relationships aren’t a reward, they just are.
                    Whats more, not doing the work of a parent, does not mean the person becomes a non parent. It makes them a bad parent, and their children are likely to have anger and negative feelings about them for being a bad parent, which they would not have towards a total stranger.
                    point is that being a parent is a relationship, and not a job. the relationship doesn’t disappear because a person isn’t doing the work.

                  • Ki’s most recent response is perfect

                  • “point is that being a parent is a relationship, and not a job. the relationship doesn’t disappear because a person isn’t doing the work”

                    And relationships out of obligation have less meaning than a true relationship that has meaning for both parties. A relationship out of obligation becomes very job like. Sure with what you describing that person is a parent in title but does that child have a true parental relationship with their “parent” or one out of obligation. You’d have to ask them.

              • “And relationships out of obligation have less meaning than a true relationship that has meaning for both parties. A relationship out of obligation becomes very job like. Sure with what you describing that person is a parent in title but does that child have a true parental relationship with their “parent” or one out of obligation. You’d have to ask them.”

                But since the purpose of the blog is to discuss family law, we are chiefly concerned with who has the obligation to raise a particular child – not who wants or does not want it. If we shift importance from who has the obligation to who wants the obligation then we open the door to people who don’t want the obligation selling their children to people who do want the obligation, or at least giving them away like gifts to those who want the obligation. That is where we are at by the way because there is a line of thinking that bio parents can take their bastard children and sell them because they don’t count as much as ones they’ll have with a spouse. Sometimes they are selling them off to their own mothers or fathers who would not keep the bastard child themselves were they not permitted to falsify their paperwork to make them look like the non-bastard children of their marriages. Bastards are like a lower class of people whose identities are subject to manipulation for their own good and for the good of others who agree to take them in and feed them and put up with them. All they have to do is pretend not to be who they actually are.

                Greg you yourself have said that nobody would want them if they could not rename them and make them be part of their families as-if they were their own offspring. If they could not make them over in their own image it’s nothing more than glorified babysitting. Nothing more than providing a loving home for a child in need of one and who would want to do that for some kid that’s a member of someone else’s family? If the only reason people adopt is to become parents of their own children then the children they adopt have to become someone else in order to be adopted. Super sad. Obligation is the thing the law should be concerned with that way all minors have equal rights. Otherwise only the wanted minors would have rights.

                • “But since the purpose of the blog is to discuss family law, we are chiefly concerned with who has the obligation to raise a particular child”

                  No, Julie can clarify what her purpose of this blog is but in cases like this the goal should be to have the law favor what is best for the child. Is what is best for the child to be raised by someone who will parent out of obligation and go through the motions or should it be with someone who a child is engaged with and has a relationship with? Thats the question I see a lot.

                  I know you are trying to bait me into another blow up with your closing paragraph. But out of respect for Julie I’m not going to bother to respond to it.

  5. I think there needs to be flexibility within the law and decisions on who are legal parents be done on a case by case basis. What is best for the child isn’t necessarily black or white usually it’s a shade of grey. I don’t think putting marriage or biology as a top priority is always going to be what is best.

    • The problem with having cases decided on a case by case basis is that it’s not law that can be counted upon by all people all the time. If one time the bio father is obligated and another time he’s prevented from fulfilling his obligation then you have a situation that is not fair to either the father or the child or their larger family of relatives who are also impacted by loosing legal kinship. It should be a rigid set of rules. Where the case by case should come in is when the bio parent has been found guilty of breaking other laws and having that parent take custody would be unsafe for their child. There is your case by case.

      Case by case based on who wants a child more or whose done more work is objectifying to the child rather than assigning the child a certain set of rights they can rely upon. Their accurate identity and legal rights currently hinge on opinions about who might be better so that a child could loose their right to an accurate identity and legal kinship because their bio parent is not married or is poor or was not supportive during their mother’s pregnancy before they even existed as a person. Parental title is not a reward for good behavior it identifies a relationship where one person is responsible for the other’s existence and needs to be accountable for that.

  6. “One is about producing children (which, it is argued, is no longer inevitably linked to marriage) and the other is about raising children (which, in the view of all the litigants, should be linked to marriage.)”

    It’s nice to see you make this distinction. Marriage is about the right to produce children, but is not a right to raise children. A married couple can have their children taken away, but they cannot be stopped from conceiving more children (except in China where they are only allowed one child together). They can produce children without asking anyone’s permission or filing any paperwork, but acquiring children to raise requires adoption agencies and home screening, etc (and marriage is only one factor, and not a requirement, that an agency uses in choosing a family).

    Of course, the idea is that this way children are only born to couples that are committed loving couples already obligated to care for each other and live their lives together, and so will raise the child together. The expectation is for them to raise the children that their marriage produces (but again it’s not a requirement, even married couples can put their children up for adoption or even drop them off at firehouses anonymously). But married couples can divorce, and we don’t prohibit divorce just because they have kids. And they can divorce even before the kid is born, so that’s why we don’t even worry about being married in the first place anymore, we just treat them like divorced parents as far as supporting their kids go.

  7. The distinction between producing and raising children is why it is acceptable to raise existing kids in divorced or single parent and step parent situations, but not OK or a right to produce children intentionally into divorced or single parent or step parent situations. If we say it is OK to intentionally create children into those situations, then it is hard to say that parents should try to stay married or be married in the first place, and yet we agree it is good. We can support existing kids and families while still prohibiting sperm and egg donation and intentional unmarried conception.

    • “then it is hard to say that parents should try to stay married or be married in the first place, and yet we agree it is good.” But the reason we’d say its good for parents to be married is the same reason its good for anyone to be married. You have to hope that they married because they want to be together and not because of chldren

      • Right, and that’s why we hope that people don’t even become parents unless they are already happily in love and committed and wanting to be with each other and not other people, and consenting to take on the obligations of being parents with each other, knowing each other well enough to make a fully informed choice, and crucially knowing that the other person is equally fully committed and consenting and in love with you. Otherwise, absent that, they shouldn’t become parents together.

      • and there are some types of relationships that don’t have a right to become parents or marry each other even if they consent and are in love and committed to each other. Siblings, fathers and daughters and a bunch of others are usually prohibited in the state laws. The harms and costs to society and families are enough that we prohibit them and even put people in jail for some of them. We can’t look at the connection of marriage and parenthood without noting those relationships that show where marriage and procreation are still very linked, and without noting the opposite set of couples that are allowed to marry and procreate. There are no relationships allowed to do one and not the other.

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