The Problem With Hierarchies of Parental Rights

I’m returning to a theme I’ve written about before here.  I’m doing this for two reasons.  First of all, before is about four years ago and many readers may not have been readers then (or if they were, they may have forgotten about this).   In addition, I am a different person today than I was then (then being 2010) and so perhaps I have something different to say.

In fact, I think the same thing has moved me to write today as moved me to write in 2010:  Michael H vs. Gerald D.   I won’t discuss it in any detail here.  You can read the opinions (though it’s not an easy slog) or you can read the earlier posts about it.   But for today’s purpose a quick outline will suffice.

Carole was married to Gerald.  She had an affair with Michael.   She got pregnant and Victoria was born.   Victoria is (let us assume, as it was a 98% likely proposition) genetically related to Michael.   Carole and Victoria live for a time with Michael and for a time with Gerald, but eventually it seems that Carole and Gerald reconcile and settle down.   Michael, who by then has an established relationship with Victoria, wants to maintain contact with her.  The CA courts deny his requests and the case ends up in the US Supreme Court.

For at least some of the justices, the question is whether the US Constitution requires that Michael be recognized as a legal father (or at least recognized as someone with a legally significant relationship with Victoria).   (I think it’s pretty clear that if CA had chosen to recognize him as a legal father that would have been constitutionally permissible.   But CA didn’t grant him that recognition and so you can see the question as being whether CA was required to do so.)     And the answer the Justices who see this question provide is, I think, “no.”

In support of his claim Michael invokes 1) genetic relationship and 2) social relationship.   From some earlier cases (in particular Lehr, which I’ve also talked about elsewhere) there was some reason to think that these two things taken together might have been enough to give Michael some sort of rights.   But under the circumstances here, it didn’t work out that way.

Which brings me to the circumstances.    The key thing, it seems to me, is that Gerald was also claiming legal parenthood–using the marital presumption that has been frequently discussed of late.   CA chose Gerald over Michael (as a matter of law) and one way to understand the Supreme Court opinion is that Court says it’s entitled to do that.

I think this is evidence of a hierarchy of parenthood.   Gerald beats Michael.  But what if Gerald hadn’t been there?  Suppose he had died and Carole sought to place Victoria for adoption somewhere else.   Would Michael have been entitled to object?  I think he would have been.   Or suppose Gerald and Carole had not been married, but that Gerald had wanted to claim paternity anyway?   Without the marriage, I think Michael would have prevailed over Gerald.  (Michael, after all, has genetics.)

But does it make sense to think about a hierarchy with respect to constitutional (as opposed to statutory) rights?   It seems to me that either Michael has a constitutional right to have his relationship with Victoria recognized or he doesn’t.   That decision should be based on the connections between Michael and Victoria–not on the connections between Carole and Gerald.   How can Carole’s marriage to Gerald make Michael’s right vanish?   It just seems to me you cannot use this sort of hierarchal reasoning to determine if there are constitutional rights at issue–to say you have no right if someone higher up the chain claims a right.

Now it may be that when it comes time to figure out how to translate recognition of various relationships into actual time with the child you think about who else is in the picture and which rights ought to be primary.   That’s sort of conventional legal balancing.  But the idea that you look at who else has rights to see if I have rights seems very odd to me.

I suspect this is rooted in the idea that only one man can be Victoria’s legal father–which means it becomes a zero-sum game.  If Michael is, Gerald cannot be and vice versa.   Most rights I can think of aren’t like that.   But of course this model is exactly what Victoria herself wanted to challenge.  (She wanted relationships with both men.)  The Court couldn’t contemplate that.  But it seems to me that, if we’re looking at who has rights, that might be a better way to go.




24 responses to “The Problem With Hierarchies of Parental Rights

  1. OK why do we completely agree? Where are you going with this? I feel a trick up your sleeve like your going to get me or those that think that way to get on the bus and then you are going to drive to a different location. It’s almost like you did not write this.

    It is absurd that the bio father would have the obligation if Gerald were not there but they just wipe away the obligation since he is there. If they focused on what the child should have a right to rather than what either of the men should have a right to it would be quite clear that if she has a right to her bio father’s support and a relationship with him when her mom is not married to Gerald that she would still have that right even if she is married to Gerald because there is a category that Gerald can fit into and still be part of her life in a way that does have legal weight like access to benefits through him etc that is step parenthood which does not interfere with her right to care and support by her father. If millions of other kids get to keep their rights to their fathers while simultaneously gaining rights through their step fathers or mothers depending upon who they marry, then why do we short change some minors this way? It certainly is not fair that the child’s right to care and support would turn on who their mother happened to be having a romantic relationship. It does not change the fact for medical reasons certainly naming her step father is not accurate in that regard. She’ll suffer a loss if her step father is named. They could all just work together cooperatively for her benefit to ensure she looses nothing. This is what happens that is so horrible when Mother’s put their relationships with their spouses before their relationships with their kids.

    • I don’t think I have a trick. It seems to me that Michael either has rights or he doesn’t. And that determination depends on his connection to Victoria. I’d say the same thing vis-à-vis Gerald. Michael’s rights (at least in the abstract sense) shouldn’t depend on the presence/absence of Gerald and Gerald’s shouldn’t depend on the presence/absence of Michael.

      Now I do think that if you figure out that Michael rights then you have to figure out what should follow from that–in real ife. And if both Michael and Gerald have rights (which seems to me possible) then you have to figure out how to actually structure Victoria’s time. And it might be (at this stage) that because Gerald has rights, Michael gets less time with Victoria than he would have had Gerald not had rights. So it’s not like Gerald’s existence is irrelevant to the final resolution. But it shouldn’t be relevant when you are trying to figure out if Michael has any rights.

      • I agree Julie. This is where I was getting at where I think there needs to be flexibility in these decisions on a case by case basis. As the case with divorce custody cases where there is flexibility the same should apply in these cases.

        • I tend to think it is a bit more complicated than that. There are places where we need flexibility (and should have it) and places where I think clear rules are beneficial.

          There’s a two-step process at work. First we identify the legal parents of a child. That’s a place where I think clarity about the rules might be helpful. But once you identify the legal parents (however you do that) then I think you might want flexibility to balance how the parental rights get implemented–who gets time when, etc.

          Perhaps both Gerald and Michael should be legal parents. That would give them both rights vis-à-vis Victoria. And that’s the sort of question I think about here.

          But then what that translates to in real life? Not sure I can say

          • Well lets look at how the state and federal government confirms who the parents of a newborn are. You have said bio parents are like back up child care in case nobody better wants to raise the kid. I think the term you used was they can be ‘swept aside’ in the event someone we like better comes along. Wow. But still where does that leave men in terms of legal expectations? You got to go with the worst case scenario for prudent planning obviously. Nobody should be making their life plan around what would happen if they won the Irish Sweepstakes.

            Julie lets look at what a biological father truly has a right to expect from a slightly different angle. You are raising a male, would you advise him or any young male of reproductive age to do anything other than expect to be held fully accountable for his his offspring as a parent regardless whether he’s married to the girl or not and regardless whether or not she’s married to someone else? I mean if there is a reasonable suspicion that he might be the father he should not be aghast if he’s ordered to take a paternity test by the court and not broadsided and outraged when his little summer job pay check is garnished for current, future and back child support. He really has a right to rely upon nothing other than being legally obligated to the care and support of all his offspring regardless of how he feels about the girl he gets pregnant or whether he feels ready for the daunting task of parenthood. If he were to perceive parenthood to be a burden then he should be aware there is only a slight chance of him being off the hook – that is not recorded as a parent of his own kid and its not a chance he can take to the bank. Maybe she’d be married and maybe her husband wouldn’t care that she’d cheated and maybe he would be willing to pretend he’s the father and let himself be named on the birth record but then again maybe he won’t put up with that and maybe he’ll dispute paternity and win by a landslide. Or maybe she might get married and her husband might want to do a second parent adoption but if not tough luck, his kid his responsibility. Really bottom line is that he’s got a right to expect that he’ll be obligated as a father if he becomes one due to the existence of his offspring – unless the mother wants to hide him. Not that she should have that kind of power to wave her child’s right to support from him but she can do it tricky style sadly if it suits her whim at the moment.

            Now I actually believe people have an interest in raising their own offspring such that they might have the right to rely upon the state to hold them personally accountable for their own young unless they are found to be unfit and are convicted of a crime there is no reason to for the bio parent to expect anyone else to raise their child.

            A woman who gives birth to an unrelated child and male and female genetic parents who did not give birth are equally positioned in terms of being prepared for parenthood. Child rearing is nothing like being pregnant and is not the litmus test of superior child rearing skills just look at who the parents are of all the kids in the CPS system. So if you are going to put bio fathers in that precarious position put birth and bio mothers there as well. Let none of them have the expectation for caring for their offspring or caring for the child they deliver and hand the kids out to the best qualified individuals, the ones with the most money who have been waiting longer for a child they’ll appreciate the child more. Fair is fair.

      • If the biological parent is the fall back safety net in case other more palatable options are available, then the biological parents are the only people that human beings have an automatic right to rely upon for support at birth. Basically if nobody else wants to buy them then they are the bio parents responsibility. So that means the only people on earth that a minor can be said to have that automatic right to receive care from is the bio parents and then I guess its basically up to them whether they want to offload their support obligation to someone as a gift or possibly for a small profit or as a last resort through court approve relinquishment. So basically the child has a right to their biological parents but their bio parents can do whatever the hell they want with them. Wait bio motther can do whatever the hell she wants with them. That is where this goes since right now you have proven that the bio father has no obligations sometimes he should have no obligations ever.

        The minor does not have the right to expect that there will be a more palatable option for support than their bio father but they have that automatic right to support from him if nobody else better is around. Except if they are the offspring of a donor and then they don’t have the right to support from donor bio parents which puts them in a very bad disadvantage

        How do you deal with timing in your theory? Like if a parent got very ill and their kid lived with their sister for a year. The sister would not be a paid babysitter an would be forming a parent like bond with the child – the child might come to see their aunt as a parent. would aunt helpful have a claim to be a legal parent? OOO would she have an obligation to be one? Could Mom go to court and sue her sister for child support as a defacto parent? And what percent would the aunt have to pay if there was a father paying support but fighting in a war in a forign country somewhere? Would it be 1/3? Would the government then have to pay benefits on all three if they died in a car accident together? Step parents you get benefits from and you still get benefits from absentee parents too.

        Where would step parenthood come into play? Cause I’m assuming they could meet your criteria they could make their claim or be sued for support at any time. Would step parenthood simply cease and they just become the anothr legal parent? so many questions

    • its not absurd from the states perspective because the state does’t really care who fulfills the obligations as long as its someone. so at the state level, the hierarchy makes sense. I actually support hierarchies although i might set them up differently than the state does.
      Julie is right, its at the constitutional right level that it doesn’t make sense.

      • Its absurd from a government standpoint because the financial interests of the state are at odds with the public health interests of the state. You have these two different agencies that ultimately deal with health and welfare of the general public sort of at odds. You have Children’s welfare worried about the amount of money it has to shell out when it can’t locate a bio father ready to accept any Tom Dick or Harry or Henrietta as the 2nd parent just so they can reduce the potential for the state underwriting the expense of raising children abandoned by their parents, so they are willing to forego the court approved adoption proceedings which they know protect children from being objectified. Then you have the Health Department which is recording all this false information cranking out bunk fertility rates and faulty medical research results. Like the financial thinkers never asked the health department ‘hey will it screw you up if we just record adoptive parents names on original birth certificates because it’s faster and cheaper for us to do this black market style and people seem to like pretending to be biological parents – does that work for you with your medical research on birth defects, heritable disease and all?

  2. nevermind i re-read your old post and see you said the same thing only you said the bio parent is there as a back up to be pushed aside in case of a more suitable candidate selected by Mom. I knew it was too good to be true. You don’t think its unfair to have the rules change based on other people’s relationships.

    • I haven’t read what I wrote before, so cannot speak to that. But I don’t think I’d agree to your characterization. As I tried to explain above, I don’t think the presence of Gerald should effect the analysis of whether Michael has rights. But I do think the presence of Gerald (if he is a parent, too) is something you might need to take into account when you figure out how you are going to actually recognize whatever rights you think Michael has.

      • I think family law could get rid of the terminology ‘parental rights’ and replace it with parental obligations instead. I think it’s reasonable for parents to have the expectation of having to fulfill their obligations for their own children but it seems clear that it’s their offspring that have the legal right to care and support from their biological parents because they caused their dependent state. If a child has a right to depend upon their bio parents for care and support that right should not disappear when their parents are married to other people. That is why we have step parents. If you compare the rights of 2 people whose bio parents are married to others where one has a right to both bio parents and then the right to added support through their step parents while the other has no right to both bio parents and has their step parent stand in place of their absent bio parent, there is clearly a looser and that is the minor who looses their bio parent to gain what they would have gotten anyway from their step parent. Its an obvious loss of rights to the person being raised.

        • Maybe step father’s should be called step mothers because they are not actually there to replace the child’s father but rather bolster what the mother is able to provide. The fact that he’s male make’s it appear like he’s standing in place of the father but really he’s just made the mother bigger, he’s on the maternal team, not the paternal team. Likewise any woman married to the father really is not there in place of the mother, she’s on the paternal side bolstering his ability to support. Mom and Dad maternal and paternal don’t change. Adoptive parents you have actual stand-in-place people that are supposed to fulfill the absent mother and father’s rolls so one is doing what mom would do and the other what dad would do in terms of responsibility. There is obviously tremendous loss for someone who is adopted. Much of that loss is legal rights losses that could be corrected by not thinking of the rights to care support an identity from the bio family as something that can be wholesale replaced by surrogates. The fact that their bio parents don’t want to or can’t take care of them should have no bearing on their rights to receive those things – even if their rights are violated by a parent who refuses to fulfill their duty the child should still have the right to their social security death benefits if they die for instance. It’s all just not fair to the kid forget the adults and their rights for a moment. There is no excuse that some children get the right to their bio parents support and the benefits of having a step parent while others loose their rights to their bio parent an get the right to have their step parent pretend to be their parent. Just let the kid have their parents and call the spouses step parents end of story.

          • We usually assign rights to individuals. So an individual (say a mother) might have parental rights. Now you could say her new spouse has rights only to the extent she gives them to her/him. I think that’s sort of what you’re suggesting? This seems to me close to saying that the spouse doesn’t really have independent rights–because it suggests that when the mother doesn’t want the spouse to have rights anymore she can end them. But maybe that’s not part of your picture.

            Perhaps a larger point is that I don’t think I use “step-parent” the same way you do. Neither Michael nor Gerald is exactly what I think of as a step-parent. (You don’t need to go cite the dictionary to me (and I don’t know what it says. I think we’ve run into this before–you’d call a lesbian co-mother who was around from conception on a step-parent, as I recall. I think that sort of drains the term of meaning.)

            • we discussed the term step parent in the past… in my view the term step parent and legal parent are mutually exclusive. a person may have started out as a step parent but once they are legally recognized as a parent, i would no longer term them a step parent anymore.

              • do you mean when they become an adoptive step parent? Because the courts refer to them as adoptive step parents to describe the origin of their relationship. Step parent with parental authority.

              • Agreed K, especially in cases where the child recognizes that person as their parent.

                • colloquially maybe, but in reality is their dead father no longer their father? Medically is their father no longer their father? What you don’t want to grasp is that putting someone else forward as father puts their father and his relatives on the back burner and lessens their importance. When the step father already has a defined and named relationship of his own that does not denigrate or conceal the nature of the fathers relationship to his child.

                  • If a child feels that non bio parent is important enough to them to be thought of as a parent then I don’t think we should deny that to them. Is this truly about the child or is it more about the bio family? For me it’s about the former.

            • You have taught me that when the spouse is named on the birth certificate they are the legal father because he’s presumed to be the bio father and people just don’t seem to give a hoot if he’s not unless he complains. In reality his kinship position is either just spouse of the mother or the term is step father. Lets again forget about parental rights but go rather with obligations and he has the same obligations as his wife, he’s working with her for her on her share of the work and his obligation comes through hers because he’s married to her. He would have to provide medical insurance and food and stuff if he’s capable of it as part of what she does for her kid. The father still has his obligation maybe he has help from his spouse maybe not. I don’t see why it matters when the kid is born before or after because the spouse still winds up on the hook for support during their marriage. She’s not permanently attached to her spouse why should he kid be when they already have a parent that they are permanently attached to? If they are going to be forced to have a life long legal relationship with someone shouldn’t it be to someone they have a permanent relationship with? If hers is temporary with the spouse why not for them too?

        • I’m not sure I’d get rid of “parental rights” but it is certainly reasonable to think about both parental rights and parental obligations. In general we lump those together and legal parents get both–the obligations of care and support and the rights to make decisions and control the child. I’ve occasionally suggested that we rethink linking them and assign rights and obligations separately–though I wouldn’t bar assigning both to the same person when that makes sense.

          But even if you do that you still need a reason to assign the rights/obligations in a particular way, which is, of course, the subject o the blog generally. I understand that assigning them via genetics seems obvious and/or natural to some people. I imagine others would say assigning rights/obligations to a woman who is pregnant/gives birth is obvious/natural. But ultimately, what seems obvious/natural isn’t necessarily the right inquiry. I’d say for any proposed assignment of rights/obligations there needs to be a justification based on an argument about what is best either for children generally or for society generally or for both. (Which is far enough afield from the beginning of this for now.)

          • It’s interesting though – think about how you are trying to split out what is an obligation and what is a right…none of it is benefiting the parent like they are not receiving anything – it’s all duty, all obligation. They have the obligation to make sound decisions on behalf of their child. They have a duty to plan their time and pick their school and decide what they eat for dinner etc cause if they don’t do it nobody else will and then I think that is what’s called neglect. I think everyone is going to view their legal obligations and responsibilities through a different lens – maybe many different lenses on different days but the law is suppose to be blind to whether we find those obligations burdensome or joyful.

            Some people enjoy gardening and are not bothered in the least by having to keep the bushes trimmed back from their building and adjacent properties and have no problem with not letting flammable
            car parts and newspapers and junk accumulate in their front yard so complying with city fire regulations and DPW requirements about blighted property is no problem for them. Other people feel like its their property and if people don’t like what they see they should close their eyes and mind their own business they have better things to do than make their yard pretty. So bottom line is we don’t care if they don’t feel like it, they have to do it and if they don’t the city will do it for them and send them the bill. Don’t know if the analogy is totally appropriate but some people want to make decisions on behalf of their children so to them they see the obligation as a right but to a 17 year old boy who is still thinking of keggers muscle cars worrying about bed times and dentists might see the obligation as a burden. We don’t care if he sees it as a burden he’s going to be accountable for his share of the work like it or not – unless I guess the mom want’s to sweep him away in favor of someone she likes better. sheesh.

          • So is it best for society to have a default that everyone can rely on or is it best for nobody to have any rights at all and have the outcome of every case be totally dependent upon who wants the kid the most and the judges personal feelings on the matter? Flexibility should be limited to when the default individual is dead or disabled or convicted of a violent crime and even then – they should be named and then an adoption should occur. No need to skip that step..

            • Cause the bio parents are first to be recorded first in the chain of authority. If they were not then nobody would be having them sign papers abandoning their parental rights. People who are not parents don’t have to give up their parental rights because they don’t have offspring that they are not raising.

          • We live in a society that increasingly eschews marriage or where children are split up via divorce. Marriage is no longer the arbiter of parentage. The definition of personhood is birth, no? The only absolute way to know who is the mother and father of a child is DNA. If a married woman has sex with a man who is not her husband and a child results from that, she shouldn’t be allowed to cut off the rights of the child merely because of a piece of paper that she didn’t respect in the first place. The husband needs to put on his big girl panties and deal with the fact that he’s not the father. Could that cause a divorce? Over 50% of marriages end in divorce, I seriously doubt that the continual recognition of marital presumption is going to make that number that much larger.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s