Through A Child’s Eyes?

I know I have been inattentive and remiss as far as the blog is concerned.  My apologizes.  I have many things to comment on–all in open windows on my computer, which makes me nervous.    This may mean you are in for a string of brief and perhaps not adequately well thought out posts.    Think of them as conversation starters, perhaps.  

Anyway, before I even turn to that, I wanted to toss something else out there.  This is generated by some conversation we’ve had in a class I am teaching this semester.    We’ve been talking about the constitutional protections for the parent/child relationship, and it is all pretty much from the point of view of the parent.   Thus, the courts consider whether adult X has a protected relationship with child Y.    But every now and then someone asserts that child Y has  a protected relationship with adult X.   There isn’t a very good framework for thinking about  that.   

Who’s Family?

It’s late at night and so this will have be quite short.  According to the New York Times, there’s a new study out of Indiana University.   For the first time, a majority of Americans surveyed say their definition of family include same-sex couples with children.   This is so whether the couples are married or not.   The story notes that unmarried co-habiting couples–same or different sex–are not considered family in the absence of children.  

No idea what to make of it at the moment, but it seems sort of interesting.   Note the closing quote from David Blankenhorn, one of the proponents’ experts in Schwarzenegger v. Perry, a case I’ve been discussing here.

The Interests of Children

I was reading through the comments to earlier posts and, on more than one occasion, people either invoked or asked about the interests of children.   I’m sure I’ve discussed this before (though I cannot locate the post just now…so much for tags?) but it’s good to revisit it from time to time. 

I try to keep this blog mostly focused on how we determine who are the legal parents of a child.   It’s obvious that the well-being of the child is implicated in this decision.   But where exactly do we/should we take it into account?

Perhaps the most surprising thing is that generally speaking, in any given case with any given child, we do not ask what is in the child’s best interest when we are trying to figure out who the child’s  parents are.    To see why, you might think about what could happen if we did consider the child’s best interest at this point.  

News in Brief: What it means to be a parent

Here is a sad story that graphically illustrates the importance of being recognized as a parent.   I don’t generally write about this–though it is where I began this blog, fourteen months ago.   Generally, I take it as a given that being a legal parent is important.

The parents in this story believed in healing by prayer.   As parents, they are generally entitled to make medical decisions for their children.  When their 11 year old daughter became ill, they turned to prayer for healing instead of a doctor.   Because we are respectful of a legal parent’s rights, they are entitled to do that—up to a point.  This is a case that (should I add “it is alleged”?) went past that point.

The daughter had juvenile diabetes.  While this is a serious condition, it is treatable.   It does, however, require medical intervention followed by medical management.    Untreated, juvenile diabetes can be (and in this case was) fatal.   The young girl–11 years old–died. 

Suffering Loss

On one level I cannot believe that I am going to start yet again with something about Nebraska.   But this is to raise a much broader point.

There’s been a bit of coverage of the hearings to change Nebraska’s safe haven law.   What struck me about the story I linked to is the discussion of the harm done to children who are abandoned by their parents.    It seems to me there are two parts to this harm.  One is the knowledge that the parent has abandoned the child–has chosen to separate from the child.   The other is the actual disruption of the parent/child relationship.   As the article notes, many of the parents are not acting lightly.   They are not acting because they do not love their children.  To the contrary, they are leaving the children because they do love them and cannot think what else to do.

It’s not hard for me to see that the disruption/destruction of the parent/child relationship is a terrible thing for the child (and the parent, but let’s focus here on the child.)   Sometimes–as when a parent dies–it is simply unpreventable.   Though even then there can be a sense of abandonment.   But it seems especially tragic (and perhaps especially consequential) when it doesn’t have to be that way.

Now I think the harm occurs because of the nature and depth of the relationship disrupted.   That’s why it is different to abandon a 30-day-old and a ten-year old.   If we were to discover that one of the parents in the article wasn’t actually genetically related to the child in question, I don’t think we’d therefore say that there really wasn’t any harm done.   Indeed, I don’t think we know anything at all about the genetic relationship between the parents who testified in Nebraska and the children they left.   We know their social relationships.  In their eyes and in the eyes of the children, these people were parents.   And therein lies the pain and the tragedy. 

A very short last (maybe) look at Nebraska

One last follow-up on the Nebraska safe-haven law.    The legislature there is in special session now.   They are trying to figure out the right age limit–since clearly 18 years is not it.   I think they’ve settled for the moment on 30 days as opposed to three days.   I thought this story was worth a look.   The rationale for 30 rather than 3 days is that at three days you really don’t know how hard it is going to be.

That’s true, of course.   The reality of caring for an infant does take a while to set in.   But it strikes me that the passage of time really cuts in two opposite ways here.  The longer you serve as a parent, the more problematic abandoning the child seems.   It’s easier to contemplate at 3 days because there’s so much less time for the person to have been/become/be a parent.   The problem with dropping off a much older child is that the person really has been a parent and so there’s a different consequence to abandonment.

I’m not saying that the thirty day rule is wrong.   Perhaps it is the right balance.   It’s just interesting to note that you are balancing here, between compassion for the child and understanding for the parent.

More Marriage and Parenthood

Once again, Nebraska intervened and pulled me off-track, but this time I’ve come back much more promptly.    You can go back to here to pick up this thread.    But to briefly sum up–it is generally presumed that the husband of a woman who gives birth (assuming of course that she is married) is the father of the child.   That means he can generally assert a claim to be a legal parent based on the fact of their marriage.   (And as discussed before, this would be the case for a woman married to another woman in MA or CA as well.)

The last post asserts that this is not necessarily because we think/hope that the man in question is actually the source of the genetic material used to create the child.   Indeed, the presumption applies in instances when we know he is NOT the source of the DNA (ART using donor sperm).  Plus, if the critical factor were the DNA, these days it would be pretty straightforward to just test the DNA.   Then we’d know for sure.

So if it isn’t because of an assumption about DNA, why have a presumption that husband (or more generally spouse) is father/parent?   Last time I suggested it might be because of the relationship between the spouse and the woman who gives birth.  

Coda to a Coda

One last time (I think) the Nebraska story–perhaps now a saga–is in the news.   When I last commented on this, Nebraska was pretty clearly going to change the law allowing parents to drop off children of any age at a hospital emergency room.   Now it appears that this change will be made in a special session of the legislature, at a cost of $80,000.   It’s urgent because people really are travelling from out of state to drop off kids in Nebraska.   Or maybe just because too many people are using the law’s provisions.

I continue to ponder why it is okay to drop off a newborn but not okay to drop off a teenager.  In both cases, parenting can be challenging.   My latest thought is that the differential treatment reflects a sort of cost/benefit analysis.   In any of these cases, one of the things you have to weigh is the relative harm to the child or children involved.  There’s probably some harm on both sides in these cases–harm to the child in staying in a home where the parents feel so thoroughly overwhelmed vs. harm to the child from being abandoned.   With a newborn, the risk of harm in staying in the home with the overwhelmed parent may be greater–newborns are helpless and fragile and could easily be endangered in this setting.

At the same time, I’d venture to say that the harm from abandonment is less for a newborn.   I do not mean to deny that there is harm here (and I am quick to say this lest I be taken as too cavalier).   But being rejected/abandoned by a person who has been your parent for ten/twelve/fourteen years seems to me to have a qualitatively different impact from being rejected/abandoned by a person who has spent a good deal less time with you.

Perhaps it is this calculus that lies behind the greater willingness to tolerate abandonment of newborns than teenagers.

News In Brief: Nebraska Coda

I’ve written several times about recent developments in Nebraska.   Some time over the summer, Nebraska enacted a law that allowed parents to drop their children off at certain designated locations (hospital emergency rooms, fire stations, that sort of thing) without facing charges of abandonment or neglect.    A number of states have similar laws (I discuss this in more detail here).   They are usually designed to ensure that newborns are not left on doorsteps or in dumpsters.

The thing that distinguished Nebraska law was that it didn’t seem to have an age limit.  Suddenly parents were dropping off teenagers.  Indeed, people were travelling to Nebraska from out-of-state to leave their unruly 14-year-olds in emergency rooms.   This got quite a bit of attention and caused general consternation.

Well now, not surprisingly, it appears that Nebraska will be changing that law.   The new law will cap the age of children who can be left with impunity at three days.   This obviously restores it to its more usual purpose–to protect newborns.

All well and good and really not surprising.   It does take me back to the original question I wrote about.  Why is it okay to leave a three-day-old but not a thirteen-year-old?   The most obvious reasons would seem to be that the newborn really cannot in any way protect himself/herself and that at the same time we can anticipate that the mother of the newborn (and I mean mother, not parent, see the earlier posts) may be really overwhelmed.   There is something that is at once understandable and unsatisfying about this explanation, though.

More on the Nebraska Story–a broader view

Now there is a much more extensive piece in the New York Times about the new(ish) Nebraska law that allows parents to abandon teen-aged children.   I’ve written about this a couple of times, starting here.

The article takes a broader view of the problem, considering why it is parents (or others serving as parents) are seeking to abandon children they apparently love and have cared for, often for many years.   The point, of course, is the lack of support services that might make a difficult spell of parenting nevertheless tolerable.   Seems a good point to make and a sorry commentary on the world.

But the story really doesn’t touch another question, the one I’ve tried to ask.   Why is it more acceptable to abandon an infant?   What does that tell us about parenthood?