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. Continue reading
Posted in parentage
Tagged child, parent
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.
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. Continue reading
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. Continue reading
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. Continue reading
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.
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. Continue reading