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.

Update on UT/CO Unmarried Father Case

My thanks to TAO, who pointed me towards this story in a comment to the last post.   I had written about the case two years ago, but would surely have missed this chance to follow up on it.

I’ll leave folks to go back and read either the earlier post (I just linked to it) or the article for the facts.    They are rather long and complicated.   But the short of it is that Robert Manzanares is the genetic father of a six-year old girl who has been living with a Utah couple her entire life.   (The people raising her are actually the brother and sister-in-law of her genetic mother.)

Regular readers here will know that Utah is a state that is very hard on unmarried genetic fathers.    As a matter of policy the state would much rather have children raised by married couples.  Hence, it is easy for a woman to give birth and place a child for adoption in UT and it is hard for a man who is the genetic father of the child to stand claim a right to raise the child himself.   

Michigan Trial Ends–Decision to Follow

You all know I’ve been following that trial in Michigan where a lesbian family brought a challenge to MI’s restriction on who can adopt.   The trial itself ended yesterday and now the matter rests with the judge.  An opinion is expected in a couple of weeks.

To recap briefly, MI only permits married couples to adopt jointly–which gives the adopted child two legal parents.   The plaintiffs in Michigan are two women (April DeBoer and Jayne Rowse) who are a longtime lesbian couple.   One woman has adopted two special needs children from foster care, the other has adopted one special needs child from foster care.    Each of the three children has one legal mother (and one non-legal mother–by which I mean a social/psychological mother who has no legal status.)

DeBoer and Rowse originally challenged the adoption restriction but the judge suggested broadening the challenge to include MI’s restriction on who can marry. 

A Different Presumption–this one from Mississippi

I’ve got a couple of recent posts up about the marital presumption.  I thought I’d add another case–this one from Mississippi.  It’s not a marital presumption case, as you can see.   (If anyone can help me understand why it isn’t, I’d be grateful. Is it possible that MS no longer uses the presumption?   Do tell if you know.)  But the facts are similar to the recent CA case I wrote about and there is a presumption at work.

So here’s the story.   Anne and Jake had an intimate relationship before the married.   But during that time, apparently unbeknownst to Jake, Anne had a one-night stand with Tommie.  Anne got pregnant.  Tommie suspected the child might be his, but he knew about Jake, too.  Jake didn’t know about Tommie and so assumed that he was the father of the child.

Anne and Jake got married in June 2004 when Anne was 17 weeks pregnant.

Michigan Trial Watch

As you will know from earlier posts, there is a very interesting trial proceeding in Michigan.  It’s a challenge to laws that prohibit a same-sex couple from marrying and therefore from jointly adopting.   The plaintiffs are a lesbian couple each of whom has adopted children out of foster care.  Though they have been together for quite some time, the two women cannot adopt each other’s children.   This puts the children at risk in various ways–the non-adoptive mother is not a legal parent of the child.

What’s really interesting is that the trial judge is hearing live testimony from a series of expert witnesses of various sorts.  You can follow along via twitter coverage or blog coverage or the local (Detroit) paper.   I’m sure there will be other coverage, too, but how much can one take in.

So what to think?  

The Thing About Studies

I’m stepping out of discussions about the marital presumption for a moment to raise what is really a much broader issue.      Generally the choices people make when advocating for any particular rule in family law (and in law generally, I would guess) are driven by some goal that they are trying to achieve.

For instance, in family law many people advocate for particular legal arrangments because they care about the well-being of children.   Indeed, it is probably fair to say that the well-being of children is the single most broadly agreed upon goal of family law.   There are other goals you an advance of course—interests of and/or fairness to adults, say.    But the consideration of children—for a whole range of reasons–is often centrally placed in the  debate.

Now the fact that many people agree on the centrality of the well-being of children does not mean that people agree on what family law should be.  

A Round Up of Birth Certificate News

I have some hesitation about returning to the general topic of birth certificates as I know many people get quite wrought about it. But there’s a bunch of different stories out there on the topic so I’ll have a go on it. However, I want to try to set the stage first.

Birth certificates—at least in the US–are rather peculiar documents. Some of what is on them at least looks like a historical record. So for example, birth certificates routinely list the time of birth. That would seem to be in the nature of a historical record–a formal noting of a particular thing happening at a specific time and place. (Place is also in that category.)

But then there are some other things on birth certificates that, though they look like the stuff of historical records, aren’t. One–and the one that has been discussed the most extensively here–is “parents”–or as it sometimes appears “mother” and “father.”   US birth certificates do not necessarily list the name of the woman who gave birth–which it seems to me would be the most obvious historical fact they might reflect.  

At Last–A De Facto FATHER

I’m diverging from the ongoing conversation that arose from the Bode Miller custody case (which we can always come back to) to talk about a brand-new (as of this AM) Washington case.   And really, I’m happy to have it to talk about because sometimes I get the feeling that some of you think I am generally anti-male/anti-father.  Here’s a case that (might) help convince you I’m not.  

It’s called In Re BMH and is from the Washington Supreme Court.   I’m only going to do a superficial job at the moment (both Hanukkah and Thanksgiving approach), but it’s a start. 

Laurie and Michael Holt began a romantic relationship in 1993.   In 1995 they had a son, CH.   They never married and they separated in 1998.   (Just so you’re not in suspense, I think it is quite clear that Michael Hold is a legal parent of CH and that’s not in question here.)

FAFSA Makes A Family

“FAFSA”   is one of those words (if it is a word) that strikes fear into the hearts of those who know what it is.   FAFSA stands for Free Application for Federal Student Aid and, as the name suggests, it is the form families have to fill out to get federal aid for their kids.  And the reason it strikes fear is that it is a long and complicated process (though they do say that they keep trying to improve it.)

Now you may be wondering why this has anything to do with my blog.  Bear with me.

One of the critical pieces of information FAFSA requires, of course, is the financial position of the student’s parents.   It certainly stands to reason that this is the sort of thing you’d want to know in determining whether someone was eligible for federal student aid, right?  But you all know that figuring out who counts as a “parent” means isn’t always easy. 

One Quick Addition on the Marriage/Children Link

Here’s one timely illustration of the marriage/children link being invoked in support of access to marriage.   (This ties back to a post from yesterday.)  The American Academy of Pediatrics (apparently the major national organization of pediatricians) has endorsed access to marriage for same-sex couples.   The rational for this is all about what is good for children, which is, of course, the primary concern of pediatricians.

Children thrive in families that are stable and that provide permanent security, and the way we do that is through marriage,” said Benjamin Siegel, MD, FAAP, chair of the AAP Committee on Psychosocial Aspects of Child and Family Health, and a co-author of the policy statement. “The AAP believes there should be equal opportunity for every couple to access the economic stability and federal
supports provided to married couples to raise children.”

(This is from the press release on the AAP website.)

It’s clearly crucial to this argument that significant numbers of lesbian and gay couples are already raising children.   You can see how critical that premise is by looking at the discussion in Europe.