Getting Back On The Horse……

So it has been many many weeks–indeed many months, I think–since I have written here.  Truth be told there’s no really good reason why.  (I know, maybe I don’t have to have a why, but still I wonder.)   I can offer different explanations for different bits of time.  But really, what’s the point.

The thing is, I am back.  Or at least, I’m going to try to be back.   I’m going to consider this a restart.   I mean, I won’t try for the moment to pick up the threads that were active.   And my apologies to all those who have comments lost in moderation.  They cannot (for now) be a high priority.

I’m going to keep this post short.   All I want to do is sketch out two topics I mean to approach in the comings weeks/months.    Of course, I’ll cover current events from time to time–they are far to interesting to resist.   But in terms of through threads, I have two in mind right now.

The first is prompted by the increasingly broad recognition of marriage between same sex couples.   There are now, I think, 36 states (plus DC) where same-sex couples’ marriages are recognized.   Many of these have been forced into recognition by court orders.  A smaller number (including my own state of Washington) reached that point via legislative or similar processes.    And the United States Supreme Court has agreed to take on the marriage questions and will likely hear four related cases on the topic in late April.  A decision would come by the end of June.  

Yet Another Look At The Marital Presumption–Kansas Weighs In

As you’ll know if you’ve been reading here regularly, I’ve run across a whole string of cases involving the marital presumption recently.  (This is the presumption that a child born to a married woman is the (legal) child of the woman’s husband.)   These cases all arise when a man who is not the woman’s husband can invoke DNA testing to demonstrate that he is the genetic father of the child.   And then the question is “what next?”

In most of these recent cases the husband and wife standing together can fend off the genetic father.   There’s a sort of “he should have known better” response.   (If the husband doesn’t want to claim legal parentage, he typically doesn’t have to.)   In one (from CA), the case is remanded for further proceedings, though my sense was the husband was likely to win there.

Here’s yet another of the cases, this one from Kansas, decided by the court of appeals there last week.   I think it follows the path laid out in CA though the ultimate outcome seems less clear to me.   

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.

More on UT and Unmarried Fathers–This Time With The Marital Presumption, Too

Here’s a fairly recent UT opinion that lies right at the intersection of two lines of conversation here.   You could think of this as one more UT unmarried father case.  (There have been a whole series of those discussed here over the years.  One was the topic of yesterday’s post.)   But it is also a case about the marital presumption–something we’ve all been discussing fairly recently.

It is somewhat surprising to me that I have come across several marital presumption cases in the last months.   I don’t know if this is chance (that I ran into them), chance (that the topic came up in different states) or some sort of meaningful pattern.  Whatever it is, I can assure you that I’ve put up posts on all I have come across–I am not selecting to make a particular point.

That said, there’s nothing terribly surprising about the UT decision.   UT has a strong preference for having children raised by married couples.  (Perhaps it is worth noting that until recently that necessarily meant different-sex couples, but UT is one of those states where the restriction on access to marriage has been successfully challenged in federal court. 

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.

Another Instance of the Marital Presumption–this from CA

A little while back I wrote about a Michigan case involving the marital presumption.  (Briefly stated, the marital presumption means that when a married woman gives birth to a child her spouse (and these days that can  mean her wife) is presumed to be the legal parent of the child.    That’s enough for now (you can read up on it in the earlier post).  I’ll just also note that 1) all states have some form of the marital presumption and 2) it’s a presumption about LEGAL parentage–who is the legal parent of the child.)

As I’ve said, different states have different versions of the presumption.   It can be easier or harder to rebut, depending on where you are, for example.   MI, we now know, has a version that allows a husband to invoke it even if his (ex-)wife doesn’t want him to.  This means he can claim legal parentage of a child that is genetically related to his wife and another man.    

The Marital Presumption and Finding a Second Parent For A Newborn

This is going to just be a short post to tie a couple of threads together.   Yesterday I blogged about the marital presumption, using a recent MI case as my example.   A few weeks ago I blogged about the problem of finding two legal parents for a newborn child.  (That’s a particular problem for me, as the post I linked to and an earlier one explain.).

Anyway, it occurred to me that it was worth noting that the marital presumption is the way we generally solve the problem of finding a second legal parent for a newborn.   One parent is the woman who gives birth and the second is her spouse–until recently her husband, but now in some states potentially her wife.   

One Recent Example of the Marital Presumption In Action

There has been a lot of discussion of the marital presumption here, even though I actually haven’t posted on it recently.  (It’s part of the discussion in the comments on the last post–one about surrogacy–for example.)   Since this very recent case from Michigan crossed my desk, I thought I’d use it as an opportunity to offer a few thoughts.   (You can find much more discussion under these posts if you like.)

A few explanatory words, first.   (Some of this is quite repetitious if you  have been reading the comments closely, for which I apologize.  But for others this might be useful.)

The marital presumption is an ancient one–quite literally hundreds of years old.  The idea (originally) was that if a married woman gave birth, the husband was presumed to be the father of the child.