I’ve been teaching the cases that I’ve recently posted here–the string of cases from CA, UT and MI in which a woman gives birth and both her husband and her ex-lover want to be legal parents to the child. In each of them the ex-lover is the genetic father of the child. In two of the cases the husband wins decisively. The one from CA is less clear–it is remanded for further proceedings. But it seems very unlikely to me that the genetic father can prevail under the described test.
As I reread the cases I was struck by the ways in which the different courts justified their conclusions. I thought it was worth summing them up here.
Before I do that, though, I want to note that none of these are really constitutional cases. Continue reading
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. Continue reading
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. Continue reading
I’ve only a moment but I wanted to post a quick update here. A couple of weeks ago I was following the hearing in Michigan where the state bar on marriage for same-sex couples was being reviewed. You’ll find a series of posts about the case, really for two reasons.
First, like many if not all of the marriage cases, the MI challenges was (in part) about marriage and children. The plaintiffs were two women raising children. Because they could not marry they could not adopt each other’s children–thus each child had only one legal parent. The women initially challenged Michigan’s refusal to let them adopt each other’s children and did not seek to marry. The judge suggested adding the question of whether the root problem was their inability to marry. Continue reading
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. Continue reading
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. Continue reading
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. Continue reading