The Legal Definition of Parenthood: Uncertainty at the Core of Family Identity
| Author | June Carbone |
| Position | Professor of Law and Associate Dean for Professional Development, Santa Clara University |
| Pages | 1295-1344 |
Professor of Law and Associate Dean for Professional Development, Santa Clara University. I would like to thank Alexander Weddle for his research assistance with this article.
Page 1295
In 2000, I published a book, From Partners to Parents: The Second Revolution in Family Law.1 In that book, I argued that the first revolution had dismantled the system of family obligation built on the ties between adults, and that a second revolution was rebuilding obligation on the basis of the remaining ties between adults and children. I then predicted that for the new regime to work it would be necessary to reexamine the adult ties necessary for children's well-being.2
In constructing this argument, I thought we at least knew who the parents were. That is, in reducing the emphasis on adult relationships such as marriage and dismantling the bright line distinctions between legitimate and illegitimate children, we would be left with parental ties defined by biology and adoption. Indeed, I was so confident that parenthood was a settled category that in the process of declaring that custody was ground zero in the gender wars3- and in the new regime based on parental obligation-I did not address the legal definition of parenthood.4
The definition of parentage-and with it the determination of which adults receive legal recognition in children's lives-has become the most contentious issue in family law. Not only are jurisdictions irreconcilably divided in their approach to parentage, decisions under settled law in a given county may not necessarily come out the same way.5 There are two principal reasons for this. First, ironically, is greater certainty in the determination of biological parentage. We have an elaborate legal structure based on marriage designed to manage biological uncertainty. Certain knowledge is cracking the foundations of these structures. It is one thing to limit testimony about a woman's infidelity; it is another to bar DNA testsPage 1296 that conclusively establish that the woman's husband is not the child's father.6
Second, greater marital instability has undermined the primary mechanism for recognizing functional parenthood. The stigma associated with illegitimacy once encouraged pregnant women to seek a man who "would give the child a name." All but one of the categories of presumed fatherhood in the original Uniform Parentage Act rested on the proximity between birth and marriage.7 Once a man married a woman and assumed the responsibilities of fatherhood, the combination of the evidentiary rules associated with the marital presumption and estoppel principles (not to mention the stigma of divorce) limited the opportunities for escape.8
Perhaps just as critical, the decision to marry was associated with the assumption of responsibilities to mother and child. Divorce, if it did occur, was not taken lightly, and post-divorce obligations, to the extent they were enforced at all, were also seen as obligations to the continuing mother-child unit. Within this system, spousal support was more critical than child support.9 Visitation, if it occurred, was secondary to the custodial determination and the expectation that aPage 1297 single primary caretaker, not two parents jointly, would be responsible for the child's well-being.10
Recent revolutions in family law have remade the basis for thinking about family obligation.11 If parental obligation to children is independent of the adult relationship, then definition of that obligation must start with the recognition of parenthood. Biological parenthood, however, may or may not correspond with the assumption of parental responsibilities, and many of the adults playing parental roles may not necessarily have a biological relationship to the child.12 In these circumstances, parental status becomes contested turf. Yet, uncertainty at the core of the definition of family produces not only legally contentious cases, but also confusion in the recreation of the moral obligations of adults. Who bears and who should bear responsibility for children? If we are not sure what the legal basis for parenthood is or should be, how can the law reinforce internalization of appropriate norms of parenthood?
This comment examines how this morass developed and what can be done about it. In doing so, it compares alternative bases for parenthood, starting with the marital presumption, biological paternity, and de facto or functional parents. It then focuses on the difference between ex ante bases such as adoption versus ex post determinations, such as those based on in loco parentis. Finally, this comment considers the extent to which the relationship between the adults remains important for the definition of parenthood.
This examination untangles the different meanings of parenthood. Many parentage cases address parentage as a category necessary for the determination of custody or support. This comment concludes that parentage should be, first and foremost, about identity. Parenthood is, now and historically, the legal category that answers the question: To which family does this child belong?13
Page 1298
Divorce remakes the terms on which families go forward.14 In doing so, the termination of custody and support ordinarily starts with the legal assignment of parental status. But what is the origin of parenthood itself? Consider these two divorce cases that use radically different doctrinal approaches to address the issue.
The Connecticut divorce case of Doe v. Doe15 involved a custody dispute over a fourteen year old girl, who was conceived by artificial insemination between the husband and a surrogate mother.16 The surrogate entered the hospital using Mrs. Doe's name. She entered Mr. and Mrs. Doe as the child's parents on the birth certificate, and the Does raised the child from birth. No adoption proceedings were initiated.17 The Does separated when the child was seven. They initially agreed to a temporary joint custody order, which provided that the child's primary place of residence would be with Mrs. Doe.18 Two and half years later, though, when the child was ten, the Does informed the court that the child "was not a child of the marriage."19 Each party sought custody, and the father asserted that he was the child's only legal parent.20
The Connecticut Supreme Court ruled that the trial court had jurisdiction to consider Mrs. Doe's custody claims as a non-parental third party under a best interest test. Although Connecticut statutory law recognized a presumption in favor of parental custody rebuttablePage 1299 by a showing of detriment to the child,21 the court nonetheless concluded that:
As these authorities make clear, the presumption does not mean that the nonparent must, in order to rebut it, prove that the parent is unfit. It means that the parent has an initial advantage, and that the nonparent must prove facts sufficient to put into issue the presumed fact that it is in the child's best interest to be in the parent's custody. Once those facts are established, however, the presumption disappears, and the sole touchstone of the child's best interests remains irrespective of the parental or third party status of the adults involved. In that instance, then, neither adult-the parent nor the third party-enjoys any advantage or suffers any disadvantage as a result of his or her parental or third party status.22
The court then concluded that the presumption had been rebutted by the fact that the plaintiff and defendant lived together and nurtured the child, they had shared joint custody through seven years of litigation, and the child's primary residence had been with the non-parent.23 The almost-fifteen year old's best interests were with continuation of the joint custody award, which established her primary residence with Mrs. Doe.
This case left the legal definition of parenthood undisturbed while it used a best interests analysis to reconcile the child's interests with the facts the Does had created. The Connecticut approach employs after-the-fact decision-making, which takes the child as it finds her and gives deference to her needs. It is consistent with the calls of many of the most prominent family law theorists for a child-centered jurisprudence,24 and with the ALI's recent efforts to recognize parenthood by estoppel.25 Is it a model for custody decision-making? Most probably not-if the Supreme Court's decision in Troxel v. Granville26 is to be taken at face value. The Connecticut Supreme Court, in response to Troxel's affirmation of parental rights under the United States Constitution, overruled the standard in Doe, holding:Page 1300 [T]he protected fundamental right of a parent to make child rearing decisions mandates that where a third party seeks visitation, that third party must allege and prove, by clear and convincing evidence, a relationship with the child that is similar in nature to a parent-child relationship, and that denial of the visitation would cause real and significant harm to the child.27
Would Doe come out differently under such a standard? It is impossible to know. The court might well...
To continue reading
Request your trial