Legal Parenthood: Old Doctrines, New Families
Jeffrey A. Parness
Northern Illinois University - College of Law
100 Illinois Bar Journal 330, June 2012
The recent case of In re Marriage of Mancine, 2012 IL App (1st) 111138, reminds us of how legal parenthood can vary by context; how little common law exists on parenthood; how legal parenthood may not coincide with actual parenting; and, how a child’s best interests may not be considered in determining legal parenthood.
In Mancine, an Illinois marriage dissolution proceeding, both the husband and wife sought custody of a minor whom the wife adopted in Wisconsin before the marriage. A preadoption wedding was contemplated but never performed. Earlier the wife had adopted another child. In Wisconsin an unmarried couple cannot simultaneously adopt a child, but a single woman can adopt. An adoption agent advised the husband that he could adopt the minor child as a stepparent after the marriage, but the husband never did. Before the wedding, the minor’s birth certificate reflected the husband’s last name and the husband moved in with the mother and was co-parenting. The husband and wife were also named as the “parents” on the minor child’s baptism record. After the wedding, for some time the husband primarily cared for all the children. His wife held the couple and the children out as a family unit.
When the wife sought a divorce about fifteen months into the marriage, not long after a family move to Illinois, the wife challenged her husband’s standing to seek custody of the second adopted child. Both lower courts found no standing in the husband, rejecting his arguments on “equitable parent,” “equitable estoppel,” and “equitable adoption.”
The Mancine case should prompt reconsideration of legal parenthood in various settings as its implications are disturbing. What would have happened to the children if a day after the divorce, the ex-wife died or placed the children for adoption? Should the ex-husband be treated as a parent during the marriage in either a child support or neglect setting? It makes sense to treat men claiming or charged with parenthood differently at times, depending upon context. Thus, many men should pay child support for children they can no longer childrear due to their earlier parental failures. Yet many differences are unjustified. Unfortunately, given current statutes and a judicial disinclinations to make common law, a child’s best interests, as well as societal and nonparent interests, are frequently ill-served. This occurs because the “superior rights” of parents are favored regardless of what parents do, short of abuse. Is it time to examine all parentage statutes comprehensively, or at least to consider broader common law powers that can better serve children’s and societal interests without unduly interfering with the superior rights of custodial parents?
The new variations in American families demand clearer rules after Mancine. Legal parenthood might be chiefly, or only occasionally, guided by maternal choices, genetic ties, actual childrearing, parentage intentions, or a child’s best interests. Whatever the policy choices, in whatever the context, as Professor Katharine K. Baker recently recognized, “predictability” is very important.
Number of Pages in PDF File: 2
Keywords: de facto parent, parentage, parenthood, equitable parent, parent by estoppel, children's best interest, adoption, equitable adoption, equitable estoppel, parents and children, paternity, superior parental rights, Troxel, child visitation, child custodyAccepted Paper Series
Date posted: June 7, 2012
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