Rethinking Children as Property: The Transitive Family

41 Pages Posted: 31 Mar 2010 Last revised: 15 Sep 2010

Date Written: March 25, 2010


Despite the collective view in law and social practice that it is intrinsically taboo to consider human beings as chattel, the law persists in treating children as property. Applying principles of property, this Article examines paternity disputes to explain and critique the laws view of children as property of their parents. As evidenced in these conflicts, I demonstrate that legal paternity exposes a rhetoric of ownership, possession, and exchange. The law presumes that a child born to a married woman is fathered by her husband, even when irrefutable proof exists to the contrary. Attempts by the non-marital biological father to assert parental rights regularly fail, as states allow only one father to 'claim' the child. This approach treats the nonmarital father as a trespasser and categorically favors the fundamental due process rights of the marital father.

Analyzing these family law cases along a property framework offers a rethinking of the law's imbalanced treatment of unmarried fathers. The law's current approach to paternity disputes reflects a classic model of property rights and ownership rooted in static, rigid, and exclusive claims. This framework ignores the interests of children in their biological fathers while overestimating the reproductive normativity of marriage.

This Article joins in recent discussions of 'stewardship' models of property that engage the complexities of nontitled claims to property. It draws upon constitutional law, property theory, and political philosophy to assert the possibility that the interests of children are better served by protecting and nurturing those relationships (i.e., those with the biological father) that are normally defeated by traditional appeals to substantive due process. By highlighting the claims of nonmarital, biological fathers, I suggest a turn to a fiduciary ethic that entertains the unique legal status of what I call the 'complex family'. This engagement of a textured - as opposed to flat and conclusory - model of the hybrid marital/nonmarital family recognizes the unwed father's property rights in the child as nontitled, while the marital unit acts as a fiduciary caregiver with legal rights to the child. By embracing the counterintuitive notion of children as property, I argue for a redirection of the existing framework of property theory to a productive model for the family that champions the best interests of the child in tandem with the constitutional interests of marital and nonmarital parents.

Keywords: paternity, Michael H, Troxel, unmarried, stewardship, fiduciary

Suggested Citation

Maillard, Kevin Noble, Rethinking Children as Property: The Transitive Family (March 25, 2010). Cardozo Law Review, Vol. 32, p. 101, 2010, Available at SSRN: or

Kevin Noble Maillard (Contact Author)

Syracuse University College of Law ( email )

Syracuse, NY 13244-1030
United States

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