Overcoming the Marital Presumption

Family Court Review, Volume 50, Issue 2 (2012)

MSU Legal Studies Research Paper 10-17

9 Pages Posted: 6 Jul 2012

See all articles by Melanie B. Jacobs

Melanie B. Jacobs

Michigan State University College of Law

Date Written: 2012


Parentage law is heavily influenced by the number “two.” The traditional paradigm of one mother and one father, especially a married mother and father, has been a bedrock of Western society. In recent decades, however, the traditional two parent paradigm has started to erode and courts have responded. For example, some courts have held that a child can have two legal parents of the same sex. In other cases, a child has been deemed to have just one legal parent and yet in others, even three legal parents. These cases highlight shifts within the law of parentage that have occurred as the nuclear family has decreased in prominence and as the use of assisted reproductive technologies has changed the ways in which families are created. I have previously advocated for the expansion of legal parentage to persons not traditionally considered a legal parent, such as the lesbian partner of a legal mother. I have also suggested that, in limited circumstances, courts consider conferring legal parentage in more than two adults who are raising a child including recognizing that a child might have two fathers. In my home state of Michigan, the traditional two parent paradigm is firmly entrenched as illustrated, in part, by the state’s strict marital presumption, which does not permit a putative father the ability to challenge the husband’s paternity. About one-fifth of U.S. jurisdictions have a similarly strict marital presumption. In this short essay, I criticize the lingering marital presumption and use the critique to illustrate broader inconsistencies within the law of parentage. I also make some modest suggestions for parentage law reform.

Keywords: marital, presumption, gender, mother, father, married, two parent, paternity, parent, marital presumption, child, custody

Suggested Citation

Jacobs, Melanie B., Overcoming the Marital Presumption (2012). Family Court Review, Volume 50, Issue 2 (2012), MSU Legal Studies Research Paper 10-17, Available at SSRN: https://ssrn.com/abstract=2101340

Melanie B. Jacobs (Contact Author)

Michigan State University College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Abstract Views
PlumX Metrics