Constitutional Constraints on Second Parent Laws

35 Pages Posted: 25 Apr 2014 Last revised: 8 Mar 2017

Jeffrey A. Parness

Northern Illinois University - College of Law

Date Written: March 25, 2014

Abstract

American state parentage laws have traditionally required biological or adoptive ties and no more than two parents for any one child at any one time. Biological ties were demonstrated by giving birth or sperm. Adoptive ties were established by completion of formal procedures by those desiring to parent, where prospective adopters were assessed for parental worthiness by the state. While the two parent policy largely continues, increasingly for children with only one parent there are recognized long after birth second parents with no biological or formal adoptive ties and with no rights under a valid child creation pact predating birth (i.e., assisted reproduction, with or without a surrogate). At times a woman or a man becomes a second parent under law, along with the birth mother, because natural ties are presumed, though sometimes impossible, as when a second woman holds out a child as her own. At times a man or a woman becomes a second parent via de facto parenthood where there is no state assessment; little respect for the actual wishes of the existing parent about second parenthood; and, at best, notice to the state only after the fact.

Where a child has one biological or adoptive parent, the recognition of a second parent with no biological, formal adoptive, or child creation pact ties, but with standing to seek childcare, necessarily impacts the childcare prerogatives of the existing parent. As these prerogatives are constitutionally protected, the second parent cannot be state-recognized over the biological/adoptive/assisted reproduction parent’s objection without a showing going beyond the child’s best interests. First parent constraints on second parent designations are guided by the “superior rights” doctrine. The federal constitutional demands regarding state use of this doctrine are unclear, however.

Where a child has one biological or adoptive or assisted reproduction parent, the recognition of a second parent with no biological, formal adoptive, or child creation pact ties, who can be subject to a child support order implicates the federal constitutional due process interests of the second parent. These interests include both procedural and substantive protections, including at least a rational public policy.

This paper first examines current American second parent laws on childcare and child support. As to each it finds significant intrastate variations. The paper concludes by exploring the federal constitutional constraints on second parent childcare and child support.

Keywords: parenthood, parental rights, paternity, child custody, child visitation, parenting time, de facto parent, presumed parent, equitable parent, due process, Troxel, Lehr, Michael H., child support, adoption, assisted reproduction, parentage acknowledgement, childcare, superior parental rights

Suggested Citation

Parness, Jeffrey A., Constitutional Constraints on Second Parent Laws (March 25, 2014). 40 Ohio Northern University Law Review 811 (2014). Available at SSRN: https://ssrn.com/abstract=2428272

Jeffrey A. Parness (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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