48 Pages Posted: 4 Jul 2014 Last revised: 3 Sep 2014
Date Written: July 3, 2014
Parents affect children. Rethinking whether a child needs a mom and a dad is no straightforward task. Exploring conflicts and issues that arise when determining the best interests of a child in a number of different parental contexts, this article considers rethinking the best interests of a child in having a parent of each gender, namely a father and a mother. Focusing on child rearing and adoption from many angles such as fatherlessness, same gender parenting, motherlessness, parental incarceration, and children resulting from assisted reproductive technologies, this article discusses whether dual gendered parenting holds more or less weight in a best interest of the child analysis. If it does not matter whether a child has an opportunity to have a relationship with both a father and a mother, why is that the case? And if dual gendered parenting better fosters a child’s best interest, why is that so? Can any state law require dual gendered parenting within parental rights and equal protection guidelines? And for that matter, should gender of the parent ever be a relevant consideration in the adoption of a child? This piece will consider state statutory codes defining what is in the best interests of a child, pediatric medicine, social science, constitutional requirements, and federal law and policy in determining if it is truly in a child’s best interests to have both a mom and a dad. It will conclude with a discussion of dual gendered parenting imperatives, while offering innovative resolutions to the best interests of children missing one or the other.
Part I discusses various studies and scenarios of parenting, perspectives on each, and their results on children. It confronts the problem of fatherlessness, the need for mothering, and the significance of a marriage context for children. Part II examines statutory parameters on the best interests of children regarding parental preference in state codes, analyzing these factors and considering whether and how they are directed by pediatric medicine, or evidence from social science. It then compares these facts with federal law on equal protection, and federal family policy. Part III brings all these angles together in a discussion of a child’s interests in his or her own parents. It sets forth how the law and the evidence find it imperative that a child have an opportunity to enjoy a relationship with a father and a mother whenever possible, while offering innovative resolutions to provide a father or a mother for a child that has been deprived of one or the other.
Keywords: Children, Mom, mother, Dad, father, parent, best interest of the child, sports
JEL Classification: K10, K11, K12, K39, K00
Suggested Citation: Suggested Citation
Kohm, Lynne Marie, Rethinking Mom and Dad (July 3, 2014). 42 Capital U. L. Rev. 441 (2014). Available at SSRN: https://ssrn.com/abstract=2462112