When a Parent Is Not Apparent

Abstract

Scholars have debated for a long time the rules by which the law should confer parental status for purposes of establishing parent-child relationships. Recently, the discussion has expanded to consider the appropriate definition of parenthood for purposes of triggering inter se obligations between a child’s parents. Such obligations would be imposed as part of a new co-parent, or “parent-partner,” status.

This Article contends that current parentage law works well for purposes of a new parent-partner status. For most children, parenthood is undisputed. For these families, the key question is not who the parents are, but what obligations should be triggered between them because they are parents of the same child. In fact, for most families, the existing law of parentage advances well the objectives of the parent-partner status.

Nonetheless, parentage law is sometimes underinclusive for purposes of a parent-partner status. To address the gaps, particularly for LGBTQ families, this Article recommends the adoption of the Uniform Parentage Act 2017 (“UPA 2017”) instead of some alternatives. This Article also recommends shortening the two-year cohabitation requirement in the UPA 2017’s “holding out” presumption so that some unmarried couples, who lack legal parenthood for both parties but want their parent-partnership to work, can benefit from the parent-partner status.

Finally, this Article considers and rejects the idea that current parentage law is overinclusive for purposes of a parent-partner status. Nonetheless, if such a problem exists, it suggests that the best solution would not be to redefine parenthood. Rather, reformers should adjust the parent-partner obligations themselves or allow parent-partners to opt out of the status by mutual agreement. These alternatives should address the critics’ concerns without detracting from the advantages of a broadly applicable parent-partner status.

Keywords: parent, parenthood, parentage, family, co-parent, parent-partner

JEL Classification: K36