Unconstitutional Parenthood

44 Pages Posted: 23 Mar 2021 Last revised: 10 Aug 2022

See all articles by Jeffrey A. Parness

Jeffrey A. Parness

Northern Illinois University - College of Law

Date Written: December 14, 2020

Abstract

A flurry of recent noteworthy articles have urged the U.S. Supreme Court to elaborate further on the federal constitutional requisites for childcare parenthood, that is, parental "care, custody and control" interests under the Troxel decision. These articles appear under such titles as "Constitution of Parenthood," "Constitutional Parenthood," "Constitutional Parentage," and "The Constitutionalization of Fatherhood." They follow recent initiatives by both the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute (ALI) suggesting new state childcare parenthood laws. Unfortunately, the constitutional limits on such constitutionalization and on state parenthood reforms go unrecognized.

These developments on childcare parenthood go by varying terms, including residency/hold out parentage; de facto parentage; voluntary acknowledgment parentage; assisted reproduction parentage; and spousal parentage. While these parentage forms vary significantly interstate, they do have a common thread. None depend upon actual biological ties or formal adoptions. Rather, they depend upon other conduct which may occur preconception, postconception but prebirth, or postbirth. Relevant conduct may involve the acts of those then nonparents; of those then expecting or existing legal parents; or of both. Such acts only sometimes encompass express, implied or apparent consent to new childcare parenthood, with consent possibly needed from two legal parents; from one, but not both, legal parents; and/or from one then a nonparent. Such consent must only sometimes be expressed in a record.

The most troublesome new developments on childcare parenthood do not require express, implied or apparent consent. Often, they follow the presumed consent, common authority, and/or quasi-contract doctrines recognized in laws outside of parenthood. These developments raise significant questions which have not yet been adequately addressed by commentators, model lawmakers, or state legislatures or courts. These questions encompass constitutional losses for nonparents seeking childcare parenthood where the nonparents then have federal constitutional parentage opportunity interests. These questions also encompass constitutional losses of childcare interests by expecting or existing legal parents.

The article posits that any childcare parenthood for those without biological or formal adoptive ties generally should only arise where there is actual or apparent consent on behalf of interested nonparents, expecting legal parents, and/or existing legal parents. It proceeds in five major parts. Each part reviews one form of childcare parenthood by exploring recent constitutional law scholarship, as well as NCCUSL, ALI, and state law initiatives. The childcare parenthood forms are (1) residency/hold out parentage; (2) de facto parentage; (3) voluntary acknowledgment parentage; (4) parentage arising from assisted reproduction births; and (5) spousal parentage. The article explores the constitutional issues arising from each form of childcare parenthood.

Keywords: parenthood, parentage, due process, equal protection, Lehr, Troxel, Michael H., Uniform Parentage Act, American Law Institute, de facto parent, assisted reproduction, voluntary acknowledgement parentage, spousal parentage

Suggested Citation

Parness, Jeffrey A., Unconstitutional Parenthood (December 14, 2020). 104 Marquette Law Review 183 (2020), Available at SSRN: https://ssrn.com/abstract=3748730

Jeffrey A. Parness (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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