The Legal Definition of Parenthood: Uncertainty at the Core of Family Identity
Posted: 23 Sep 2005
This paper argues that the determination of legal parenthood should fundamentally be about identity; that is, it should be seen as providing an answer to the question: to which family does this child belong?
The paper approaches the issue by, first, noting that the determination of legal parenthood has become one of the most contentious issues in family, and that this has ironically happened because of the combination of greater certainty in the determination of biological paternity, and greater instability in family relationships. The historic strategy of using the stigma against illegitimacy and the marital presumption to lock children into fixed family relationships is no longer tenable. The paper examines then the tension between ex ante and ex post definitions of parenthood. Ex ante doctrines, such as those requiring biological parenthood, marriage or adoption, recognize parenthood on the basis the conditions that exist at the time of the assumption of parental responsibilities. These doctrines provide certainty at the expense of the failure to recognize adults who may have played a primary parental role in the child's life. Ex post doctrines, such as de facto or psychological parent, affirm parental standing on the basis of functional relationships in existence at the time of the dispute. They have been criticized for opening the door to recognition of a potentially large and changing group of adults, without clear identification of those most likely to further the child's well-being.
Finally, the paper critiques the growing body of law applying the marital presumption, de facto parenthood, parenthood by estoppel, unmarried parents, and stepparents. The paper argues, first, that biology matters even if it is not the only thing that matters; identification of biological parents contributes to a firmer foundation for the recognition of others. Second, the paper maintains the relationships between the adults are important; recognition of functional parents, if parenthood entails a permanent commitment to the child, requires something more than a casual relationship with a legal parent. Third, the paper considers the possibility of "unbundling parenthood," that is, of considering support, custody and identity as separate issues that may produce different results. The paper concludes that recreation of legal parenthood as a constituent of the child's lasting identity requires adult acceptance of permanent responsibilities. This, in turn, means that the law should be designed to prompt a closer correlation between the ex ante institutions and the actual assumption of parental responsibilities.
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