Originally posted in Concurring Opinions where Professor Dowd was  to be a guest blogger for the month of May. Read the original post here

 

Amidst a recent move, I had one of those conversations that happen for those of us who teach family law.  My mover, Big Mike, about halfway through the day, discovered I taught family law.  I saw the spark in his eyes. “Well then I really need to talk to you!” he said.  Sometimes this means someone has had a terrible experience with a lawyer, or with a judge.  After all, family law is one of the most common intersections that people have with lawyers.  Just as often, they have a situation they want to discuss.

That was the case with Big Mike, who several trips later up and down the stairs, started to tell me his story, in the hopes that I might have some advice for him. What was fascinating about Big Mike’s story was what it revealed that is remarkably commonplace:  the legal uncertainties and lack of support of non-marital families.

Big Mike has a son who is 11 years old.  When his son was 11 months old, Big Mike came home to a cleaned out apartment, the baby’s mother gone along with his son and her 7 year old daughter.  They had long since ended their relationship, but Mike thought they would work out how to raise their son together.  Instead, she had decided to move to live with a friend in another state.  Big Mike found them and made it clear that he wanted to remain in the life of his son.  She responded by giving him the baby, and since then he has raised his son.  His son’s mother made no further contact nor did she visit.  She remained out of state with her daughter, and subsequently got into a relationship with a man who molested her daughter. She moved a number of times, and continued to make bad life choices.   Meanwhile, Mike maintained contact with his son’s grandmother, who his son visits periodically. Recently the birthmom made contact with him, and her text made him concerned that she might want to try to establish a relationship with her son, or even might seek custody or visitation.  The message indicated her regret for not being a good parent, but that she would like to make amends somehow.  It also hinted at the possibility that she might move back to Florida.

His son does not know about his biological mother.  The person who his son knows as his mother is Big Mike’s girlfriend and live-in partner of nearly 10 years.  She came into his life when his son was a baby, and is the only mother his son has ever known.  His son does not understand either that his grandmother that he sees periodically is related to his biological mother that he does not know about, or that the woman he knows as his mother is not his biological mother.  “He’s a good kid,” Mike says, “getting good grades, with good buddies, doing well.  I don’t want to see him messed up.”

What rights, he asked, does my son’s biological mother have?  Could she have some legal right to custody or visitation?  Can you give me any advice?

I told him I wanted to mull all this over, and I knew he would be coming the next morning to finish my move.  This situation raised a number of issues, and questions.

  1. First, there was the issue of Big Mike’s legal status.  He had never established paternity, although he was quite sure that his son was his biological child (I didn’t want to even suggest otherwise).  He was not named in a parenting plan or child support order.  Because he became his son’s primary caretaker so early, and the mom disappeared from his son’s life, there seemed no need to do anything “legal” to establish parenthood or a parenting plan.  So his case brings into play all of the issues surrounding non-marital parenthood, functional parenthood, and the gender differential between fathers and mothers.  Big Mike case is the unusual one of the single parent, indeed the only parent, being the male parent.  He was dumbfounded at the possibility that he might not be recognized as a legal parent, or that there was anything that it was necessary for him to do to preserve his rights.
  2. Second, since there had never been a termination of parental rights of the mother (who clearly could be deemed to have abandoned her son), would her reappearance, and desire to establish some relationship, be supported by a legal system that is increasingly dedicated to the notion of coequal parental rights? Indeed, Florida recently passed a bill creating an equal parenthood premise (some would say equivalent to a presumption) for its custody statute that governs both marital children at divorce and non-marital children.  Attached to alimony reform, the legislation was ultimately vetoed by Governor Scott because of the equal parenting provision, on the basis that it was not in the best interests of children to start from such a place, rather than individually assess best interests.  Nevertheless, the concept of equal rights of parents to care for their children has great appeal, and it is the public policy of the existing custody provision that both parents should sustain a relationship with their children.  The push for a stronger equal parenting provision has largely been associated with fathers, who claim the family courts continue to be biased against them, versus the argument that this unfairly privileges and empowers fathers who generally engage in less care of children.  Ironically, in Big Mike’s case, the policy favoring contact and parenting rights by both parents would be used by the mother.  She might additionally draw upon child welfare policies that try to sustain biological parental bonds rather than terminate parental rights.  Isn’t it possible to imagine a judge being persuaded that the child might benefit to have the opportunity to know and connect with his biological mother?
  3. Third, how do you evaluate this from the child’s perspective? Big Mike was concerned about disruption to his son’s life, wanting to protect his son from a parent who might or might not have his son’s best interests at heart. But of course there is the additional issue that his son does not know the truth about the existence of his biological mother, her abandonment of him, nor does he know the reality of his relationship to his functional mother. Does he have a right to know?  And does he have a right to decide about whether, and to what extent, he has a relationship with his biological mother?  What if his perspective diverges from that of his father, or his biological mother?  And how might he react to the information about the person he has always known as his mother?

My perspective on these issues is informed by the analogy to adoption, where the issue of relationship and knowledge about birth parents comes into play.  In the largely unregulated world of assisted reproductive technologies (ART), similar issues arise about knowledge of and potential relationships with sperm donors, egg donors, and surrogates and the children they bring into being.  Adoptive children have limited rights to know about their birthparents in most states.  There is no legal requirement, moreover, to tell them that they are adopted.  Open adoption is certainly more common, and the research on adopted children suggests that they want to know their history.  Similarly, children conceived through ART often want to know.  My advice to Big Mike, as a lawyer and as the mother of two adopted children who know their history and who as adults have connected to their birthparents, was to tell his son about his mothers, both his biological mother and the person who has mothered him.  Keeping secrets would ultimately, I suggested, come back to hurt his son, and his relationship with him.  Kids are amazingly different and resilient; his son might shrug and say “ok;” or he might be completely thrown.  So I also advised him to have on hand a therapist if needed to help his son and the family absorb the consequences of this disclosure, and of the possible presence of his mother in his life.

  1. Finally, what about his partner, the girlfriend who has been a functional parent to this child, the only mother he has known? What about her legal status, or more accurately, her lack of legal status, to this child?  And what about her status with respect to Big Mike?  They have not married, he told me, due to tax reasons—it would cost them tax-wise to marry.  Strange how that marital tax factor still can make so much of a difference when we supposedly value marriage so much.  But what if Big Mike dies?  Or what if they break up?  Not only are their issues about his son’s relationship to his functional mother, but also all the plethora of issues for cohabiting couples, especially long term cohabiting couples, about property, health care, etc.

All this brings me to two final observations.  In Big Mike’s story are the links to our legal support, or lack of support, of non-marital families.  This is a critical area for family law, to begin to support the functional life of all families.  Second, the well-being of children is often forgotten in the thick of sorting out the relationships and rights of adults.  Thus the tendency in Big Mike’s case is to focus on who has parental rights, rather than on what is best for his son.  So in addition to refocusing on non-marital families, we should strengthen children’s rights.

Nancy Dowd

Nancy Dowd’s research focuses on social justice issues connected to family law, juvenile law, constitutional law, race and gender analysis, and social change theories. She is currently engaged in research about a developmental model of equality, using the life course of African American boys from birth to age 18. Her recent books are Justice for Kids (NYU Press 2011), which identifies better solutions for kids than the current juvenile justice system, and A New Juvenile Justice System (NYU Press 2015), which articulates the vision of a new youth justice system focused on child well being and public safety. Her other recent book is The Man Question: Male Privilege and Subordination (2010), on masculinities theories as a means to expand gender analysis and also incorporate other hierarchies that affect gender, particularly race and class.

Dowd served as the Director of the Center on Children and Families until 2015, and in that role focused on issues of juvenile justice, social justice, non-traditional families, gay and lesbian rights, and collaboration with the Center for the Study of Race and Race Relations on issues of race and families. CCF also established the Intimate Partner Violence Assistance Clinic led by Professor Teresa Drake, a groundbreaking collaboration between law and medicine. She teaches family law and constitutional law.

Visit her faculty profile
Visit her SSRN author page
View her co-authored posts

Comments are closed.