Guests: Paul Schenk, Clinical psychologist; Will Courtenay, PhD, LCSW, "The Men's Doc", McLean Hospital, Harvard Medical School, Author of Dying to Be Men.
Article from THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY from Northwestern University School of Law, via Ron Nelson
A child cannot have three legal parents under the Uniform Parentage Act, a California appeals court ruled May 6 in “In Re M.C.” — remanding the case to the Los Angeles trial court which must pick two of the three as legal parents before proceeding with the further question of where to place the child.
Although in the abstract, it pits gay rights against parents’ rights, this is the kind of case that ought to be decided based on its particular factual situation. This is not the case of an ideal, cute couple and their cool, adorable sperm-donor friend, which the TV version would be. The opinion says the mother had a “stormy relationship” with her domestic partner, with “several episodes of domestic violence.” The mother left her, met the father, got pregnant by him, and then lived with the father for a few weeks. She left him to reconcile with her partner, and they married before the child was born. Three or four weeks later, she left again. The father, meanwhile, had supported the mother when she lived together, and later sent money and a signed paternity declaration. When a new boyfriend attacked her wife with a knife, the baby ended up in state custody, the mother went to jail, and the father asked for custody.
The appeals court said that all three were “presumed parents” under the UPA, but only two could be the actual parents, and that the lower court should now apply the test from the case of “Kelsey S.” 4 Cal. Rptr. 2d 615 (1992) to see if we was a “constitutionally presumed father” -- one who “comes forward at the first opportunity to assert his parental rights after learning of the child’s existence, but has been prevented from becoming a statutorily presumed father under [UPA] Sec. 7611 by the unilateral conduct of the child’s mother or a third party’s interference.” Section 7611 requires the father to have “received the child into his home” -- something that many unwed fathers might not have occasion to do even if they are available and involved parents.
Good story about the latest developments in the age-old Miller-Jenkins case. Just a couple quibbles:
- NYT still puts “international parental kidnapping” in quotes? It's only been the subject of a treaty & a federal criminal law for about 30 years.
- It says "Lisa Miller, the girl’s biological mother and a newly fervent Baptist, was championed by conservatives" -- I don't know of conservatives in general flocking to her cause. She's been supported in her politically significant legal battles by Liberty Counsel and other fundamentalist groups that are against gay marriage etc.
New York lawyer Daniel Clement reports on the case of Strack v. Strack, in which a Lake George judge ruled that the new divorce law still grants a right to trial by jury on any divorce ground, including six-month "irretrievable breakdown", but also that "the fact finder may conclude that a marriage is broken down irretrievably even though one of the parties continues to believe that the breakdown is not irretrievable."
This was a 48-year marriage where the plaintiff seeking the divorce claimed that "Each year Plaintiff and Defendant live separately throughout most of the winter months. Though they share the residence for several months out of the year, Plaintiff and Defendant have not lived as husband and wife for a period of time greater than six months."
The opinion briefly reviews the legislative history of the new law and concludes that many of its supporters expected that "the allegation, in and of itself, would not be subjected to the rigors of any defense, any motions, the requirement of any testimony and certainly not the scrutiny of any fact finder." In support of this, though, the judge only cites statements about the need to eliminate "the requirement to prove fault", which is quite a different matter and was indeed abolished (in fact, it was abolished as an absolute requirement in the 1970s, when consent-based no-fault divorce was enacted). But regardless of what some supporters may have expected, the judge concludes,
"Domestic Relations Law § 170 (7) is not a panacea for those hoping to avoid a trial. Rather, it is simply a new cause of action subject to the same rules of practice governing the subdivisions which have preceded it. Specifically, Domestic Relations Law § 173 provides that "[i]n an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce" and, here, the Legislature failed to include anything in Domestic Relations Law § 170 (7) to suggest that the grounds contained therein are exempt from this right to trial. Had it intended to abolish the right to trial for the grounds contained within Domestic Relations Law § 170 (7), it would have explicitly done so."
Clement is outraged and says the intention of the law was NOT to have judges decide the issue of "irretrievable breakdown", rather, in an interesting window into what the advocates of the no-fault law were thinking, he argues, "it was assumed that the allegation that 'the marriage had irretrievably broken down with no prospect of reconciliation,' would create an irrebuttable presumption that would, in essence, establish the ground for divorce, completely eliminating the need for a grounds trial." ... "New York's no fault divorce law must be amended to provide that mere allegation, made under oath, that a marriage has irretrievably broken down establishes this ground for divorce, thereby eliminating the need to ever try this issue."
Around the country, there are states where it is pretty hard to get a court to seriously consider that a marriage might not be terminal -- even in some cases where the parties are sleeping together -- but I don't know of anywhere where you can't have a court hearing when the facts are in dispute. Clement's proposal would destroy whatever is left of the "irretrievable breakdown" standard and along with it, the six-month pre-divorce waiting period in the new no-fault law.
In a related development, Eugene Volokh has launched a menagerie of discussion on his "Volokh Conspiracy" of "Presumptions Are the [Name-the-Animal]s of the Law", inviting speculation on what kind of animal judges have called presumptions, beginning in 1906 and culminating with a court opinion handed down yesterday in an international paternity case.