-- By JiadaiLin - 16 Apr 2010

Parental Custody Cases: A Balance of Rights

Introduction

Justice Scalia begins the opinion of Michael H. v. Gerald with “The facts of this case are, we must hope, extraordinary.” In Constitutional Law, we read this case as one of several that serves as an excellent springboard for discussions about due process and individual rights. In the final moments of class on that particular morning, the Professor mentioned that this case actually involves an incredibly unique set of facts that could be interesting to uncover in our own time.

Professor was right. The edited down opinion in the casebook is actually the skeleton of a complicated and lengthy tale of four people. Perhaps this particular fact pattern appears unique because it involves a supermodel mother and her daughter, her wealthy French husband, an affair and subsequent bicoastal stints in Los Angeles, New York and the Caribbean Islands. Certainly not ordinary facts, at first glance. At a second glance, however, the issues of the case, beneath the glamour and drama, are not uncommon at all.

Whose rights are at stake?

In cases of conflicting parental rights, such as this, there are many rights at stake. The biological father asserts a right to visitation, the mother may want a right to choose who is the “father-figure” in her child’s life, the married-in father may want the right to play that role. It seems to me, however, that the most important right of all may actually be the most vague: the right of the child who is being fought over. It is hard to articulate exactly what particular right the child has at stake in such a case. It may be the right to both a mother and a father, but that is practically acknowledged and it is the question of how to fulfill that right that is indeed at the center of the Court’s debate. When the intense debates among the adults in the case and the among the members of the Court have settled and are stripped away, however, only then does it become clear that consequently the childhood at the center of it all has been irrevocably affected in a bad way.

A brief overview: parental rights and the law

The typical family has changed, and the law has tried to adapt. With the increasing occurrences of “atypical” family plans – growing numbers of adoptive, stepparent, grandparent-led, heterosexual cohabiting, gay and lesbian headed families, families formed through new reproductive technologies, etc. – the law has somewhat changed since Michael H. first was decided in the Supreme Court two decades ago. There are two general rules of family law that may not work so smoothly with the scenario or decision the Supreme Court came to in Michael H.

Firstly, biological parents are given fundamental rights as an entitlement of procreation. This has come to be known as the parental rights doctrine. A line of Supreme Court cases have established parental liberty from a biological basis for the past century or so. Consistently, the Supreme Court has recognized the rights of parents to control the upbringing of their children—these are rights found in a line of Supreme Court decisions in the 1st, 5th, 9th, and 14th Amendments. Though this seems to run counter to the decision in Michael H, it does not.

The standard that has emerged concerning unwed biological fathers is that the father is entitled to parental rights if he has developed a substantial relationship to the child and a commitment to the relationship with the child, defined as a biological relationship and a commitment to the responsibilities of parenthood. (National Adoption Information Clearinghouse, 2001; Wehner, 1994). Such a standard consequently allows a whole array of arguments, debates and ongoing litigation about how the “substantial relationship” factor should be defined.

Secondly, parenthood is exclusive under the law. This exclusivity is established by the declaration that a child cannot have more than two parents. The other side of this same doctrine dictates that the rights and duties from legal parentage are either present entirely or not present at all.

What next?

I cannot help but think that unlike Justice Scalia hoped, the facts in Michael H. are not that extraordinary at all. Of course, the majority of children are not born to supermodels. But with the growing number of “unconventional” familial structures mentioned previously, it seems more and more necessary to put a focus on finding the most efficient system realistically possible to address parental rights.

I am fully aware that the issue is one that is extremely complicated and involves the lives and desires of many parties, all who have somewhat valid claims to the respective rights that they are arguing for. In the midst of it all, however, I underscore the fact that it is troubling that perhaps the right at the center of it all is the one that frequently is not voiced. This is not the time or place for me to propose any sort of solution, but merely to raise the question of how to quicken the time wasted in litigation and court proceedings so the actual right at stake is the focus of the debate.