Waldlaw Blog

Tuesday, May 10, 2005

Parental autonomy versus the rights of non-bio parents -- a conflict?

Another interesting decision today. Several years ago, the California Supreme Court ruled that a man who knew he was not a child's biological father but nevertheless fully embraced the role of "father," providing care and support for the child, could be a legal, "natural" father based on his conduct. But that was in the context of a dependency proceeding, where the child's mother had been found unfit and the child was in danger of falling into the foster care system if the man didn't have parental rights. The decision has not been applied to the situation where there already is a fit parent in the home -- until today. Today, the Court of Appeal in San Jose ruled that the fitness of the mother does not figure into the equation, and that a man can be found to be a child's "natural" father who is not the biological father even if the fit mother objects. On the one hand, this case offers the best chance ever of victory for the legion of non-biological lesbian mothers in California who have been told they have no rights to even minimal visitation with the children whose births they helped plan for and whom they have raised, based on their lack of biological connection to the children and the objections of the children's fit, biological mothers to a continued relationship between non-bio mom and child. On the other hand, what does this case say about the right of fit parents to make decisions about who will care for their children, without running the risk of losing parental autonomy through the process? I am particularly concerned about what this decision could do to the rights of single mothers. After all, if a couple decides to have a person live in the home, and help with child-rearing, and fully bond with the child, they still don't run the risk of losing parental rights to this person -- after all, the child already has two parents. But if a single mom brings another person into the home to help raise her child, and allows full bonding to occur, it sounds like she will run the risk of a legal custody battle if at some later date she tries to remove this person from her child's life. I'm not sure whether the good outweighs the bad here or not. Definitely food for thought….


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