A commenter on the Vermont/Virginia child custody determination thread asks: "So what is the relationship between claimed parent Janet and IMJ if not Janet's 'civil union' with Lisa?"The Vermont court was relying in large measure on what is sometimes called the "de facto parent" or "psychological parent" doctrine, which applies not just to same-sex partners, but also to the biological parent's opposite-sex boyfriend/girlfriend (or to the child's stepparent).
The doctrine is recognized not just in crunchy granola places like California and Vermont, but also Alaska, Maine, South Carolina, West Virginia, and Wisconsin (and, I'm sure, other states -- I just don't have a list handy). See, for instance Middleton v. Johnson, 2006 WL 1814177 (S.C. App. 2006), and the cases cited therein; here's the test that the South Carolina case adopts, following a Wisconsin precedent:
[T]he petitioner must show ... (1) that the biological or adoptive parent[s] consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation; [and] (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.Factor 4 suggests that the doctrine would apply more strongly for older children, and I don't know how often it has in fact been applied as to children who are a year and a half old at the time of the breakup; but it seems a comfortable fit in such cases, too.
Perhaps it's OK to market constitutional changes the way ad executives sell used cars, conjoining them with emotionally-held images and feelings the little people have in order to gain market share from the association. Perhaps serious-minded people never took the associations seriously to begin with.
The words that Justice McReynolds used in Meyer v. Nebraska come to mind:
The state, claiming to know better, proposes to do precisely the violence that Justice McReynolds decried. If we no longer believe that the biological relationship between parent and child trumps the state's own ideas about what is best for children, what are we doing with archaic cases like Meyer v. Nebraska -- and it's progeny -- on our books?
We should either get rid of these cases, or live by them.
I seem to recall somebody in my firm citing a case that Alaska no longer had a psychological parent doctrine. Won't swear to that though.
Ergo, in this case, the child is only a year and a half old, so the petitioners claim should fail.
ReaderY: I can't speak for "the liberal community," but it makes a good deal of sense both (1) to presume that biological parents ought to have broad rights to parent their children, but (2) when the biological parents let others form psychological parent-child bonds with the children, the biological parents may be barred from then unilaterally severing those bonds, especially when the severing might be against the child's best interests. Why is that somehow inherently contradictory or improper?
It's pretty obvious that a newborn recognises nobody but the biological mother. Likewise, a stranger cannot establish a parent-child relationship after dating the mother for a week or a month. I'm not sure whether Vermont has a minimum period of time to establish a non-biological parent-child relationship, but its neighboring state, New Hampshire, does have a two year requirement to assert child support claims, even in cases when one parent never allowed the other to establish a parental bond with the child.
This is a touchy ground, because the shorter period of time with a child that a person can use to justify a parental relationship and custody rights, that same period of time can also be used to argue for child support from boyfriends or girlfriends of increasingly transient nature.
Kids (especially young kids) don't understand the gay marriage debate. They just know that two moms or two dads love them and take care of them.
It takes extraordinary hatred and cruelty to deprive a child of nurture and support just because the child's parents don't follow you're particular religious beliefs (when there's no evidence that not following those religious beliefs hurts the child in any way).
This case also could show the difficulties that happen when courts don't accept each other's custody decisions. The Vermont courts can eventually impose jail as a sanction for noncompliance and put out an arrest warrant for Lisa. That warrant would be placed in a national database, and Lisa would be subject to arrest the next time she's pulled over for a traffic stop.
Chapter 46, Section 2451.
This section would give Vermont the right to interpret whether Virginia's anti-marriage law provided Lisa with a legal right to ignore a Vermont custody order. And if Lisa lost, she could spend five years in prison (although I'd doubt that these facts would produce a maximum sentence). If Lisa refused to come to Vermont for trial, the Vermont governor could simply demand extradition, which could not be denied.
This example shows why extending DOMA to anything but recognizing marriages as marriages can lead to truly messed up results.
How can the state be thought to know a child's best interests better than its parents? What makes the State more likely to have a child's real interests in mind? It would seem an odd faith in the State for a libertarian to have.
I remember a newspaper article shortly after Czechoslavakia's velvet revolution that said something like this:
"The state taught us X. But our parents taught us Y. And we believed our parents."
Traditional privacy -- up to perhaps Griswold -- is founded (in my view) on the argument that preserving the certain key traditional relationships, including the biological relationship between parents and children is implicit to the First Amendment -- opposition to a totalitarian State cannot survive if it cannot be transmitted. If the State can take children from their parents and give them to people it thinks better, it can crush the generational transmission of opposition.
To control who raises children and how children are raised, Plato pointed out, is to control thought in the state. For this very reason, McReynolds wrote in Meier that giving the state such a power (in the absence of parental waiver or unfitness) has been thought inconsistent with our society's foundations.
Remember the part in Animal Farm where the pigs took the puppies away and trained them to become attack dogs? No doubt the government sincerely believed that doing so was in the puppies' best interest. Certainly they would say it is. But the Constitution has traditionally been thought to provide hard-and-fast rules to prevent the state from entering into such business, to prevent it from having even the power to do it.
Who else could make the decision when the kid's two parents can't agree? If you want to keep the government from deciding who gets to parent your child, don't dissolve your marriage or civil union. (Grandparent visitation statutes are a far greater intrusion than this because they can sometimes be triggered even without a divorce or separation.)
One can certainly debate whether the parameters of our family law should be constitutionalized in this manner. If these old principles no longer apply, perhaps the courts would be better off in the long run admitting ignorance and leaving matters to legislalatures, than attempting to come up with arguments to persuade a highly divided public that new intellectual constructs are implicit in the concept of ordered liberty, inherent in the very foundation and structure of our society, etc., etc., etc., etc., etc., etc., etc. After all, the paper to print the Supreme Court Reports cost money.
It seems perfectly reasonable for the government to call two people "parents" when they intentionally bring a baby into their legal union and raise the child together. What's Orwellian about that? It would be more Orwellian for the government to use kidnapping or interference with custody statutes to prevent the child from having a relationship with one of his or her parents.
The question isn't one of reasonableness. Most things which fail strict or intermediate scrutiny would pass rational basis. The relationship between biological parent and child is accorded that status. In a civil union there is no dispute to come to the state's attention, but here there isn't a civil union any more in Vermont, and there never was one in Virginia.
When people in polygamous marriages come to ths states in this country that don't recognize them, they don't recognize a parental relationship with the other members of the polyny. Why isn't this considered kidnapping, forum-shopping, etc.? We really don't think of it this way. We tend to regard woman who come here from polygamous marriages and clarify their custody as liberating themselves from foreign laws that have shackled them with something unpleasant. What's the difference?
Remember, custody decisions are really about protecting the child's right to nurture and support. I could see the de facto parenting rules protecting the right of children from a foreign poly marriage to receive nurture and support from a mother who left the group. It would make for an interesting case.
Back to this former civil union. Yes, there is a dispute to bring to the state's attention. One of the child's parents wants to visit and support the child. The other wants to exclude her from those roles. That sounds like a dispute to me.