Beyond “Eros:” Relative Caregiving, “Agape” Parentage, and the Best Interests of Children.

INTRODUCTIONIn family law, as in many areas of law, the relationship between the rules devised to govern an individual's behavior and the actual lived experiences of these same individuals is rarely, if ever, simple or straightforward. This symposium provides yet another example of this complicated relationship. It aims to explore the lingering remnants of "illegitimacy"-revisiting why parentage and parental status should not depend on marital status-utilizing a fairly simple and straightforward deductive argument1 that would, if the relationship were as simple and straightforward as proposed, guarantee the truth of the conclusion that children are not penalized based upon their parents' marital status:1. It is unconstitutional to penalize a child born to unmarried parents on the basis of his/her parents' non-marital status.22. Failure to legally protect a child's significant attachment relationship to an unmarried parent is a penalty.33. Accordingly, a child born to unmarried parents is unconstitutionally penalized when his or her primary attachment relationship to an unmarried parent is not legally protected.As simple and straightforward as the conclusion should be, based on the truth of the premises that precede it, it is not. Indeed, as we learn from the work of Solangel Maldonado, children continue to suffer legal and social disadvantages, including discrimination under the law as well as social stigma, as a result of their parents' marital status.4This Article, which specifically addresses the continued role of illegitimacy-as in de-legitimized, fraudulent, counterfeit or makeshift-in the context of relative caregiving, presents a normative thought experiment reliant upon a slight variation of the above deductive argument:1. If illegitimacy distinctions are unconstitutional, eligibility for legal parental or co-parental status should not depend upon the presence or absence of a marital tie between, or a marital tie to, a biological parent.2. Relative caregivers cannot establish a marital tie to a biological parent.3. Therefore, relative caregivers' eligibility for parental or co-parental status should not necessarily depend upon the presence or absence of a marital tie to a biological parent.5Many questions quite reasonably flow from the syllogism above. Chief among them is whether the ascription of parental or co-parental status to relative caregivers is in competition with, or in conjunction with, that accorded to biological parents? Essentially, would the deductive argument asserted above support granting parental status to a relative caregiver in addition to two biological parents, married or not, thus creating a multiple parentage scenario? I have elsewhere broached the topic of multiple parentage,6 and leave to my colleagues who write significantly more on the multiple parentage question the opportunity to address this issue in richer detail and depth. Multiple parentage, while, in many instances, a natural conclusion that can be drawn from my argument, is neither the primary focus of this symposium nor this particular thought experiment. Rather, the question this thought experiment is intended to provoke is one concerning "relatedness" and, at the risk of appearing hopelessly sentimental, "love." Moreover, I hope to touch on what-in the context of parentage- "relatedness" and "love" have to do with the best interests of children. The aim of this Article, consistent with the theme of this symposium, is to call into question the paradigmatic ways in which "intimate dyadism," or eros, continues to define the boundaries of parentage and parental status- challenging the ways in which a particular form of relatedness through marriage continues to define the boundary between legitimate and illegitimate. In advancing an understanding of parental status and parentage that better comports with the experiences and needs of children, I also aim to explore how agape parentage can work in the best interests of children, particularly those being raised in relative-caregiver households. …