A Child-Centered Approach to Parentage Law

This symposium issue of the William & Mary Bill of Rights Journal collects the papers from the second in a set of conferences devoted to the topic of state control over children's family relationships. In the first conference, held in spring 2002, the organizing question was the normative one of what rights children should have against the state when the state makes any decisions as to who will be members of a child's legal family and as to who will be legally guaranteed an opportunity for a social relationship with a child. Participants in that conference considered whether children should have some legal right that constrains the state when it establishes statutory rules for, or makes individualized decisions about, who a child's legal parents will be (i.e., paternity, maternity, and adoption rules and decisions), who will possess rights of custody and visitation following divorce, when legal parent-child relationships will be suspended or terminated because of abuse or neglect, and whether courts will require parents to allow a child to spend time with third parties such as grandparents. The excellent papers produced for that first conference were published in April 2003 in Volume 11, Issue 3 of this journal. The organizing question for this second conference was a more empirical and topically narrower one. This conference focused on the state's selection of a child's first legal parents at the time of birth, presupposed that the state's aim in establishing statutory rules for parentage and in making any individualized decisions about parentage should be exclusively to serve the best interests of each child, and asked participants to opine on what an ideal parentage law would look like, in light ofthat aim and in light of what empirical research to date tells us about how particular parental characteristics impact the welfare of children. Specifically, in my invitation to participants, I asked them to propose and explain/defend specific statutory language that they believe would serve children's welfare better than current prevailing rules for maternity and paternity. This could include particular facts that would create a presumption in favor of certain people becoming the legal parent of a newborn child (e.g., being the birth mother or being married to the birth mother), that would rebut such a presumption (e.g., being under a certain age or having committed acts of violence against the birth mother), or that would disqualify certain people up front (i.e., rather than making them parents and then going through termination proceedings) from the role of legal parent for a child (e.g., drug use, imprisonment, termination of parental status as to prior child). It could also include factors for making a best-interests determination in individual cases when it is appropriate to do so (e.g., availability of financial and other resources, mental health).1 In addition, I endeavored to constrain the participants to a purely child-centered analysis of parentage laws. I asked that "participants not Q consider at all any interests or supposed rights of adults" and "that we not debate whether it is appropriate to focus exclusively on the welfare of children."2 In a new book, The Relationship Rights of Children,1, 1 present an extensive theoretical argument for attributing to children a right that state decisions about their family relationships, including the crucial decision as to who their legal parents will be afterbirth, be based exclusively on what is in the children's best interests. Whether or not the participants agreed with that normative position, I wanted them to think about what parentage laws would look like if that were a controlling normative assumption. "The idea," I explained, "is to see what sorts of rules people would devise if it were accepted that the well being of newborn children is all that matters to the state's forming of initial parent-child relationships."4 The scholars who participated in the conference relished this challenge, finding it an intriguing intellectual exercise to imagine what a purely childcentered set of rules for attributing legal parenthood would look like. …