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As was noted in yesterday’s post about the New York Court of Appeals’ decision in the Debra H. v. Janice R. case, the non-bio mom in a lesbian relationship won the right to a hearing on whether she should be awarded visitation or custody of the child she and her now-ex lover had raised for 2 1/2 years.  The divided court ruled in favor of the bio mom on narrow grounds that unfortunately reaffirmed terrible New York legal precedent.  That precedent, Alison D. v. Virginia M., treats the parents of children who have neither a biological nor formal legal relationship (have not legally adopted) to a child as legal strangers.  Julie Shapiro and Nancy Polikoff have done excellent analysis of the Debra H. ruling in their blogs and I won’t recapitulate their analysis here.

Instead, let me offer one additional insight about what the court did in this case: it clearly and emphatically advanced a property account of parenthood, and it did so in two ways.  First, when analyzing why it would not be a good idea to adopt a more nuanced approach to the question of who is family to whom (de facto parenthood or parenthood by estoppel), the court adopted a “the child is mine, not yours” kind of approach in which being a parent means having the exclusive right to control your child in the way that you can control other forms of property.  This right is vested either through biology or formal legal recognition of a property interest in the child (through legal adoption or marriage).  Citing well-settled Supreme Court law on this issue, the Court of Appeals insisted that “”the interest of parents in the care, custody, and control of their children [] is perhaps the oldest of the fundamental liberty interests recognized by” the United States Supreme Court (Troxel v Granville, 530 US 57, 65 [2000]) … To allow the courts to award visitation — a limited form of custody — to a third person would necessarily impair the parents’ right to custody and control.”

This is a familiar classical property-based approach to the rights of parents: if I made it or the law recognizes it as mine I have an exclusive right to control it.  It echos William Blackstone’s definition of English property rights: “sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”  To collapse family law into property law in this matter surely undermines the best interests of the child in many, many cases – Debra H. included, and it treats Debra H.’s claim of visitation rights to Janice R’s child [sic] as a kind of theft.

There is a second sense in which the Court of Appeals’ resolution of the Debra H. case draws from property law as well.  In a 1996 New York case, Shondel J., a woman sought child support payments from a man who had mistakenly thought he was the child’s father for 4 1/2 years.  The man had recognized the child as his own and had supported her from her birth. When DNA testing undertaken as part of the family court proceeding revealed that he was not the biological father he sought to escape ongoing support responsibilities for the child.  He was, he argued, a legal and biological stranger to this little girl.   The New York Court of Appeals didn’t let him off the hook so easily, finding that he was “estopped” from denying paternity when the child had relied on his representation and acts of paternity.

Shondel J. should have given the non-bio mom in the Debra H. solid ground for arguing that the bio mom was estopped from denying Debra’s status as a parent to the child they raised together, even though the child had neither a legal nor biological relationship to Debra H.  But the Court of Appeals didn’t see it that way, and ruled in Debra H. that claims to affirmative rights of custody and visitation are different from rights of support (the issue in Shondel J.).  Why?  Because of money.  Were the Court to let the putative father off the hook in Shondel J.-like situations, it might “endanger[] the child’s economic
security or even render[] the child a ward of the State.”  The Court in Debra H. made a formal distinction between a lawsuit to recognize a person’s identity as a parent and a lawsuit to gain financial support for a child from a putative parent who wants to walk away.  Political theorist Nancy Fraser has given us a nice way to describe this formal distinction: a right to recognition vs. a right to redistribution.  Even she recognizes that this distinction is, at bottom, a false one.  But it seems to be one the Court of Appeals thinks does important work.  Shondel J., in the Court’s mind, is a case about money, a case about property, while Debra H. is a case about identity, about who can be recognized to have the legal status of “parent.”  Apples and oranges.  Therefore Shondel J. gives the non-bio mom no aid in the Debra H. case.

Of course, the formal distinction between recognition and redistribution is a false one that collapses under the slightest of pressure.  One typically must be recognized as a certain kind of rights holder in order to make a claim to redistribution (a victim of tort, a legal dependent etc), and visa versa.

But let’s not miss what the Court is valuing in making this distinction between Shondel J.-like cases and Debra H.-like cases: the privatization of dependency and the avoidance of the state having to care for poor children.  By making putative parents in Shondel J.-like cases financially responsible for the children they took on as their responsibility, even in the absence of a biological or legal relationship to the child, the law assures that the financial needs of children remain a private, not a public, responsibility.

There are multiple grounds upon which one might be disappointed by what the New York court did in Debra H. Include the underlying reliance on a property law-based approach to family law among them.

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  1. I suspect this is why jurisdictions, such as Ontario, establish Family Responsibility Offices to enforce court orders regarding child support payments, but do nothing to enforce court orders regarding custody arrangements.

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