“Past Formalities” and “Present Realities”: Why Wendy Isn’t a Parent at All

Posted on Categories Constitutional Interpretation, Family Law, Federal Law & Legal System, U.S. Supreme Court, Wisconsin Civil Litigation, Wisconsin Court System, Wisconsin Law & Legal System

On June 24th, the Wisconsin Court of Appeals ruled against a woman seeking legal recognition of her parental rights for the two children she adopted with her ex-partner. The two women adopted their children in 2002 and 2004 from Guatemala. The woman appealing, known in the record as Wendy, stayed at home with the children, while her partner, recorded as Liz, worked as an attorney. Liz was the legal adoptive parent so that the children could be on her healthcare plan. When the couple split up, the two women agreed to an informal custodial arrangement, but Wendy has no legal rights over or to her children. When Liz stopped allowing Wendy to see the children, Wendy lacked any legal recourse.

Wisconsin law does not permit same-sex couples adoptive rights; only one parent is the “legal parent.” The court justified its decision on the basis that Wisconsin law defines a “parent” as only the biological or adoptive parent. Wendy is neither of these and thus, at least under the law, not a parent at all.

This leads to questions that are more cultural than legal (though still legal, yes). How do we define parent? How do we define family? The Supreme Court has spoken to these questions, though not in the terms at issue here.

In Stanley v. Illinois, a man lost his parental rights because he was not married to his children’s mother. Stanley and his girlfriend lived together on and off for 18 years and had three children together. When she died, Illinois law commanded the children become wards of the state because their father was not married to their mother. His actual fitness to be a parent was irrelevant. (Familiar yet?) The United States Supreme Court held that the Illinois law violated Stanley’s right to due process of law by taking his children without a hearing to determine his fitness. The law allowed Illinois to circumvent the neglect hearing process because Stanley was not married to his children’s mother. The Court wrote,

Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand.

Stanley, 405 U.S. 645, 656-57 (1972). In many ways the Stanley case is distinguishable and probably even unreliable—the case is, after all, nearing it’s 40th birthday and has some questionable history (though it remains good law).  But the Court’s reasoning does suggest that “past formalities” and “presumption” cannot be the basis for denying an unwed father his parental rights (which the Court has protected stringently). Is that really so different from saying that because of the presumption that a same-sex couple is illegitimate, unfit, or other similar reasons, the non-biological or non-adoptive parent is not a parent at all? Really, that’s what Illinois was saying to Stanley by operating on the presumption that most—if not all—unwed fathers are unfit: that he’s not a parent at all.

Though “past formalities” dictate a certain family structure, one ought to be careful in assuming the modern family structure is a long-standing phenomenon; it’s not. It’s relatively new in the span of American history and newer still in the span of human history. The mother, father, 2.5 children structure simply wasn’t practical before the Industrial Revolution allowed it to be so.*  I’m not suggesting that people didn’t live this way, only that the word“family” and those responsible for childcare encompassed a much wider breadth of people than those who fit this pattern. Nuclear, insular families are a rather modern phenomenon, though we’ve latched on to that picture and understanding with formidable might.

In any case, if we allow “past formalities” to rule rather than paying attention to “present realities,” our law fails to keep up with our society. Like Illinois presumed Stanley was an unfit father because he was unmarried, there exists a presumption that same-sex couples are inherently unfit to raise children and that the non-biological/ adoptive parent isn’t a parent at all.  Wendy, then, isn’t just unfit to be a parent; she’s not a parent at all. And unfortunately, the people who suffer most from this unjust presumption will be her children.

*For discussion of construction of the modern family structure in America, see Elaine Tyler May, Homeward Bound: American Families in the Cold War Era (Basic Books 2008).

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