{"id":10963,"date":"2010-07-19T23:35:49","date_gmt":"2010-07-20T04:35:49","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=10963"},"modified":"2010-07-19T23:35:49","modified_gmt":"2010-07-20T04:35:49","slug":"past-formalities-and-present-realities-why-wendy-isnt-a-parent-at-all","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2010\/07\/past-formalities-and-present-realities-why-wendy-isnt-a-parent-at-all\/","title":{"rendered":"“Past Formalities” and “Present Realities”: Why Wendy Isn’t a Parent at All"},"content":{"rendered":"

\"\"<\/a>On June 24th<\/sup>, the Wisconsin Court of Appeals ruled against<\/a> 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.<\/p>\n

Wisconsin law does not permit same-sex couples adoptive rights; only one parent is the \u201clegal parent.\u201d 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.<\/p>\n

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.<\/p>\n

In Stanley v. Illinois<\/em><\/a>, a man lost his parental rights because he was not married to his children\u2019s 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\u2019s 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<\/em> Stanley was not married to his children\u2019s mother. The Court wrote,<\/p>\n

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.<\/p><\/blockquote>\n

Stanley<\/em>, 405 U.S. 645, 656-57 (1972). In many ways the Stanley<\/em> case is distinguishable and probably even unreliable\u2014the case is, after all, nearing it\u2019s 40th<\/sup> birthday and has some questionable history (though it remains good law).\u00a0 But the Court’s reasoning does suggest that \u201cpast formalities\u201d and \u201cpresumption\u201d 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\u2019s what Illinois was saying to Stanley by operating on the presumption that most\u2014if not all\u2014unwed fathers are unfit: that he\u2019s not a parent at all.<\/p>\n

Though \u201cpast formalities\u201d dictate a certain family structure, one ought to be careful in assuming the modern family structure is a long-standing phenomenon; it\u2019s not. It\u2019s 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\u2019t practical before the Industrial Revolution allowed it to be so.* \u00a0I\u2019m not suggesting that people didn\u2019t live this way, only that the word\u201cfamily\u201d 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\u2019ve latched on to that picture and understanding with formidable might.<\/p>\n

In any case, if we allow \u201cpast formalities\u201d to rule rather than paying attention to \u201cpresent realities,\u201d 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\u2019t a parent at all. \u00a0Wendy, then, isn\u2019t just unfit to be a parent; she\u2019s not a parent at all. And unfortunately, the people who suffer most from this unjust presumption will be her children.<\/p>\n

*For discussion of construction of the modern family structure in America, see Elaine Tyler May, <\/a>Homeward Bound: American Families in the Cold War Era (<\/a><\/span>Basic Books 2008)<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

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, […]<\/p>\n","protected":false},"author":89,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[80,45,19,24,13,15,3],"tags":[],"class_list":["post-10963","post","type-post","status-publish","format-standard","hentry","category-constitutional-interpretation","category-family-law","category-federal-law-legal-system","category-us-supreme-court","category-civil-law","category-courts","category-wisconsin","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/10963","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/89"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=10963"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/10963\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=10963"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=10963"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=10963"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}