The New York Law Journal reports on Matter of Shondel J. v. Mark D. here. The New York Court of Appeals has struck another blow against a man’s right not to be a father to against his will. Now not only is a father forbidden from “financially aborting” a child he took every measure to prevent — or even a child he was defrauded into having — he cannot even disown children he never, in fact, fathered. The cute name for the doctrine: paternity by estoppel. The less cute name: involuntary adoption.
A man’s right to choose continues to be eroded in every way. Does it bother you? Do you really think it is in the child’s “best interests” to be saddled to a father who is neither biologically nor emotionally related to it?
If you are new to the “men’s [reproductive] rights” movement, you might peruse our previous discussions about it here, here, here, and here.
UPDATE: The C0-Op has a good discussion going on about the case here.
Posted by Ethan Leib on July 11, 2006 at 12:50 PM
Comments
So if you choose to have a child by having sex with a woman and by accepting the child that woman bears as your own (paying child support, signing legal documents acknowleding paternity, visiting the child, identifying yourself as “daddy” to the child, and introducing the child to your family) but then four years later decide that actually, you don’t want to have a child, and demand a paternity test, the court that recognizes your prior behavior and says – hey, you decided to have a child, you can’t back out of it now – is “making you a parent against your will”???
I’m sorry, but men CANNOT have an unlimited amount of time to decide, oh, actually I DON’T want to parent this child who has already been born and to whom I have acted as a father. There’s no conceivable way that state of the law acts in the best interests of the child. Your “will” four years into the obligation is simply trumped by your “will” earlier on.
Posted by: Anon again | Jul 13, 2006 8:49:35 AM
The next step to be taken based on this warped opinion is to make ex-step-parents continue to be responsible for child support after a divorce, as the dissent points out.
That would discourage anyone from agreeing to be a step-parent, harming the best interests of children, the very justification given by the majority for its warped result.
I have heard that the Australian family courts have done just that: forced ex-step-parents to pay child support, even as the custodial parent simultaneously milks the natural father for child support, under the theory that a step-parent assumes obligations to a child (even one with two parents) by being a step-parent.
Men certainly not, and should not, have the right to compel an abortion.
But outside the abortion context, they do have a constitutional right not to be made a parent against their will, and the U.S. Supreme Court has never suggested that they are barred by their gender from the general right rooted in the Fourteenth Amendment to procreate or not procreate. (Cases like Skinner establish a right to be a parent without government interference, Griswold and Roe make clear that the same logic confers a right not to be a parent, and just as the First Amendment freedom of speech is read to confer a right not to speak, so, too, the Fourteenth Amendment right to procreate is logically read to encompass a right not to procreate).
The New York Court of Appeals has clearly violated that right.
Posted by: Hans Bader | Jul 12, 2006 11:10:37 AM
Equitable paternity should, but does not, work both ways. In Florida, the cases are maddening. “Estoppel” is appropriate for the cases you describe but I think the term “equitable paternity” should be reserved for cases in which a man who is not the biological father of a child takes financial and emotional responsibility for a child and then the biological mother of the child, by divorce or otherwise, seeks to prevent that man from continuing a relationship with the child. Where are the best interests of the child then? In other words, the man should be able to claim equitable paternity to assert a right with respect to a child. It’s interesting to see the cases in which constitutional rights trump the “best interest of the child,” e.g. the grandparent visitation cases, and in which cases the best interests of the child trump constitutional rights, e.g., practically every case dealing with fathers.
Posted by: Anon | Jul 11, 2006 6:58:05 PM
Whatever the validity of your overall position about the right to choose, this case is not much fuel for your fire. The facts are very particular. For the several years the man in question had provided financial support for a child based upon the assumption that he was her father. In fact, the man in question actually pursued his rights as a father in court (such as visitation). The child came to depend on the man as her father. Then a DNA test revealed that he was not the biological father. At that point the man sought to sever his relationship to a child that had depended on him as a father and looked to him as her father in the crucial early years of childhood. As a moral matter, I think the man’s behavior towards this child was monstrous and inhuman. Biology matters less than attachment in the destiny of human beings, that’s my ethical point of view. Making him take an ongoing financial responsibility was at least something, perhaps the most that LAW could do.
Posted by: rob howse | Jul 11, 2006 5:30:16 PM
I continue to strongly disagree with your “father’s right to choose” concept, viz., that men can disclaim responsibility for children they did father, but it seems utterly shocking that they can be held responsible for children they did not father and in fact have no actual connection to. I don’t think that the two can really be taken as one issue though; they are separate and distinct.
Posted by: Simon | Jul 11, 2006 5:23:55 PM
What do you mean “neither biologically nor emotionally related to”? According to the court case you cited, the Family Court believed the mother’s testimony that the father had visited with the child fairly extensively (for someone who lived in a foreign country), had paid child support, referred to himself as “daddy” around the child, and had introduced the child to his family! How is that not “emotionally related to”? If you’re the kid, who do you think is your daddy?
Posted by: Anon | Jul 11, 2006 4:21:54 PM
That counts as quibbling in my book. I’m trying to write a provocative blog post here — and our academic imagination is as good as doctrine, no? But I suppose you are right: I should have said that the possibility for any element of a man’s reproductive right to choose has been rejected yet again.
Right, again, on the Roberts point. I was pretty clear that I was trying to read tea leaves, as they say. And, as I mentioned then, I assume Roberts would uphold Danforth. He’s that precedent-respecting sort of guy.
Posted by: Ethan Leib | Jul 11, 2006 2:10:26 PM
“A man’s right to choose continues to be eroded in every way.”
Sorry to quibble, but in order to be eroded, doesn’t a right first need to exist — and not just in our academic imagination?
(Also, it seems to me that a “personal interest” of the sort referred to in the Bray brief that John Roberts signed is not necessarily the same as a right, in the (conventional) trumping sense of the term.)
Posted by: Trevor Morrison | Jul 11, 2006 1:52:07 PM