by Frank X. Nageotte, CLS-FL
Faced over the last 30 years with rapid advances in the science of human reproduction and fertility, DNA analysis, and genetics, the equally rapid evolution of the legal rights of gay and lesbian individuals, and significant changes in social views regarding traditional marriage, same-sex couples, and families, the law throughout the United States has been forced to wrestle with the question of just exactly “who is a parent?”
The traditional “nuclear family” consisting of a married man and woman with children to whom they are connected by either biology or adoption is no longer the only family structure with which the courts must deal. In some states, same-sex people can marry. Many other states have some form of Registered Domestic Partnership (“RDP”) for same-sex couples. Of course, many couples (straight and gay) have children without being married or RDPs. As a result, the definitions of “family” and “parent” have broadened significantly.
It is now legally possible in many states for a person who has no biological connection to a child, who has not adopted the child, and who is not married to (or an RDP with) the child’s biological parent, to nevertheless be found to be a “parent” of that child. These cases often arise in connection with the break-up of a same-sex relationship. However, disputes over parentage also arise between biological parents and stepparents, between surrogate mothers and the parties with whom they have contracted, and between sperm and/or egg donors and the recipients of their genetic material in cases of in vitro fertilization or artificial insemination.
In these cases, the courts are called upon to determine and evaluate the “intent” of the parties, the terms (if any) of their contract or agreement, the roles that they each have played in the child’s life, the existence and nature of a parental “bond” between each party and the child, and exactly what form of “family” will best meet the child’s interests and needs.
These cases are by their very nature extremely emotional and often heart-rending. Resolving these cases through litigation can be quite expensive, especially since appeals are often necessary given the unsettled nature of the law in this area. As is generally true with regard to all family law cases, our civil litigation system is very poorly equipped to handle these deeply personal issues. Collaborative Family Law, with its team approach, use of appropriate experts, confidentiality, and focus on problem solving, is a much better process for these cases.