Family law principles and applications

Family Law -- Adoption and Parental Rights Issues

Case # 1 -- the Rights of Putative Fathers

Children born to a married couple should not necessarily be conclusively presumed to be fathered by the mother's husband. However, the fundamental problem here is not that such a presumption is not better than no presumption at all; the problem is that the presumption (as phrased) is conclusive rather than presumptive or rebuttable. In most cases, the welfare of all stakeholders (i.e. society and any children born in such circumstances) will indeed be better protected by such a presumption than the absence of any presumption. Generally, the primary interest of society is that all children receive the financial and other types of support instead of being deprived of support (Friedman, 2005). In fact, that is the rationale for this presumption (Friedman, 2005).

Likewise, society also has an interest in protecting the sanctity of marriage I the sense that individuals who interfere with marital relationships or alienate the affections of one spouse from the other should not be able to benefit by virtue of those actions. However, as a practical matter, it is likely that by the time any woman gives birth to a child fathered by a man other than her husband, (especially in circumstances where that fact becomes known to her husband), the marital relationship is already in very serious trouble. Therefore, the presumption should exist but it should be capable of being rebutted, especially by a court determination of what is actually most likely to be in the best interest of the child. To illustrate, it would not be in the interest of society to assign parenthood to a man incarcerated for abusing his wife and her other children if she happens to bear a child with another man while her husband is incarcerated just because she has not yet managed to secure a divorce.

Case # 2 -- Sperm Donation Bans

The State Y law is likely to be adjudicated unconstitutional because it infringes on fundamental rights without sufficient justification to satisfy the appropriate level of judicial scrutiny (Friedman, 2005). It can be argued that the statute infringes on and burdens a fundamental right (i.e. The right to start a family); therefore, the statute would have to satisfy the highest level of strict scrutiny to overcome a 14th Amendment constitutional challenge (Friedman, 2005). Since the aims of the state would have to be compelling and the methods imposed narrowly tailored to serve that purpose in the least burdensome manner, the statute would be overturned.