Article by Mary Kay Kisthardt
Family law has come of age. Despite earlier relegation to a low status by members of the profession and by scholars, family law has emerged as a vibrant area of concern. The jurisprudence of family law now concerns itself with lively debate about the proper application of “rights” doctrines to address family disputes. Some scholars criticize the use of a “rights” analysis as being destructive to the family or as improperly de-emphasizing moral discourse. Others refer to the recent changes as a transformation that produces “ a body of family law that protects only the autonomous self and thereby fails to nurture the relationships between individuals that constitute families.” A significant influence in this shift in the law's emphasis is the United States Supreme Court's relatively new foray into the world of domestic relations. In Griswold v. Connecticut, twenty-five years ago, the Court began to fashion a doctrine of privacy that has profoundly affected the way the law views and values the relationships that are the subject of family law. The law of domestic relations, historically seen as the province of the states, has become “federalized” by the application of constitutional principles and the expansion of federal legislation. At the same time, family law decisions are shaping other areas of law by redefining the doctrines of procedural and substantive due process.
This Article will highlight some of these emerging new principles of family law jurisprudence by focusing on the treatment of the relationship between unmarried fathers and their children. The Supreme Court's recent decision in Michael H. v. Gerald D., in which it held that California's conclusive marital presumption defeated the rights of an unmarried father, will receive special attention. Historically, the Court has protected relationships that arise either within the realm of marriage or from biological kinship. Michael H. is significant because the Court found itself faced with a conflict between previously recognized rights based on marriage and those protected rights that arise from a biological connection. The Court's resolution of the conflict between “family rights” and “individual rights” is important and instructive. It provides the opportunity to examine the individual rights of those who are outside the marriage-based family (i.e., the unwed father) as well as the rights of one who is within that family (i.e., the child) but whose interest may nonetheless conflict with the interests of the “family” the law seeks to protect. Assuming, as the Michael H. decision suggests, that the Constitution does not offer expansive protection for individual rights of unwed fathers, this Article will examine alternative methods for protecting those interests.
Part I will give a brief historical account of the common law's treatment of unwed fathers and statutory attempts to further define the rights of the respective parties. The practical implications of the Uniform Parentage Act and the apparent conflict between the legislatures and the judiciary regarding the means and motivations for establishing paternity will be examined. Part II focuses on a series of United States Supreme Court opinions defining the contours of the relationship that is entitled to constitutional protection as well as the extent of the protection that must be afforded. Part III discusses the myriad opinions rendered in Michael H. Part IV offers analysis of the Michael H. decision. It focuses first on several criteria for evaluating the decision, and then discusses the difficulties that arise because of the law's continued adherence to the doctrine of exclusive parenthood. Finally, the decision is viewed in light of current jurisprudential thought, including a discussion of moral discourse in family law and an analysis of the implications of choosing a particular judging paradigm. Part V examines alternative means of protecting unwed fathers' rights, including those that are currently used by the courts and those that are proposed for consideration.
About the Author
Mary Kay Kisthardt. Professor of Law, University of Missouri-Kansas City. B.A. 1975, King's College; J.D. 1978, Dickinson School of Law; LL.M. 1985, Yale.
Citation
65 Tul. L. Rev. 585 (1991)