I think this is the post that really sparked this blog. That is probably why it is the second post. Someone told me a story several years ago, and ever since then, I have wanted to write a book or an article with this title. But more importantly, I wanted to get the ideas it encompasses out into the world. It forces us to reexamine . . . well, everything.
Without telling the entire story, it is basically a story of an open adoption going well, really well. Everyone gets along, including the birth mother’s parents and the adoptive parents. The birth mother has a relationship with the child. There is no “but.” The second shoe does not drop. In family law, it is what we never see because everyone is getting along beautifully. I told this person how lucky she is, how the law does not recognize open adoption agreements as legally binding. But I also told her how glad I was to hear of a story that worked. We can sometimes forge they do.
Her response was the most profound statement on family law I think I have ever heard: “they [adoptive parents] believe that you can never have too many people love a child.”
Since then, I have thought many times how the world in which we live would look if instead of basing our notions of family on legal constructs built up from when children were property, we based them on people who love the people in the family, the people who want to care for and help nurture the growing family, even if the nuclear family no longer exists.
Instead, we have cases like Troxel v. Granville in which the Court reiterated the fundamental right of parents to raise their children while also leaving others out of their children’s lives. While Troxel may have been a bad test case because the grandparents were not being denied any visitation, it reminds us that the legal construct of the family is what dominates our thinking. In more recent news, there is the case between Janet Jenkins and Lisa Miller, in which the non-biological mother of a child born to a lesbian couple has fought for years to have the right to even see the child she raised. In a “traditional” family, there would be no question that the spouse would have a legal right to custody and visitation.
Certainly taking this to the extreme would become a nightmare similar to too many cooks in the kitchen, and we do have to have limits on who gets to decide how to raise children. But Justice Stevens made the point in his Troxel dissent, “Cases like this do not present a bipolar struggle between the parents and the State over who has final authority to determine what is in a child's best interests. There is at a minimum a third individual, whose interests are implicated in every case to which the statute applies-the child.” Thank you, Justice Stevens.
Children do not see the world through the lens of a legal construct. Children see the world only through a lens of who loves them and who they love. They do not care who stands in loco parentis or whether the law chooses not to recognize two dads or whether their grandparents cannot see them because of 9 people who live 2,000 miles away. At one time, children were considered property, and the law has grown to the point where most of the world recognizes that children have unique rights, expressed in the United Nations Convention on the Rights of the Child.
Are we ready to take the next step? Are we ready to give children the right to love and be loved by anyone? Or are legal constructs of family going to continue to define who can see and care about children?