Works in Progress Group # 4 Family Law: Children's Rights & Child Advocacy

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Session Type: Works-in-Progress

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Illegitimate Families

Professor Hazeldean's paper addresses the legal rights of children with unmarried same-sex parents. In many states, the only way a same-sex couple can both be legal parents of their child is to be married so that they can benefit from the marital presumption of parentage or access step-parent adoption. Unmarried same-sex couples, who by definition are not both the genetic parents of their children, often cannot obtain legal recognition as co-parents even if one of them is biologically related to the child. This causes a range of harms, of which coercing couples to marry is just the least. Children whose parents did not or could not marry are deprived of a secure relationship with their non-genetic parent. If the relationship between the parents breaks down, the non-biological parent and child may be permanently separated; the parent will have no standing to seek custody or even visitation with the child. I argue that such exclusionary parentage laws, which condition legally recognized parent-child relationships for same-sex parents upon marriage, violate the children’s fundamental rights. They subject such children to discrimination based on illegitimacy, deny them equal protection based upon their parents’ sex, and violate their constitutional right to association. Courts should therefore permit non-biological parents to raise constitutional claims on behalf of their children so that the child’s rights can be considered and protected.


Furthering Coercion and Control: California’s Mandatory Child Custody Mediation Policy

While child custody mediation offers many positive benefits to both litigants and the court system, mandated child custody mediation creates a detrimental disparate impact on domestic violence survivors, which due to their lived experience as survivors, forces them to mediate at a disadvantage. Many states with required child custody mediation statutes allow domestic violence survivors to opt out of mediation. However, several states require child custody mediation of all litigants regardless of a history of domestic violence. Notably, California—employing the largest court system in the country—provides no such opt-out exception for domestic violence survivors. Professor Sidwell's article calls on California to create an exception to mandatory child custody mediation for domestic violence survivors. Establishing the ability for a survivor to opt out of child custody mediation will respect the autonomy of domestic violence survivors, acknowledge the unfair and intimidating power dynamics of domestic violence relationships, recognize common conciliatory behaviors of domestic violence survivors, and—most importantly—protect the health and safety of survivors and their children.