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Hofstra Law Review

Article Title

Parents by the Numbers

Abstract

This essay, an expanded version of the 2008 Siben Distinguished Professorship Lecture at Hofstra, explores the recent discourse - from case law, legal scholarship, and commentary - about whether children may have more than two legal parents. This discourse provides a lens for examining not only family law's current practices and trajectory but also family law's unfinished business, unspoken assumptions, and problematic inconsistencies.

Based on this examination, I largely ally myself with those who take a supportive approach to expanding parental numbers, but I include some significant points and elaborations missing from others' treatment of the topic. Specifically, I show how family law is currently well equipped to adopt and operationalize a multi-parent regime, as well as how the prospect of more than two legal parents illuminates a series of difficulties that family law must address even in the more ordinary two-parent case: difficulties in identifying relevant functional criteria for parentage, in imposing parental obligations on unwilling parents, in allocating shared decision making responsibility, and in determining the appropriate jurisdictional regime for parentage contests. The essay also grapples with theoretical issues raised by the recent discourse, including what multi-parentage might mean for the place of gender, sexuality, and biology in family law; how it might change our understanding of parental status itself; and what it reveals about the professed priority of children's interests in family law.

As a whole, the essay suggests that completing the unfinished business of recent reforms-and thereby developing as a larger frame a more normatively coherent family law - might well make the particular question of parents by the numbers a much less difficult and contentious topic.

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