Uniform Law Commission Authors Update Uniform Parentage Act

By: Joseph Railey

When a child is born to different-sex adults, we have legal ways to determine who the child’s parents are. Obviously, determining who is a child’s mother is easy, absent adoption or surrogacy she is the woman who gave birth to the child. In many cases determining a father is also easy as the law presumes that a married woman’s husband is the child’s father and if the woman is unmarried she can bring a paternity suit against a suspected “father.” In the wake of the Supreme Court’s landmark marriage equality ruling in Obergefell v. Hodges, these laws encountered a problem. Because of their gendered construction, how does the law determine who the legal parents of a child born to same-sex couples are? Following Obergefell, the Uniform Law Commission set out to answer these questions by revising the Uniform Parentage Act (UPA).

First passed in 1973, the Uniform Parentage Act seeks to create a uniform legal system for determining parent-child relationships. Prior to this year, the Act had been amended a few times, most recently in 2002. The 2017 UPA amendments create a paradigm that is constitutional in light of the Supreme Court’s decisions in Obergefell and in Pavan v. Smith earlier this year.

Among the most significant changes in the 2017 UPA is the inclusion of gender-neutral language such that the act applies equally to fathers and mothers. This is made abundantly clear in § 107 which states, “To the extent practicable, a provision of this [act] applicable to a father-child relationship applies to a mother-child relationship and a provision of this [act] applicable to a mother-child relationship applies to a father-child relationship.” Apart from this provision, many of the operative sections of the UPA are now also written gender neutral. Section 204 (which deals with the marital presumption of parentage) now refers to “an individual and the woman who gave birth to a child” rather than gendered terms like a “woman and her husband” in determining if a marital presumption applies. Similar gender-neutral language is applied throughout the revised UPA.

While these changes sound insignificant, their impact is anything but. In the wake of nationwide marriage equality, there have been a significant number of paternity and custody suits involving children of same-sex couples. Some of these cases, like McLaughlin v. Jones in Arizona, involved arguments based in large part on the gendered language in the statute. In McLaughlin, following the deterioration of her marriage with her partner, Kimberly, the birth mother of a male child, argued that her former partner had no parental rights over her child because the plain language of Arizona’s marital presumption statute referred to “paternity” and “males.” At the outset of their opinion, the Arizona Supreme Court stated that “a man is presumed to be a legal parent if his wife gives birth to a child during the marriage. We here consider whether this presumption applies to similarly situated women in same-sex marriages.” Based on Pavan and Obergefell, the Arizona court determined that the presumption applied equally to same-sex couples.

Celebrations outside the Supreme Court in Washington, D.C. after the decision of Obergefell v. Hodges. Courtesy of Church Militant.

The 2017 UPA has yet to be adopted by any state. However, the Act is significant as it furthers the best interest of children born to same-sex parents by seeking to guarantee their right to a relationship with both of their parents. While states like Arizona have reached this conclusion through the judiciary, that process is not short (McLaughlin, for example, started in 2013). The revised UPA provides a way for states to avoid lengthy and complex litigation while protecting a child’s interest in having a legal relationship with both parents.

For more information please see:

McLaughlin v. Jones, 401 P.3d 492 (Ariz. 2017).

Oberegefell v. Hodges, 135 S. Ct. 2584 (2015).

Pavan v. Smith, 137 S. Ct. 2075 (2017) (per curium).

Unif. Parentage Act (Unif. Law Comm’n 2017).

About the author:

Joe is a third-year law student at Syracuse University College of Law. He is an Executive Editor on the Syracuse Law Review and a member of the Moot Court Honor Society. Joe is interested in LGBTQ rights, civil rights litigation, and immigration law.

Freakonomics on Marriage Part II

Freakonomics on Marriage Part II

Last week, we linked to the first part of Freakonomics podcast on motivations for marriage. This week, to quote the late Paul Harvey, is “the rest of the story.”

Here is a description of “Why Marry? (Part 2)”:

In last week’s podcast, “Why Marry? (Part 1),” we talked with economists Justin Wolfers and Claudia Goldin about how marriage has changed over the last half century. How popular is marriage these days? Are married people happier? Isdivorce as prevalent as we hear?

Now it’s time for “Why Marry? (Part 2).” (You can download/subscribe at iTunes, get the RSS feed, listen via the media player above, or read the transcript.) With the U.S. marriage rate at an all-time low, around 50 percent, we try to find out the causes, and consequences, of the decline of the institution.

First, to get a picture of who marries today and who does not, we talk with Ivory Toldson, a professor of counseling psychology at Howard University and research analyst at the Congressional Black Caucus Foundation. He tells us:

TOLDSON: People who are less educated tend to be married less than people who are more educated. People who have higher incomes are more likely to be married than those who have lower incomes. And people in smaller cities are more likely to be married than people in larger cities. And that’s true across all races.

One area of particular interest to Toldson is the marriage rate among African-Americans. He talks about his research into the question “Are there enough successful black men for the black women who want them?” The answer is nuanced — but surprising nonetheless.

We also hear from Celinda Lake, a Democratic pollster and strategist and co-author of the bookWhat Women Really Want. Lake has spent much of her career looking into the intersection of marriage and politics. For instance:

LAKE: We asked married men and married women: Do you usually vote the same way as your spouse? And 73 percent of married men said confidently yes, and 49 percent of married women say yes. And I call that the “sure honey” factor.

Lake talks about one of the most striking consequences of the low marriage rate: the number of unmarried women who are having children. She tells us that in 1980, 18 percent of births were to unmarried women, while the number today is just over 40 percent. There are inevitable economic ramifications to such a dramatic shift:

LAKE: Two-thirds of unmarried women say that there was some basic cost that they had in their families that they couldn’t make ends meet in the last year. They couldn’t pay the bill compared to 40 percent of married mothers.

For  years, marriage has been promoted as a way to fight poverty, particularly for women with children. But would these mothers be better off if they were married? The answer isn’t clear.

What is clear is that the old model of marriage is nowhere near as attractive as it once was. So how about a new model? What would happen if marriage were treated more like an employment contract?

Freakonomics on Marriage Part I

Freakonomics on Marriage Part I

Recently, the Freakonomics podcast release the first part of a two part episode about the economics of marriage. One of the fascinating features of the show is how much of the common wisdom about marriage is false.  For instance, the divorce rate is actually at an all time low since it peaked in the 1960s/1970s.  

Here is a description of the show: 

This episode is about all the ways that marriage has changed over the last 50 years. We begin by challenging some of the myths of modern marriage. For instance:does marriage make you happier? Is divorce as common as we think? The discussion then moves on to how the institution of marriage is perceived these days, and to what degree it has outlived its original purpose.

We begin by hearing the voices of people all around the country, talking about why they got married or want to. As you might imagine, their reasoning runs from pure romance (love!) to hardcore pragmatic (a visa, a pregnancy, to conform).

Stephen Dubner spends a lot of time talking with Justin Wolfers, an economist at the University of Michigan and the Brookings Institution. Along with his partner/co-economistBetsey Stevenson, Wolfers has done significant research on marriage, divorce, and family. He explains one dramatic change to marriage over the past half-century — from a factory-style model of “production complementarities,” where the mister went off to work and the missus ran the household, to something very different:

WOLFERS: We’ve moved to what economists would call consumption complementarities. We have more time, more money, and so you want to spend it with someone that you’ll enjoy. So, similar interests and passions. We call this the model of hedonic marriage. But really it’s a lot more familiar than that. This is just economists giving a jargon name to love. So you want someone who’s actually remarkably similar to you or has similar passions that you do. So it fundamentally changes who marries who.

But this new model hasn’t just changed the way marriage looks; it has also changed the numbers. In 1960, two-thirds of all Americans aged 15 and older were married. By 1990, that number had fallen to 58.7 percent. Now? It’s dropped to around 50 percent. Harvard economistClaudia Goldin, who has done extensive research on women’s career and family attainments, tells us what accounts for this drop:

GOLDIN: In the U.S., one group of individuals who eventually marry, marry late. And one group is not marrying — the lower-educated, lower-income Americans are not marrying for lots of different reasons. So I wouldn’t say that marriage is still the institution that it once was.

 

Freakonomics on Marriage Part I

Freakonomics on Marriage Part I

Recently, the Freakonomics podcast release the first part of a two part episode about the economics of marriage. One of the fascinating features of the show is how much of the common wisdom about marriage is false.  For instance, the divorce rate is actually at an all time low since it peaked in the 1960s/1970s.  

Here is a description of the show: 

This episode is about all the ways that marriage has changed over the last 50 years. We begin by challenging some of the myths of modern marriage. For instance:does marriage make you happier? Is divorce as common as we think? The discussion then moves on to how the institution of marriage is perceived these days, and to what degree it has outlived its original purpose.

We begin by hearing the voices of people all around the country, talking about why they got married or want to. As you might imagine, their reasoning runs from pure romance (love!) to hardcore pragmatic (a visa, a pregnancy, to conform).

Stephen Dubner spends a lot of time talking with Justin Wolfers, an economist at the University of Michigan and the Brookings Institution. Along with his partner/co-economistBetsey Stevenson, Wolfers has done significant research on marriage, divorce, and family. He explains one dramatic change to marriage over the past half-century — from a factory-style model of “production complementarities,” where the mister went off to work and the missus ran the household, to something very different:

WOLFERS: We’ve moved to what economists would call consumption complementarities. We have more time, more money, and so you want to spend it with someone that you’ll enjoy. So, similar interests and passions. We call this the model of hedonic marriage. But really it’s a lot more familiar than that. This is just economists giving a jargon name to love. So you want someone who’s actually remarkably similar to you or has similar passions that you do. So it fundamentally changes who marries who.

But this new model hasn’t just changed the way marriage looks; it has also changed the numbers. In 1960, two-thirds of all Americans aged 15 and older were married. By 1990, that number had fallen to 58.7 percent. Now? It’s dropped to around 50 percent. Harvard economistClaudia Goldin, who has done extensive research on women’s career and family attainments, tells us what accounts for this drop:

GOLDIN: In the U.S., one group of individuals who eventually marry, marry late. And one group is not marrying — the lower-educated, lower-income Americans are not marrying for lots of different reasons. So I wouldn’t say that marriage is still the institution that it once was.

 

Sunday Funday: Colbert Shutdown Wedding

Sunday Funday: Colbert Shutdown Wedding 

The government shutdown is over; American did not default. Although experts estimate that the shutdown cost the American economy $24 billion dollars, the effects of the shutdown were not all bad. For instance, one couple who expected to be married at Jefferson Memorial, instead found themselves on the Colbert Report—with their wedding officiated on live-TV, by none other than one Mr. Stephen Colbert.

Part II of the video can be found here.

For more public policy related videos and podcast, be sure to check out the SLACE Archive.