Children are a large piece of the puzzle in the debate over marriage and its expansion in the United States. What is best for children?
The law requires for any decision about children to focus on their best interests. In my article titled “Tracing the Foundations of the Best Interest of the Child Standard in American Jurisprudence,” I explain the best interest of the child standard’s (BIC) underpinnings, noting that, ultimately, responsibility for children lies with parents first, and judges later if parents abdicate their God-given roles.
The ultimate goal of BIC is to preserve parent-child relations. Professor Lynn Wardle points out that millions of divorced couples are able to overcome their own conflicts and work together to love and raise their children after divorce. That is the current policy and goal of this area of law, and the foundation of BIC is critical to this discussion.
The question many are asking, however, seems to be: How do parents affect children? Should we rethink Mom and Dad?
In my article on that very subject, titled "Rethinking Mom and Dad," I discuss how the law and evidence find it imperative that a child have an opportunity to enjoy a relationship with a father and a mother whenever possible.
Children have interests in the continuing involvement of both parents in the child’s life, and this can be clearly seen in children resulting from assisted reproductive techniques (ART).
Such children are especially vulnerable, having no other party to rely upon to protect their interests but the parents who put their conception into motion. When that protection is not forthcoming from the child’s parents, the child can be irreparably harmed. Children have no rights as against their parents per se in any of the fifty united States, nor federally, but one case has ruled that they do have a liberty interest in knowing their own parents. L.F. v. Mason v. Breit is concerned with the best interests of a child caught in the middle of her unmarried parents’ assisted reproduction parentage dispute. There, the Supreme Court of Virginia ruled that a child has a liberty interest in knowing her father, as well as her mother, as a child should not be deprived of a parent, in this case her father, when her other parent (in this case her mother) argued that her father was simply a sperm donor rather than an intended parent. In that case the court saw that a child was being deprived forever of one of her intended parents, and ruled that doing so was certainly not in her best interests. The injustice in that scenario for any child allows for a solid rationale that a child has an interest in knowing her parents which should be protected by federal constitutional law, Virginia law, and good public policy on families, as the best interests of a child rest in the opportunity to have both a father and a mother involved in her life, and it is the duty of the State to protect those interests when parents do not. The Supreme Court of Virginia recognized that children need a mother and a father, and should be able to know and have a relationship with both parents, placing the duty to provide accordingly as incumbent on courts.
[W]e reject the notion that children have a purported right or interest in not having a father. To the contrary, Virginia case law makes clear that it is in a child’s best interests to have the support and involvement of both a mother and a father, even if they are unmarried. [citations omitted] Although our analysis in this case rests on Breit’s constitutionally protected rights as a parent, we recognize that children also have a liberty interest in establishing relationships with their parents. [citation omitted] Consequently, it is incumbent on courts to see that the best interests of a child prevail, particularly when one parent intends to deprive the child of a relationship with the other parent.
This case is most significant because it is the first time that any court has recognized a child’s interest in knowing and having a relationship with her parents. It is particularly important because this interest is recognized not in a rights framework, but in a best interest framework. Parents have a duty to protect the best interests of their children, and that includes not depriving them of a parent of the opposing gender. These types of decisions make a tremendous difference in the life of a child, here restoring a little girl to her father, as well as to her mother, constitutionally guaranteeing her both parents.
Another court made a different decision that left little room for the child’s best interests. A ruling from the New Jersey Supreme Court upheld an appellate court ruling that an intended mother’s name cannot appear on a birth certificate when the child is delivered by a surrogate mother, urging that the matter be addressed legislatively. Common law and legislative responses to issues of parentage that arise when children are born of assisted or artificial reproductive techniques need a framework that protects the best interests of the child. There are major concerns for children of ART, not only expressed by politically active populations, such as those speaking up in France, but by children of assisted reproduction themselves. Here’s one example: “I am a daughter of a sperm donor… I’m convinced I am not alone in my struggles being donor-conceived…but same-sex marriage will increase the demand for sperm and egg donors – inherently denying children access to one or both of their natural parents.” These cases illustrate that children ought not to be deprived of the liberty interest they have in knowing and having a relationship with a father and a mother.
Secondly, of fundamental importance for children is their sense of identity. The role of parents extends beyond the love they feel for their child. Chief Rabbi of France, Gilles Bernheim, has spoken of this in the current debate on parenting in France.
To reduce the parental bond, to its affective and educative aspects is to overlook the fact that the parent-child bond is a psychological vector of fundamental importance for the child’s sense of identity. All the affection in the world will not suffice to produce the basic psychological structures that address the child’s need to know where he comes from…. Father and mother represent a genealogy for the child. The child needs a clear and coherent genealogy in order to find his place as an individual.
To identify a child’s parentage is to situate him or her in a generational chain, which in turn guarantees each individual a place in the world in which he lives; this gives him a way to know where he came from. To abandon the father-mother distinction is to reduce parenting to the exercise of certain functions, essentially overlooking “the fact that, even in the case of adopted children,” as Bernheim states, “to be a parent is not only to educate the child but also to recreate lines of paternity and maternity.” Therefore, it is necessary to strongly affirm that to be a father or a mother in not merely an affective, cultural, or social function; the term “parent” in not neutral; it involves sexual difference.
These two things, a child’s protected liberty interest in knowing and having a relationship with both a father and a mother, and a child’s sense of identity, require that a mother and a father be provided for the best interests of every child.
If interested in more information on this topic, you can refer to an article written by Dr. Mark Regnerus of the University of Texas, called: “Is Same-sex Parenting Better for Kids?”.
These are important questions for our time, particularly for a culture struggling with family strength.
That is why the Ethics and Religious Liberty Commission is sponsoring an important conference on ministry in a post-marriage culture.
You can find out more about this conference at the ERLC National Conference: "The Gospel, Homosexuality, and the Future of Marriage." Designed to equip Christians to apply the gospel on these issues with convictional kindness in their communities, their families and their churches, this event will be held at the Opryland Hotel in Nashville, TN on October 27-29, 2014. Events like these go a long way in restoring families.
Lynne Marie Kohm is Professor and John Brown McCarty Professor of Family Law at Regent University School of Law in Virginia Beach, VA, USA (email@example.com). A scholar and legal educator since 1993, Kohm is teaching, researching and writing in the area of family law, child advocacy, and gender equality.