Father's Rights (Children)

[howland_reed]

Here's my 2 cents as a lawyer:

To those arguing that the man simply should have been more responsible (ie. used a condom, or better yet, practiced abstinence), you're missing the heart of the issue. Your argument is the same argument that pro-lifers make against abortions. But we live in a society in which abortions are and have been legal for the past thirty sum years. Your argument doesn't address the fact that a man has no choice in the birth of an unwanted child, and he becomes financially burdened thereafter. In our Roe v. Wade world, a woman has that choice; a man does not.

To clarify for the non-lawyers out there, what Roe v. Wade actually held was that a State statute that prohibits a woman from obtaining an abortion impinges on her right to privacy, in that the choice to have a child is a life-altering decision that affects the mother physically, mentally, and financially. The State cannot compel motherhood by forcing a woman to have an unwanted child.

The right to privacy is key here, and yes, men have that same fundamental right too. Having to pay child support for the next 18-25 years of an unwanted child's life definitely impinges on that right.

But here's the key distinction: In Roe v. Wade, the child is unborn and has no rights until the fetus becomes viable (the trimester test). Pro-lifers obviously take issue with this as they consider the child to have rights upon conception, therefore it'd be murder to have it aborted. But as of this date, it's still the law of the land, and the child doesn't have any rights until the third trimester.

In a child support case, on the other hand, the child is now born, and has rights, including the right to child support. Actually, I'm not sure if there's been a case yet on whether a child has a fundamental right to child support, but considering there is strong public policy to do so, if this case did go up to the SC, then they'll likely rule in such a way. Ask yourself, if the father doesn't lend support, who'll foot the bill to help the single mother? The State, and the rest of the taxpayers.

So with all that said, men are screwed in this case, but there's no easy solution. The best thing I can possibly think of is if the Court implements a system in which a man may file an emergency petition to the Court to order a woman to abort a child that was conceived out of wedlock -- the woman, however, can refuse the Order if she agrees to waive any child support from the biological father. But time would be of the essence on such a petition since once the fetus is viable, the baby can't be aborted and the father is on the hook for support. And courts are notoriously slow-moving. To speed the process then, a court should uphold the validity of any "prenatal" contract (similar to a pre-marital agreement) in which the woman would waive any child support, and the man would waive any potential right to custody or even visitation. However, any such waiver can't be made once the fetus is viable and/or the child is born. Once that happens, the father is on the hook.

[TheKassi]

I'll just bow out at this stage, because I don't want to derail this into an abortion issue. I'm sure if we wait long enough, we'll see another abortion thread.

The question isn't about abortion. I am challenging the logic behind the argument that a woman is the only person with a say on what happens within her uterus juxtaposed with the argument that a woman's lover and society MUST be bound to the consequences of the decisions a woman makes with regards to her uterus.

Or does society have the moral authority to say allowing women to have such authority over that particular aspect of their own bodies is not in the best interest of society, and make it a couple's decision, or a municipal/state decision?

I can understand the 'my body my choice' mantra, in fact I am a fan of it, but the entire argument behind the moral authority of government to override people's choices is that individual choices effect all of society, not just the individual. Given that this thread is about how a woman's lover and society in general are stuck with the consequences of a woman's choice, that claim seems to take the wind out of the 'my body my choice' argument.

[Balefont]

Here's my 2 cents as a lawyer:

To those arguing that the man simply should have been more responsible (ie. used a condom, or better yet, practiced abstinence), you're missing the heart of the issue. Your argument is the same argument that pro-lifers make against abortions. But we live in a society in which abortions are and have been legal for the past thirty sum years. Your argument doesn't address the fact that a man has no choice in the birth of an unwanted child, and he becomes financially burdened thereafter. In our Roe v. Wade world, a woman has that choice; a man does not.

To clarify for the non-lawyers out there, what Roe v. Wade actually held was that a State statute that prohibits a woman from obtaining an abortion impinges on her right to privacy, in that the choice to have a child is a life-altering decision that affects the mother physically, mentally, and financially. The State cannot compel motherhood by forcing a woman to have an unwanted child.

The right to privacy is key here, and yes, men have that same fundamental right too. Having to pay child support for the next 18-25 years of an unwanted child's life definitely impinges on that right.

But here's the key distinction: In Roe v. Wade, the child is unborn and has no rights until the fetus becomes viable (the trimester test). Pro-lifers obviously take issue with this as they consider the child to have rights upon conception, therefore it'd be murder to have it aborted. But as of this date, it's still the law of the land, and the child doesn't have any rights until the third trimester.

In a child support case, on the other hand, the child is now born, and has rights, including the right to child support. Actually, I'm not sure if there's been a case yet on whether a child has a fundamental right to child support, but considering there is strong public policy to do so, if this case did go up to the SC, then they'll likely rule in such a way. Ask yourself, if the father doesn't lend support, who'll foot the bill to help the single mother? The State, and the rest of the taxpayers.

So with all that said, men are screwed in this case, but there's no easy solution. The best thing I can possibly think of is if the Court implements a system in which a man may file an emergency petition to the Court to order a woman to abort a child that was conceived out of wedlock -- the woman, however, can refuse the Order if she agrees to waive any child support from the biological father. But time would be of the essence on such a petition since once the fetus is viable, the baby can't be aborted and the father is on the hook for support. And courts are notoriously slow-moving. To speed the process then, a court should uphold the validity of any "prenatal" contract (similar to a pre-marital agreement) in which the woman would waive any child support, and the man would waive any potential right to custody or even visitation. However, any such waiver can't be made once the fetus is viable and/or the child is born. Once that happens, the father is on the hook.

Excellent post, howland. The last paragraph is essentially the concept I was throwing out there.

The "prenatal" contract may actually force people to be more responsible about with whom they have sex and the birth control precautions they take because mom could knowingly put herself in a position in which she is left high and dry if she's with a partner she knows is completely against having children with her at that time. Knowing that, she may be less inclined to have sex with a guy that opted out. And the opt out option would shut the guys up who whine about having to pay child support just because the girl they knocked up won't get an abortion.

[Edda van Heefmstra Ruston]

The only problem I see with that is those people who are likely to sit down, draw up, and sign a contract before having sex are probably those who are already talking about it anyway. Those who aren't already going to talk about it aren't likely to stop to do the contract, and then there's no difference (no contracts post-coitus, etc).

[Seventh Pup]

Here's my 2 cents as a lawyer:

To those arguing that the man simply should have been more responsible (ie. used a condom, or better yet, practiced abstinence), you're missing the heart of the issue. Your argument is the same argument that pro-lifers make against abortions.

Here is the crux of the problem. No matter where you fall on this debate you are taking up a pro life argument. Your argument seems to be that a woman is only half (perhaps a third) or the parties involved in a pregnancy. You are also thinking of pregnancy in terms of the baby, and seem to think that a womans right to abort comes from her right to not want to be a mother.

This is not the case. A fetus is part of the woman's body (until it becomes viable outside the womans body), it is because it is part of her body, that she gets to make the decision to abort. Her right to privacy comes, not from the right to not be responsible for a baby, but over the right to have control over her body.

To put another way. Would you favor a husband being able to get a court injunction against his wife to force her to have a mastectomy if she's been diagnosised with breast cancer. Would you be in favor of this husband be able to legally separate himself from the cost of her cancer treatment if she refused?

The answer is probably no. Because we recognize that person should have control of their body, even when those chooses have huge finically and emotional consequences for others.

A man has to make his choose while he is still in control of only his body.

[Balefont]

The only problem I see with that is those people who are likely to sit down, draw up, and sign a contract before having sex are probably those who are already talking about it anyway. Those who aren't already going to talk about it aren't likely to stop to do the contract, and then there's no difference (no contracts post-coitus, etc).

I agree, Eefa. But it would sure shut up the whiny guys who go on about not having the same opportunity as a woman to terminate the responsibility of supporting a child. :)

[Brienne the Beauty]

So with all that said, men are screwed in this case, but there's no easy solution. The best thing I can possibly think of is if the Court implements a system in which a man may file an emergency petition to the Court to order a woman to abort a child that was conceived out of wedlock -- the woman, however, can refuse the Order if she agrees to waive any child support from the biological father. But time would be of the essence on such a petition since once the fetus is viable, the baby can't be aborted and the father is on the hook for support.

I don't understand people sometimes. This is such a cold, simplistic, clinical, money-loving way of looking at a deeply emotional and complicated problem. I cannot comprehend how people cannot see that this put in practice would be unbelievably horrific.

Let's look at it from a people-point of view, rather than an abstract point of view. In Howland Reed's brave new world, this law has been passed.

Mark and Emma are married, with no kids. Mark has a good job, but Emma has been unlucky in her career and is a low earner.

Emma has always dreamed of children, but they have had no luck conceiving. They use IVF, and it's a gruelling process, but finally the happy positive pregnancy test arrives. However, Mark finds he does not share Emma's joy. He never really wanted children - he only went along with it to make Emma happy, and the carefree girl he married is gone, replaced by a baby-obsessed bore. He has met this great new woman at work, and they have been falling in love while Emma was distracted by the IVF.

Mark demands a divorce. He also demands an abortion, because the money he'd pay in child support would interfere with his plans to form a new life with the wonderful woman he has fallen in love with. Emma is nothing to him any more, and he was never really invested in the baby.

Emma now has a choice: raise a child in poverty, or abort a dearly loved unborn child.

Do you still think your idea is a good one? If Emma was your sister or friend, could you look her in the eye and tell her that Mark is doing the right thing, and is perfectly entitled to abdicate responsibility?

[Solmyr]

Emma now has a choice: raise a child in poverty, or abort a dearly loved unborn child.

I will struggle, trying to grasp this concept to my dying day ...

[Brienne the Beauty]

I will struggle, trying to grasp this concept to my dying day ...

Women tend to "bond" with a child in the womb. In other words, they name them, they plan out the nursery and they start to think of them as one of the family. I know a pregnant lady myself, and I honestly think she would be a danger to herself if her husband acted like "Mark" and demanded an abortion. It would be horrific beyond words. It would be the same as if someone took her newborn baby and dashed it's head in on the ground at birth.

You can't take human emotions out of the law. Otherwise, rape would be legal if it resulted in no physical harm, wouldn't it?

[Kalbear]

Solmyr, ever hear an unborn child's heartbeat? That might help conceptualize that.

[howland_reed]

I don't understand people sometimes. This is such a cold, simplistic, clinical, money-loving way of looking at a deeply emotional and complicated problem. I cannot comprehend how people cannot see that this put in practice would be unbelievably horrific.

Let's look at it from a people-point of view, rather than an abstract point of view. In Howland Reed's brave new world, this law has been passed.

Mark and Emma are married, with no kids. Mark has a good job, but Emma has been unlucky in her career and is a low earner.

Emma has always dreamed of children, but they have had no luck conceiving. They use IVF, and it's a gruelling process, but finally the happy positive pregnancy test arrives. However, Mark finds he does not share Emma's joy. He never really wanted children - he only went along with it to make Emma happy, and the carefree girl he married is gone, replaced by a baby-obsessed bore. He has met this great new woman at work, and they have been falling in love while Emma was distracted by the IVF.

Mark demands a divorce. He also demands an abortion, because the money he'd pay in child support would interfere with his plans to form a new life with the wonderful woman he has fallen in love with. Emma is nothing to him any more, and he was never really invested in the baby.

Emma now has a choice: raise a child in poverty, or abort a dearly loved unborn child.

Do you still think your idea is a good one? If Emma was your sister or friend, could you look her in the eye and tell her that Mark is doing the right thing, and is perfectly entitled to abdicate responsibility?

First off, you've already misread my statement (which was an off-the-cuff idea), because I specifically limited it to children born out of wedlock, since I believe married fathers should be required to support their children no matter if they told their wife to get an abortion.

Look at it from the other spectrum, where the couple is not married, or hell, perhaps they're not even boyfriend/girlfriend. Perhaps the woman is a prostitute who told the man that her tubes are tied, but nonetheless gets pregnant. The man demands she get an abortion cause he hardly knows her. She refuses cause it's a "dearly beloved unborn child" or a miracle of God, and now the man has to pay child support for the next 18-25 years. Does this sound fair to you? Does he have no choice in the matter? All I'm proposing is that a man can petition the Court to have the woman abort the baby. But the woman can refuse, so long as she waives any child support from the father. If she wants to keep the baby, she has the legitimate right to do so, but if she does keep it over the father's objections, then she has to be ready to provide for the baby herself or through other means.

[Tempra]

.

You can't take human emotions out of the law. Otherwise, rape would be legal if it resulted in no physical harm, wouldn't it?

By physical harm, do you mean bruising? If so, a person can still be raped without bruising. Of course, I would think penetration of any kind by a person without consent would cause physical harm. Without penetration, there is no rape, at least in VA.

[MinDonner]

Well yeah. But it's not the bruising the rapist is being punished for.

[Seventh Pup]

Hey HR what do you think of my arguement?

[mormont]

Perhaps the woman is a prostitute who told the man that her tubes are tied, but nonetheless gets pregnant. The man demands she get an abortion cause he hardly knows her. She refuses cause it's a "dearly beloved unborn child" or a miracle of God, and now the man has to pay child support for the next 18-25 years. Does this sound fair to you?

Yes.

What kind of fool would this man have to be not to have realised that there is a chance, however small, that having sex with this woman, whatever the circumstances, could result in permanent consequences, such as paying for a child he didn't want? And if he's a fool, it's fair to me that he should pay the price of his foolishness, a price he was aware of in advance.

Suppose he caught an STD, instead of getting her pregnant. He would be laughed out of court, quite literally, if he said 'I'm suing you, because the reason I didn't use a condom is that you told me you were disease-free'. Similarly, he has to know that if he wants to control his reproduction, he has to wear a condom - and even then, as with STDs, there's still a risk. Nobody can guarantee you in advance that sex will be risk-free. That's the takeaway lesson from this whole mess.

Does he have no choice in the matter? All I'm proposing is that a man can petition the Court to have the woman abort the baby. But the woman can refuse, so long as she waives any child support from the father. If she wants to keep the baby, she has the legitimate right to do so, but if she does keep it over the father's objections, then she has to be ready to provide for the baby herself or through other means.

You insist on framing this as a question of balancing fairness between the man and the woman. If the woman gets something, the man has to get something in return. That's a fundamental misunderstanding of the entire issue.

[howland_reed]

Hey HR what do you think of my arguement?

Sorry, missed it.

I looked up the actual Roe v. Wade decision cause you made me question whether I misread dicta as part of the holding. But right in the Court's opinion, this is what they had to say about the right to privacy:

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.

There's also Ginsburg concurring opinion that states much the same. The Court didn't hold the right of privacy to simply mean that the woman has a right to her physical body, although that is part of it.

There is another distinction though between Roe v. Wade and any case a man would bring to the SC, in that there's no state action (except for requiring child support payments). The father is asking for more rights, in that he'd want a choice in the matter of abortion. In Roe v. Wade, on the other hand, it concerned a state statute that denied an existing right to women.

Which is pretty much to say, if this ever made it to the SC, they won't do anything about it, cause child support would be a right of the child, not the mother or father.

The only way to give the father an "objection" or "waiver of child support" would be through the legislature. Considering how hotly contested the issue of abortion itself is, there's slim to no chance anything would ever get passed through.

[howland_reed]

Yes.

What kind of fool would this man have to be not to have realised that there is a chance, however small, that having sex with this woman, whatever the circumstances, could result in permanent consequences, such as paying for a child he didn't want? And if he's a fool, it's fair to me that he should pay the price of his foolishness, a price he was aware of in advance.

Suppose he caught an STD, instead of getting her pregnant. He would be laughed out of court, quite literally, if he said 'I'm suing you, because the reason I didn't use a condom is that you told me you were disease-free'. Similarly, he has to know that if he wants to control his reproduction, he has to wear a condom - and even then, as with STDs, there's still a risk. Nobody can guarantee you in advance that sex will be risk-free. That's the takeaway lesson from this whole mess.

You insist on framing this as a question of balancing fairness between the man and the woman. If the woman gets something, the man has to get something in return. That's a fundamental misunderstanding of the entire issue.

Why not prohibit abortions as well for women then? What kind of "fool" of a woman would not take precautions to avoid getting pregnant when there are so many available contraceptives on the market?

You insist on framing this argument that the man should be "punished" for his "irresponsibility," but that's not the issue here. The issue is simply whether a father should have a choice, just as the mother, in whether to have their child or not.

[Brienne the Beauty]

First off, you've already misread my statement (which was an off-the-cuff idea), because I specifically limited it to children born out of wedlock, since I believe married fathers should be required to support their children no matter if they told their wife to get an abortion.

Frankly if Mark and Emma are not married, who cares? Lots of people don't get married these days, even if they have kids. We are not in Westeros where bastardy is a problem.

Look at it from the other spectrum, where the couple is not married, or hell, perhaps they're not even boyfriend/girlfriend. Perhaps the woman is a prostitute who told the man that her tubes are tied, but nonetheless gets pregnant. The man demands she get an abortion cause he hardly knows her. She refuses cause it's a "dearly beloved unborn child" or a miracle of God, and now the man has to pay child support for the next 18-25 years. Does this sound fair to you? Does he have no choice in the matter? All I'm proposing is that a man can petition the Court to have the woman abort the baby. But the woman can refuse, so long as she waives any child support from the father. If she wants to keep the baby, she has the legitimate right to do so, but if she does keep it over the father's objections, then she has to be ready to provide for the baby herself or through other means.

This is a rather silly scenario. The Mark/Emma situation is way more common than your rather far-fetched "duplicitous prostitute" scenario. I have heard of many men who would rather not pay for their children (conceived in a relationship with the mother) but never of a prostitute who has pulled off the trick you describe. You simply can't base laws on ludicrous edge cases.

In the scenario above, the prostitute would probably lose custody and her baby would go into a foster home and be adopted. The authorities don't like babies being raised by unbalanced prostitutes. Problem solved using existing law.

Even if it plays out as you say, then no, the woman should not be forced into an abortion. I believe strongly that women should have control over their bodies. How would you feel if a court order forced you to go into hospital for an unnecessary operation that you desperately did not want to have just to save someone else money?

[Brienne the Beauty]

You insist on framing this argument that the man should be "punished" for his "irresponsibility," but that's not the issue here. The issue is simply whether a father should have a choice, just as the mother, in whether to have their child or not.

The father cannot truly have this choice as the baby is not in his body. Blame God for that. There are some things that are just silly to rail against. You might as well be wailing against your lack of wings or venomous claws. Nature has decreed that the babies grow in the women, and we are not becoming seahorses any time soon. Unless you want fathers to be able to force abortions on their partners, which I'd say goes in the category of "body horror."

[howland_reed]

Frankly if Mark and Emma are not married, who cares? Lots of people don't get married these days, even if they have kids. We are not in Westeros where bastardy is a problem.

This is a rather silly scenario. The Mark/Emma situation is way more common than your rather far-fetched "duplicitous prostitute" scenario. I have heard of many men who would rather not pay for their children (conceived in a relationship with the mother) but never of a prostitute who has pulled off the trick you describe. You simply can't base laws on ludicrous edge cases.

In the scenario above, the prostitute would probably lose custody and her baby would go into a foster home and be adopted. The authorities don't like babies being raised by unbalanced prostitutes. Problem solved using existing law.

Even if it plays out as you say, then no, the woman should not be forced into an abortion. I believe strongly that women should have control over their bodies. How would you feel if a court order forced you to go into hospital for an unnecessary operation that you desperately did not want to have just to save someone else money?

1) Almost all common law has been derived from ludicrous, on the edge, cases.

2) I think the problem you have with my idea (which again, I see zero chance of ever being legislated), is that you see it as the woman being forced to have an abortion. Don't think of it as a "Court Order," that she has to comply with. Rather, think of it merely as a petition in which a father can just record his objection to the pregnancy with the Court, and if the mother insists on going through with the pregnancy (which would be the case since otherwise, it would never have gone to Court to begin with if she didn't want the baby either, or wanted to appease her boyfriend), then she effectively waives any mandatory child support from the biological father.